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In recent years, the high court has tended togingerly sidewith thesocial media behemothsthat have come before it, delivering wins for the industry but leaving fundamental questions unresolved about what the Founding Fathers might have thought about global platforms that bring millions of eyeballs to quirky cat videos but also misinformation and hate speech.

“We really don’t know about these things,” Justice Elena Kagan quippedduring argumentsin a 2023 case about whether Twitter and other platforms should be shielded from legal liability for their content curation.

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If a majority of justices appear to be embracing that claim, it would be a very bad sign for TikTok.

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“The ability to shape what 175 million Americans see on TikTok means that for the vast majority of Americans under the age of 30 who use TikTok as their primary news source, the Chinese government is controlling and shaping that news feed,” said Jamil Jaffer, a former chief counsel to the Senate Foreign Relations Committee who founded the National Security Institute at George Mason University.

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Jaffer, who served under former Republican Tennessee Sen. Bob Corker on the committee, was one of several former national security officials who submitted a brief to the Supreme Court backing the government.

But TikTok backers say the Biden administration, in defending the ban enacted by Congress, hasn’t provided concrete proof of Chinese abuse. The DC Circuit, though it sided with the administration, noted that officials had not provided “specific intelligence” showing the China “in the past or is now coercing TikTok into manipulating content” in US.

“The threat here is really nebulous,” said David Greene, civil liberties director at the Electronic Frontier Foundation.

Justice Amy Coney Barrett, a member of the court’s conservative wing who is oftenseen as a key vote,will be among the most important justices to watch during Friday’s hearing. That’s because the 2020 Donald Trump appointee is the only member of the bench to publicly touch on the issues at play in the case in recent months.

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“So a social-media platform’s foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny,” Barrett wrote. “Courts may need to confront such questions when applying the First Amendment to certain platforms.”

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“I expect that we have a preview of the court’s ultimate disposition in this case in Justice Barrett’s concurrence … where she really was looking to probably this law where she said that the First Amendment does not extend to foreign-owned corporations,” said Gus Hurwitz, a senior fellow at Penn Carey Law School who specializes in tech law and online speech issues.

“I think it’s pretty clear that Barrett wanted to be 100% clear that she was not deciding in the NetChoice case that the same protections that would apply to American platforms would necessarily apply to foreign platforms,” said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University. “But I think she was reserving the question rather than deciding it.”

One element to watch: whether any of the justices raise Trump and his incoming administration as a way to avoid resolving the weighty First Amendment questions at the center of the case.

In an extraordinary brief last month, Trumpasked the court to temporarily pause the law’s January 19 deadlineto give his administration “the opportunity to seek a negotiated resolution of these questions.”

“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government – concerns which President Trump himself has acknowledged,” attorneys for the president-elect wrote, referring to Trump’s own effort during his first term to ban TikTok.

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“So what do we do with what was then Twitter? I’m going to continue to call it Twitter because that’s what it is here, okay?” an exasperated Justice Sonia Sotomayor said during arguments in late 2023 in a case involving whether public officials could block voters from their social media accounts.

Friday, the court will be thinking about a tech platform that has an immenseresonance with teenagersand young adults. One survey found that17% of teenagers reportusing TikTok “almost constantly.”

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“The justices are not necessarily the most technologically sophisticated people,” Kagan told an audience in 2013. “The court hasn’t really ‘gotten to’ email.”

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