WASHINGTON — The Supreme Court is set to hear pivotal arguments regarding TikTok, a hugely popular social media platform utilized for entertainment and information by nearly half of the U.S. population. This case marks a significant intersection of free speech issues and national security concerns, positioning the future of TikTok in the balance.
TikTok has announced it will cease operations in the United States by January 19, unless the Supreme Court intervenes by nullifying or delaying the implementation of a law aimed at mandating the sale of TikTok by its China-based parent company, ByteDance.
As the court grapples with this pressing matter, there is also a request from President-elect Donald Trump, who has receded from his previous stance on banning the platform, seeking a pause on the case to explore a “political resolution” with his incoming administration. It remains uncertain how the justices will incorporate the views of the incoming Republican administration, especially given the unusual attempt to sway the court.
TikTok, along with its parent company ByteDance and various users and content creators, argues that the law severely infringes upon the constitutional right to free speech. Attorneys for advocates of TikTok emphasize the significant number of people affected by this case, stating that it is rare for the court to take on a free-speech issue of such widespread personal impact.
With financial consequences looming, many creators are concerned that a decision against TikTok may jeopardize their livelihoods, prompting them to consider alternative platforms.
This case exemplifies the challenges the Supreme Court encounters when engaging with modern communication platforms in which the justices may lack extensive familiarity, yet often engage in significant discussions surrounding speech-related restrictions. The Biden administration supports the law enacted in April, which gained significant bipartisan backing in Congress, arguing that TikTok’s ties to ByteDance represent a serious national security risk. Officials maintain that the Chinese government could potentially compel ByteDance to disclose information about TikTok’s American users or manipulate the flow of information on the platform.
However, TikTok counters that the government has offered no evidence to suggest that such a breach of security has ever occurred, stating that free speech should not be restricted based on speculative fears.
In December, a trio of appellate judges—two appointed by Republican presidents and one by a Democrat—unanimously upheld the law and dismissed the First Amendment claims put forth by TikTok. Adding urgency to the situation, the court’s deliberations occur just nine days before the enforcement of the law is due to commence and merely ten days prior to the inauguration of a new administration.
In a move that resembles campaign rhetoric more than legal discourse, Trump’s legal representatives requested that the court temporarily halt the enforcement of the TikTok ban while simultaneously avoiding a conclusive ruling on the matter.
The brief submitted claims that Trump is uniquely suited to negotiate a solution that addresses both the platform’s survival and the expressed national security issues, supported by the political clout he wields. Trump’s own campaign strategy relied heavily on TikTok, particularly to engage younger audiences, and he notably met with the platform’s CEO at his Mar-a-Lago estate in December. The former president has amassed a following of 14.7 million on TikTok.
The Supreme Court has allocated two hours for oral arguments, although it is anticipated that the session may extend beyond that timeframe. Renowned lawyers will present arguments, with Solicitor General Elizabeth Prelogar defending the Biden administration’s law, while Noel Francisco, Trump’s previous solicitor general, will advocate on behalf of TikTok and ByteDance. Meanwhile, Stanford Law professor Jeffrey Fisher will represent content creators and users in what marks his 50th appearance before the high court.
Should the law be enacted, the responsibility of enforcement will fall to Trump’s Justice Department, with TikTok’s legal team suggesting that the new administration could potentially alleviate the law’s harshest implications. However, they warn that even a brief shutdown—just one month—could result in significant losses, including one-third of daily users and substantial advertising revenue.
As the court considers the case, it will determine the standard of review applied to the law. If subject to the strictest scrutiny, such legislation rarely succeeds; however, two judges on the appellate court previously remarked that the law might be one of the few exceptions capable of withstanding such scrutiny.
TikTok, its users, and supporting briefs are urging the court to implement strict scrutiny to invalidate the law. Conversely, the Biden administration, along with its allies, cites existing restrictions on foreign ownership in various sectors as a basis for countering Chinese influence through the TikTok measure.
A ruling on this matter could be delivered within days.
