“Isn’t that a pretty paternalistic point of view? Don’t we normally assume that the best remedy for problematic speech is counter-speech?”
Are Alternatives Feasible?
The justices also debated whether less drastic measures could work.
Justice Sonia Sotomayor questioned why Congress didn’t simply block TikTok from sharing data with ByteDance.
Sotomayor asks:
“If the concern is data security, why wouldn’t Congress simply prohibit TikTok from sharing sensitive user data with anyone?”
Prelogar countered that ByteDance’s control over TikTok’s core algorithm makes such measures ineffective.
Prelogar responded:
“There is no reasonable way to create a true firewall that would prevent the U.S. subsidiary from sharing data with the corporate parent.”
Prelogar explains that TikTok relies on data flows between the U.S. and China.
Justice Amy Coney Barrett questioned whether TikTok could operate without ByteDance’s algorithm.
Barrett said:
“It seems to me like we are saying to ByteDance, ‘We want to shut you up.’”
Barrett suggests that separating TikTok from ByteDance may fundamentally change the app.
What’s Next?
If the law is upheld and ByteDance doesn’t divest, TikTok could be banned in the U.S. by January 19.
TikTok’s legal team warned that such a ban would set a dangerous precedent.
Francisco said:
“If the First Amendment means anything, it means that the government cannot restrict speech in order to protect us from speech.”
The government argues the law is narrowly focused on security risks and doesn’t target speech.
Prelogar said:
“The Act leaves all of that speech unrestricted once TikTok is freed from foreign adversary control.”
The Supreme Court is expected to rule before the deadline. This decision could shape how foreign-owned tech platforms are handled in the U.S. in the future.
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