It Sure Doesn’t Seem Like the Supreme Court Is Going to Save TikTok

TikTok could be banned in the United States in a little over a week. Its last hope to stay in app stores is the Supreme Court, which on Friday heard oral arguments in the massively popular platform’s case to block the law that could lead to its digital excommunication.

The justices did not seem very sympathetic to TikTok’s arguments.

Last month, TikTok made an emergency appeal to the nation’s highest court after the D.C. Court of Appeals ruled to uphold a law passed last April that commanded TikTok’s Chinese parent company ByteDance to sell the application, or face a ban within the United States. The ban is slated to go into effect on Jan. 19, one day before Donald Trump takes office. 

During Friday’s oral arguments, TikTok and the Justice Department argued over the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act. TikTok has argued the law violates the First Amendment, while the Justice Department has defended the law as a congressional act made in America’s national security interest.

TikTok attorney Noel Francisco claimed that the Biden administration and Congress had failed to consider less restrictive means to assuage security concerns surrounding TikTok’s relationship with China before defaulting to a ban, as well as that the government “has no valid interest in preventing foreign propaganda.”

Solicitor General Elizabeth Prelogar argued that if the speech of the 170 million Americans who use the app would not be impaired of ByteDance divested, and that the law is simply “trying to surgically remove the ability of foreign adversary nation to get our data and to be able to exercise control over the platform.”

Francisco asked the court to provide a stay on the ban’s enforcement to “simply buy everybody a little breathing space” before the Jan. 19 deadline goes into effect. He noted that Trump has expressed willingness to intercede on the app’s behalf after he is sworn in as president, and could find a solution that doesn’t result in a ban.
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“What happens after January 19th, if you lose this case? Can you just spell that out?” Justice Brett Kavanaugh asked at one point. 

“We go dark. Essentially, the platform shuts down,” Francisco responded. “Unless President Trump exercises his authority […] but he can’t do that on January 19.”

Chief Justice John Roberts seemed unconvinced. “Are we supposed to ignore the fact that the ultimate parent is in fact subject to doing intelligence work for the Chinese government?” he asked at one point. Kavanaugh, meanwhile, raised a hypothetical scenario in which a young person on TikTok could go on to work for federal agencies such as the FBI or State Department, and thus become a security liability, or outright spies for foreign adversaries. 

Liberal justices also seemed skeptical, which doesn’t bode well for TikTok. “Yesterday I thought TikTok would not prevail; today I think it may not get any votes,” Cornell law professor Guatam Hans wrote on Bluesky as the arguments were taking place. “Argument was less one-sided than in the D.C. Circuit and the government was asked hard questions. But I still think the Court will vote to uphold the law,” added University of Minnesota law professor Alan Rozenshtein, noting that he expects at least six justices to side with the government.

The Supreme Court could also stay the law to give Trump time to weigh in, as Trump requested in an amicus brief late last month, noting that he “opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office.” 
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“President Trump is one of the most powerful, prolific, and influential users of social media

in history […] Further, President Trump is the founder of another resoundingly successful social-media platform, Truth Social,” the filing reads. “This gives him an in-depth perspective on the extraordinary government power attempted to be exercised in this case—the power of the federal government to effectively shut down a social-media platform favored by tens of millions of Americans, based in large part on concerns about disfavored content on that platform.” 

The move is a sharp departure from his attitude towards the app during his first term in office. In 2020, Trump issued multiple executive orders attempting to block American entities from conducting business with the TikTok, and commanding ByteDance to divest from its subsidiary company. He warmed to the app last year, and has cited how well his content performs on it.

It remains to be seen whether Trump get the chance to block the ban and keep TikTok alive in the United States. As of now, the fate of the app used by 170 million Americans rests with the Supreme Court.