Chloe Miracle-Rutledge is a JURIST Supreme Court Correspondent and a 2L at Georgetown University Law Center in Washington, DC.

On Friday, I braved the cold to sit in the press box for the Supreme Court’s oral arguments in TikTok, Inc. v. Garland. This time-sensitive case concerns a federal law that would require social media giant TikTok to shut down unless it is sold by its Chinese parent company, ByteDance, by January 19.

The Foreign Adversary Controlled Applications Act, the law being challenged in the case, names China as a foreign adversary and bans apps controlled by it. The Petitioners are TikTok, Inc. and numerous American TikTok “creators” who believe the Act violates their First Amendment speech rights. After the DC Circuit Court ruled against them, Petitioners filed an emergency application for injunction with the Supreme Court, asking for a preliminary injunction to prevent the law from going into effect. The Respondent is the federal government, which thinks the Act should go into effect because it protects Americans from the national security risks posed by ByteDance, which the US claims could assist the Chinese government in collecting data on American citizens.

On my way to the Court, as I passed snow-covered federal buildings and metal fencing in place for the upcoming Presidential inauguration, I wondered what would be waiting for me at the Court. The case has received a great deal of media attention but also seems to lack the inherent political divide of other constitutional cases, such as the gender-affirming care for minors case that I attended last month. This seemed to be reflected in the atmosphere outside the Court, which was remarkably quiet, both before and after arguments. Aside from the standard media presence and Court security, I only saw one person with a sign, that read “SAVE TIKTOK,” and a few people with iPhone tripods going live on TikTok in front of the Court.

But the quiet atmosphere did not carry over into the oral arguments, where attorneys on both sides faced a hot bench as the Justices posed tough questions for over two and a half hours. I sat closer to the Justices this time than in the more highly-attended arguments for United States v. Skrmetti, a case I covered last month concerning whether Tennessee Senate Bill 1’s (SB1) ban on gender-affirming care for minors violates the Equal Protection Clause. Still, but my view was still blocked by a set of red velvet curtains and an enormous marble column. While it is a cool party trick that I can recognize the Justices by their voices alone now, I made a mental note to start covering some less broadly publicized cases to ensure a seat closer to the front.

Petitioners’ Arguments

Noel Francisco, former Solicitor General, and current Big Law partner arguing for TikTok, began oral arguments by explaining the video streaming service, which boasts some 170 million domestic users, is a US company speaking in the US and that the Act’s prohibitions are based on content, triggering a heightened level of review that government cannot pass. Jeffrey Fisher, a leading Supreme Court practitioner representing TikTok creators, echoed Francisco’s arguments and maintained that the Act restricts the First Amendment rights of American creators and that the government cannot pass heightened review because “mere ideas do not constitute a national security threat.”

The Petitioners’ reasoning followed the typical constitutional test that arises in First Amendment cases: if the First Amendment applies (as it does when US citizens and companies are “speaking”) and if the law is content-based (as TikTok contends here) then strict scrutiny applies and the government has the steep task of proving that the law furthers a “compelling interest” and is “narrowly tailored.”

But the Justices did not see things quite as clearly as Francisco and Fisher. Justice Clarence Thomas asked both lawyers for Petitioners what “speech” is implicated here, especially since the Act has no direct effect on TikTok or American creators, but rather on ByteDance.

Chief Justice John Roberts also maintained that Congress is not concerned with content, but “about what the foreign adversary is doing.” Justice Amy Coney Barrett echoed these sentiments by questioning whether the Act is about TikTok’s speech or ByteDance’s.

Justices also brought up that any effect on TikTok’s or its creators’ speech was an “incidental effect” and that, if ByteDance chooses to divest, TikTok could find a new algorithm. Justice Ketanji Brown Jackson questioned whether this meant the case was truly about speech, or rather about a company’s choice of who to associate with since TikTok could still function after ByteDance divests.

Francisco and Fisher argued that even if the Act targets ByteDance, it still burdens TikTok and creators’ speech directly, which triggers First Amendment concerns. Both Petitioners conceded that while data security concerns can be compelling in this context, the government’s concern with content manipulation is not compelling because it hinges on the substance of speech, thus failing strict scrutiny.

Respondent’s Arguments

Solicitor General Elizabeth Prelogar argued on behalf of the federal government, saying that China’s control of TikTok poses a “grave threat” to national security, including the collection of unprecedented amounts of personal data. Prelogar maintained that Congress was not seeking to suppress specific content through the Act, but rather attempting to decrease national security concerns. She also argued that the Act passes any level of review because it is narrowly tailored “to fix the thing that’s creating the problem.”

But the Justices pushed back against her claims. Justice Sonia Sotomayor questioned what “covert” data collection means since everyone knows that any site or search engine is collecting their data. Prelogar maintained China’s involvement in TikTok was still covert and unknown to users and that disclosure would not give Americans enough notice. But Justice Neil Gorsuch asked whether this approach was paternalistic, since all editorial decisions, like newspapers, include some kind of covert selection or manipulation.

Justice Barrett asked whether Americans still have a right to receive speech and information from China, even if the speaker has no First Amendment rights. Justice Elena Kagan similarly made a historical analog to the Cold War, wondering whether Congress could have forced the US Communist Party to divest from any foreign groups. Prelogar maintained that these scenarios would not stand if Congress’s motive was to suppress speech, but that here Congress just wants to cut out China from a platform where the same types of speech could be made in China’s absence.

The Trump Effect

There were also numerous references to the amicus brief filed by President-elect Donald Trump which urges the Court to delay the Act’s start date until the incoming leader takes office so his administration can “pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok.” Justices Gorsuch and Barrett both asked whether the new administration could extend the January 19 deadline. Prelogar responded that it was a statutory interpretation question she was “not prepared to take a position on.” Francisco said that after January 19 we may be “in a different world,” hinting that Trump could impact the situation. Justice Brett Kavanaugh asked whether the president could choose not to enforce this law. And toward the end of the arguments, Justice Samuel Alito asked Prelogar whether the Court has the authority to issue an administrative stay, what Trump calls for in his amicus brief, to which Prelogar responded that the Court likely could if necessary for their consideration of the case.

Potential Outcomes and Impacts

At the end of the oral argument, I craned my head to look through a golden metal gate and see the Justices file out of the courtroom, walked back to the pressroom to put my snow boots on, and eavesdropped on reporters discussing the case. Many news outlets are publishing headlines that seem to predict the case’s outcome. But I left the argument feeling uncertain. Many Justices clearly took issue with Petitioner’s arguments that speech was implicated and that the law was content-based, especially considering that the law targets ByteDance, not TikTok. But the Justices also pressed Prelogar, quite intensely at times, and showed skepticism that the effects of the Act are truly content-neutral. The questions also did not fall along clear ideological lines and some Justices appeared to signal an openness to issuing Trump’s desired administrative stay.

As for the real-world effects of a TikTok ban, I spoke with Camille Worsham, @camelscrafts, an American TikTok creator who has been closely following this legal battle. Camille, a gifted artist with a degree in design, started showcasing her work and creative process on TikTok while on bedrest during a high-risk pregnancy. Camille soon gained 200,000 followers and started making a couple thousand dollars a month on TikTok, which she says was life-changing for her and her family. Anticipating a ban on TikTok, Camille has started to transition to YouTube, but she knows she won’t reach the same audiences and generate the same income without TikTok. She doesn’t expect that “existing platforms will easily integrate with a sudden onslaught of users.” And Camille explained that even if ByteDance divests and sells TikTok, it still would not be the same because ByteDance would not sell the algorithm, which she says is what makes TikTok so great for creators.

Camille’s and other creators’ fates will be decided by January 19– we’ll either have a decision from the Court or an administrative stay that will allow the incoming President to pursue negotiation. Until then, I’ll be mailing my family postcards from the Supreme Court gift shop and waiting to report more as this case develops.

The audio and transcript of this oral argument are available here.