TikTok’s Fate Arrives at the Supreme Court

The fate of TikTok in the United States will soon be in the hands of the Supreme Court, as the Justices hear oral arguments Friday over a law that could shut down the popular social media platform.

At issue is the constitutionality of legislation passed by Congress and signed into federal law in April 2024 that could force TikTok’s Chinese owners to sell the app to a U.S. company or face an outright ban in the country. The law sets a Jan. 19 deadline for TikTok’s sale, citing national security concerns about the app's foreign ownership and potential influence over American users.

With over 170 million users in the U.S., TikTok has become a cultural juggernaut, influencing everything from political discourse to entertainment trends. But the government argues that the app, owned by the Chinese company ByteDance, poses a national security risk, particularly over the potential for Chinese influence on the platform’s algorithms and access to sensitive data. 

The Supreme Court agreed to expedite the case, though it’s unclear how soon a decision might come. Legal experts say the case is complicated because it pits the government’s national security concerns against the First Amendment rights of millions of Americans who use TikTok to express themselves, share information, and engage in political discourse. “If the Court upholds the law, it will almost certainly do so on relatively narrow grounds,” says Alan Rozenshtein, an associate professor at the University of Minnesota Law School. “It might not tell us a lot about social media regulation generally.”

The Biden Administration, defending the law, argues that the government has the constitutional authority to regulate foreign-owned entities that may pose a threat to national security. The Administration asserts that TikTok’s Chinese ownership provides a potential gateway for the Chinese government to access vast amounts of data on American citizens, possibly leveraging the platform for covert influence operations. In its Supreme Court brief, the Justice Department contends that the law does not restrict speech but addresses the specific issue of foreign control over a vital communication platform.

By contrast, TikTok’s legal team and a coalition of app users argue that the law violates the First Amendment, which protects free speech. They assert that TikTok’s algorithms and editorial choices are inherently expressive, shaping the content that millions of Americans consume every day. TikTok, in its brief, emphasized that the government hasn’t furnished concrete evidence that ByteDance has manipulated content or censored users at the direction of the Chinese government. The company argues that simply requiring disclosure of foreign ownership would be a far less restrictive way of addressing national security concerns, without resorting to a full ban.

The case presents novel questions about the intersection of national security, foreign influence, and free speech in the digital age. “Rarely, if ever, has the Court confronted a free-speech case that matters to so many people,” a brief filed on behalf of TikTok creators reads. 

The legal battle over TikTok has attracted unusual attention due to its political and cultural significance. Congress passed the law that would force a sale in April with bipartisan support as lawmakers from both parties have been uneasy over the app’s ties to China. But TikTok has fought the law at every turn, arguing that the U.S. government is overstepping its bounds by attempting to regulate foreign ownership of a private company.

In December, a federal appeals court upheld the law, ruling that the government has a national security interest in regulating TikTok in the U.S. 

The case also finds itself intertwined with the incoming administration of President-elect Donald Trump, who takes office just one day after the law is set to go into effect. Trump, who has offered inconsistent views on TikTok in the past, has recently expressed an interest in saving the platform. In late December, Trump filed an unusual amicus brief urging the Supreme Court to delay its decision until after his inauguration, suggesting he could broker a resolution between TikTok and Congress once in office. The brief, submitted by John Sauer, the lawyer Trump has nominated for solicitor general, refers to Trump as “one of the most powerful, prolific, and influential users of social media in history.”

“This unfortunate timing,” his brief said, “interferes with President Trump’s ability to manage the United States’ foreign policy and to pursue a resolution to both protect national security and save a social-media platform that provides a popular vehicle for 170 million Americans to exercise their core First Amendment rights.”

Trump met with TikTok CEO Shou Chew at Mar-a-Lago last month. Hours before that meeting, Trump said he has a “warm spot in my heart for TikTok” because he made gains with young voters in the presidential election. “And there are those that say that TikTok has something to do with it.”

While Trump’s brief has garnered attention, the Court’s focus will likely remain on the core constitutional issues at stake, says Rozenshtein. “Supreme Court Justices throughout history do not want to antagonize the President unnecessarily,” he says, “but at the same time, what Trump is asking for is lawless…There's no basis in law for the court to delay a duly enacted law for some indeterminate amount of time so as to give the President the ability to do something unspecified.”

While it’s difficult to predict how the Court will rule, its involvement signals that the Justices may have reservations about the law’s impact on free speech. Last year, the Court signaled social media platforms have the same First Amendment rights as newspapers and other publishers, and TikTok’s defenders argue that the app’s role in free speech is similar to traditional media outlets.

Should ByteDance be forced to sell TikTok to an American company, a number of potential options could quickly emerge. Project Liberty, founded by billionaire Frank McCourt, announced on Thursday that it has made a formal offer to ByteDance to acquire TikTok's U.S. assets bankrolled by a consortium of investors interested in pursuing a "peoples bid" for TikTok, including billionaire and Shark Tank host Kevin O’Leary. A sale could be worth $20 billion to $100 billion, depending on how the U.S. part of TikTok is split from its parent company. (TikTok employs roughly 7,000 people in the U.S.)