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Free speech rights pitted against US security concerns

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Jan. 19 deadline looms for TikTok sale or US ban

By David Shepardson

WASHINGTON, Jan 11 (Reuters) - The lawyer for TikTok and

its Chinese parent company ByteDance offered a warning during

Supreme Court arguments over a law that would compel the sale of

the short-video app or ban it in the United States: If Congress

could do this to TikTok, it could come after other companies,

too.

The law, which was the subject of arguments before the nine

justices on Friday, sets a Jan. 19 deadline for ByteDance to

sell the popular social media platform or face a ban on national

security grounds. The companies have sought, at the very least,

a delay in implementation of the law, which they say violates

the U.S. Constitution's First Amendment protection against

government abridgment of free speech.

Noel Francisco, representing TikTok and ByteDance, argued

that Supreme Court endorsement of this law could enable statutes

targeting other companies on similar grounds.

"AMC movie theaters used to be owned by a Chinese company.

Under this theory, Congress could order AMC movie theaters to

censor any movies that Congress doesn't like or promote any

movies that Congress wanted," Francisco told the justices.

The justices signaled through their questions during the

arguments that they were inclined to uphold the law, although

some expressed serious concerns about its First Amendment

implications.

TikTok is a platform used by about 170 million people in the

United States, roughly half the country's population. Congress

passed the measure last year with overwhelming bipartisan

support, as lawmakers cited the risk of the Chinese government

exploiting TikTok to spy on Americans and carry out covert

influence operations.

Jeffrey Fisher, the lawyer representing TikTok content

creators who also have challenged the law, noted during the

Supreme Court arguments that Congress with this measure was

focusing on TikTok and not major Chinese online retailers

including Temu.

"Would a Congress (that is) really worried about these very

dramatic risks leave out an e-commerce site like Temu that has

70 million Americans using it?" Fisher asked. "It's very curious

why you just single out TikTok alone and not other companies

with tens of millions of people having their own data taken, you

know, in the process of engaging with those websites and

equally, if not more, available to Chinese control."

Democratic President Joe Biden signed the measure into law and

his administration is defending it in this case. The deadline

for divestiture is just one day before Republican Donald Trump,

who opposes the ban, takes office as Biden's successor.

'FOREIGN ADVERSARIES'

Solicitor General Elizabeth Prelogar, arguing for the Biden

administration in defending the law, said it was crucial that it

take effect on Jan. 19 as scheduled in order to force ByteDance

to act on divestiture.

"Foreign adversaries do not willingly give up their control

over this mass communications channel in the United States,"

Prelogar said.

"When push comes to shove, and these restrictions take

effect, I think it will fundamentally change the landscape with

respect to what ByteDance is willing to consider. And it might

be just the jolt that Congress expected the company would need

to actually move forward with the divestiture process," Prelogar

said.

If the ban takes affect on Jan. 19, Apple ( AAPL ) and

Alphabet's Google would no longer be able to offer

TikTok for downloads for new users but existing users could

still access the app. The U.S. government and TikTok agree that

app would degrade and eventually become unusable over time

because companies would not be able to offer supporting

services.

The Supreme Court also debated whether the possibility of

TikTok being used for covert influence campaigns or propaganda

purposes by China justified the banning it.

"Look, everybody manipulates content," Francisco told the

court. "There are lots of people who think CNN, Fox News, the

Wall Street Journal, the New York Times are manipulating their

content. That is core protected speech."

Trump on Dec. 27 urged the court to put a hold on the Jan. 19

deadline to give his incoming administration "the opportunity to

pursue a political resolution of the questions at issue in the

case."

Under the law, the U.S. president has the power to extend

the Jan. 19 deadline for 90 days, but under circumstances that

do not appear to apply to the current situation in which

ByteDance has made no apparent effort to sell TikTok's U.S.

assets. The law mandates that the president certify that

significant progress has been made toward a sale, with binding

legal agreements.

Regardless, Trump does not become president until after the

deadline - though Francisco said "we might be in a different

world" once Trump is back in the White House.

Justice Brett Kavanaugh asked Prelogar whether the president

could "say that we're not going to enforce this law?"

"I think as a general matter, of course the president has

enforcement discretion," Prelogar said.

"Again, that's one of the reasons why I think it makes

perfect sense to issue a preliminary injunction here and simply

buy everybody a little breathing space," Francisco said.