Supreme Court to hear TikTok case before ban deadline

The U.S. Supreme Court has decided to hear TikTok’s challenge to a law that would ban the popular social media app next month unless its Chinese owner sells it.

The case is set for Jan. 10, nine days before TikTok is scheduled to be shut down in the U.S.

In announcing its decision, the court instructed lawyers for TikTok and the government to prepare arguments around the question of whether the impending ban, which lawmakers feel is needed to block potential meddling by Chinese authorities, would violate the 1st Amendment.

With time running out before the ban takes effect Jan. 19, the justices agreed to decide the TikTok case on a fast-track basis, scheduling two hours of oral argument.

“We’re pleased with today’s Supreme Court order,” TikTok spokesperson Michael Hughes said in a statement. “We believe the Court will find the TikTok ban unconstitutional so the over 170 million Americans on our platform can continue to exercise their free speech rights.”

The legal battle over TikTok poses a conflict between the American tradition of wide-open free speech versus the potential national security threat of a Chinese-owned company that collects the personal data of its users.

TikTok’s future in the U.S. has been uncertain since 2020, when then-President Trump moved to shut down the short-form video app, which people use to share dance routines, news stories, recipes and funny videos.

Trump and others raised the prospect that ByteDance, which owns TikTok, could assist the Chinese government by sharing data it collects from its American users; embedding malicious software in the app; or helping to spread disinformation.

That set off years of back-and-forth between TikTok and the U.S. government. In April, President Biden signed a law that required ByteDance to sell its U.S. operations to a non-Chinese entity or be shut down.

The companies responded by suing the U.S. government in May, saying a ban would violate 1st Amendment rights. They also said that the new law “offers no support for the idea” that TikTok’s Chinese ownership poses national security risks.

“Speculative risk of harm is simply not enough when First Amendment values are at stake,” TikTok and ByteDance said in their filing.

The U.S. Court of Appeals for the District of Columbia Circuit upheld the law two weeks ago, paving the way for a Supreme Court showdown.

In a 3-0 decision, the D.C. Circuit Court rejected TikTok’s free-speech claim, saying the government is not opposed to the content on the social media platform, but to the owner of it.

Judge Douglas Ginsburg cited testimony from the government’s security experts who concluded that they “did not trust” TikTok’s owners to protect the privacy of Americans. That is not a problem of social media in general, he said.

“TikTok is the only global platform of its kind that has been designated by the political branches as a foreign adversary controlled application,” Ginsburg wrote in the Dec. 6 decision.

Like the appellate court, the Supreme Court justices could be wary of overturning the judgment of Congress and two presidents on a matter of national security.

In the spring, a few notable names announced their interest in buying the U.S. portion of TikTok, including Treasury Secretary Steven Mnuchin, who said he was assembling an investor group. Since the law passed, however, there has been little public indication of a possible sale.

On Wednesday, another interested buyer, former Dodgers owner Frank McCourt, said he expected the Supreme Court to uphold the law and reiterated his plans to make an offer along with other investors.

The group’s proposal, McCourt said in a statement, would “migrate this vibrant community to an American-made tech stack that gives people control of their data and embraces a transparent approach to content recommendation and moderation.”

Free speech organizations have warned that enforcing the ban would set a bad precedent.

“We should be concerned about this law as Americans who engage with one another on social media, but we should also be concerned about the global system of free expression,” said George Wang, staff attorney at the Knight First Amendment Institute.

If the law is upheld, he said, it’s “hard to see where the stopping point is.”

“Future bans of social media platforms are possible, but maybe also other forms of media,” Wang said. “It really blesses the government’s ability and authority to shut down entire platforms for speech on pretty vague national security justifications.”

TikTok on Monday said that its estimates showed that small businesses on the platform would lose “more than $1 billion in revenue and creators would suffer almost $300 million in lost earnings in just one month” unless the ban was halted.

TikTok’s lawyer before the high court, Noel Francisco, is a familiar figure for the justices, having served as U.S. solicitor general during Trump’s first term.

Chang reported from Los Angeles and Savage from Washington.