"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."