Supreme Court oral arguments held on Friday signal a pivotal moment for TikTok in the United States. Experts suggest the app’s survival is increasingly uncertain.
The Supreme Court deliberated on a high-stakes First Amendment case that could determine whether TikTok remains accessible in the U.S. The case hinges on a law enacted last year, which, if upheld, could lead to TikTok’s removal from app stores by January 19. For over two hours, justices heard arguments from TikTok’s legal team, content creators, and the U.S. government, weighing the app’s free speech implications against national security concerns.
Legal experts told WIRED that the justices appeared unconvinced TikTok would prevail. While some expressed concern about the law’s potential First Amendment violations, they acknowledged the app’s perceived risks to national security.
TikTok’s attorney, Noel Francisco, argued that banning the app violates the free speech rights of TikTok and its users. Jeffrey Fisher, representing creators, emphasized that cutting off access to TikTok’s algorithm would stifle a vital platform for expression. On the other hand, Solicitor General Elizabeth Prelogar, representing the U.S. government, maintained that the law primarily addresses security risks by severing TikTok’s ties to ByteDance, its Chinese parent company.
“This law isn’t about regulating speech but about protecting against vulnerabilities that could be exploited by a foreign adversary,” Prelogar stated. In contrast, Francisco rebutted, “The government cannot restrict speech under the guise of protecting us from it. This law conflicts with the First Amendment at every turn.”
The justices grappled with these arguments. Some, like Justice Brett Kavanaugh, highlighted the government’s strong rationale for addressing data security. Others, including Justices Elena Kagan and Neil Gorsuch, questioned whether TikTok’s algorithm poses a unique threat compared to those of other social media platforms.
National Security vs. Free Expression
For years, U.S. officials have warned about TikTok’s potential to influence public opinion and collect user data for the Chinese government. While TikTok denies sharing U.S. data with ByteDance or Chinese authorities, officials, including FBI Director Christopher Wray, have cited concerns about surveillance and manipulation. These apprehensions prompted legislative action after attempts to negotiate a security deal—dubbed “Project Texas”—between TikTok and the Biden administration failed.
The resulting Protecting Americans From Foreign Adversary Controlled Applications Act mandates that ByteDance sell TikTok or face a ban. Signed into law in April, the act sparked lawsuits from TikTok and its users, who argue the measure infringes on their constitutional rights. A federal appeals court upheld the law in December, leaving TikTok’s Supreme Court appeal as its last hope.
At Friday’s hearing, Justice Ketanji Brown Jackson noted that the app could theoretically continue operating if it separates from ByteDance. “TikTok can run its algorithm independently as long as it’s no longer associated with ByteDance,” she said. However, TikTok’s legal team countered that such a requirement effectively dismantles the platform.
The Implications of a Ban
If the ban is upheld, TikTok would be removed from Apple and Google app stores in the U.S., halting new downloads. Existing users might retain access temporarily but would face app degradation over time due to the lack of updates. Internet hosting and data providers would also be prohibited from servicing the app, potentially forcing it offline altogether.
Tech law expert Blake Reid observed that the justices focused heavily on TikTok’s corporate structure, leaving little room to debate the broader implications of data privacy and national security. “The government’s national security argument is not without weaknesses, but TikTok’s team spent so much time addressing structure that they missed opportunities to challenge those claims,” Reid said.
Alan Rozenshtein, a former Department of Justice national security adviser, noted the justices appeared more sympathetic to the government’s concerns. “It’s unlikely TikTok can secure the five votes necessary to strike down the law,” he said. He identified Justices Sotomayor, Gorsuch, and possibly Kagan as TikTok’s best chances for support but doubted their alignment would be enough.
What’s Next?
The Supreme Court has not indicated when it will rule, but analysts expect a decision soon. TikTok’s legal team has asked the court to issue a stay or injunction to delay the ban’s enforcement, but the justices gave no sign of granting such relief.
In a surprising twist, former President Donald Trump filed an amicus brief urging the court to halt the ban, promising to broker a “political solution” if reelected. “President Trump alone has the expertise and political will to save TikTok while addressing national security concerns,” his attorney wrote. The court has yet to respond to the filing.
Should the ban take effect, ByteDance’s divestment or a political intervention may be TikTok’s only paths forward. For now, the app’s future—and that of its millions of U.S. users—hangs in the balance
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