"Some justices, however, were unconvinced that the law necessarily raises a First Amendment issue. Justice Clarence Thomas asked Francisco how a restriction on ByteDance’s ownership of TikTok created any limitations on TikTok’s speech.
Justice Elena Kagan echoed Thomas’s skepticism. If the law only targets ByteDance, which does not have any First Amendment rights because it is a foreign corporation, she asked Francisco, how does that implicate TikTok’s First Amendment rights? TikTok can still use whatever algorithm it wants, Kagan observed.
Justice Amy Coney Barrett also appeared to agree at times. The law, she simply requires ByteDance to divest TikTok. A shut-down by TikTok, she suggested, would be the consequence of ByteDance’s choice not to do so.
Other justices appeared persuaded by the government’s invocation of national security concerns. Chief Justice John Roberts observed that, although Francisco contended that TikTok is a U.S. company, Congress had concluded that the “ultimate company that controls” TikTok is subject to Chinese laws, including an obligation to assist the Chinese government with intelligence work. “Are we,” Roberts queried, “supposed to ignore that?”
Justice Brett Kavanaugh noted the government’s contention that China is using TikTok to access information about millions of U.S. citizens, and in particular young people, and could in the future use that information to try to recruit spies or manipulate future U.S. officials. That “seems like a huge concern for the future of” the United States, Kavanaugh observed."
She was, at times, being overtly mocked with quotes from judges like, "That's your best argument is that the average American won't be able to figure out that the cat feed he's getting on TikTok could be manipulated, even though there's a disclosure saying it could be manipulated?" Prelogar in general found herself struggling to defend the claim that the attempted ban was based on data access and not content (which would be unconstitutional), why there were no alternatives if the claims were based solely on data access, and the implications for any other foreign company that has access to user data (which is basically all of them). TikTok was met with some tough questioning but generally responded competently.
[1] - https://www.scotusblog.com/2021/12/majority-of-court-appears...
[2] - https://www.techpolicy.press/transcript-us-supreme-court-ora...
https://www.bloomberg.com/news/articles/2025-01-17/tiktok-ba...
Yet his opinion was almost entirely critical of the arguments that justified such. And it also seemed to include misinformation (unless it happens that I'm misinformed) suggesting that the TikTok app could access "any data" - a term which he himself put in quotes and also italicized - about anybody in a user's contact list. He said it included, but was not limited to photos and personal information. And this leaking of data of non-consenting users was apparently a significant part of the case. I'd be beyond surprised if the Android/Apple APIs bleed any substantial amount of information through contact access alone.
Interesting times we live in, as always!
Don't trust regular media to give you fair assessments of this case. ScotusBlog generally has excellent and impartial analysis of cases from experienced lawyers, and this is no exception. [1] They described the overall court as skeptical of the claims. Skeptical does not mean fully in bed with one side or the other, but simply that - skeptical. It's also important to bear in mind is that hearings are, by their very nature, off the cuff. And the implications (or factualness) of what the justices believe may change as they consider the implications of a decision, and factualness of their assumptions.
Again the thing I would say is that if this was an obvious case, the justices would not be waiting to the last second. My guess is that we'll probably see an announced delay+injunction on Friday.
[1] - https://www.scotusblog.com/2025/01/supreme-court-skeptical-o...