US Supreme Court Appears Ready to Uphold TikTok Ban Despite Trump on the App's side

TMTPOST -- TikTok's future hangs in the balance as the U.S. Supreme Court voiced doubts about its arguments against a sell-or-ban law, leaving the short video application’s fate in President-elect Donald Trump.

Credit：The Paper

The Supreme Court indicated it could uphold the Protecting Americans From Foreign Adversary Controlled Applications Act (the “Act”) that forces TikTok’s Chinese parent ByteDance Ltd., to divest it by January 19, Bloomberg concluded the over two-hour oral arguments in Washington on Friday. Hearing the long arguments, a majority of justices suggested they see U.S. national security concerns as overriding the free speech interests of the companies and content creators, reported Bloomberg, adding that several justices cast the law as being focused not on freedom of speech, but on ByteDance.

CNN made the same conclusion that most of the Supreme court appeared likely to uphold the Act, citing many of the justices in the arguments view the law not as one that primarily implicates the First Amendment but rather as an effort to regulate the potential foreign control of an app used by 170 million Americans.

For CNN, a sign that TikTok probably fail to block the potential ban is Justices across the ideological spectrum raised doubts that the TikTok ban even implicated the First Amendment. Because TikTok, if it wants to win the case, had to prove first that the First Amendment applies in the case and then that the law has failed to meet its tests.

According to Chief Justice John Roberts, in passing the Act, Congress was “fine with the expression.” “They’re not fine with a foreign adversary, as they’ve determined it is, gathering all this information about the 170 million people who use TikTok,” the justice said.

“Just on the data collection, that seems like a huge concern for the future of the country,” another justice Brett Kavanaugh told TikTok’s lawyer, Noel Francisco.

The U.S. Congress has passed a bill and U.S. President Joe Biden signed into law that could ban TikTok in the country in April. The Act gives TikTok owner ByteDance 270 days to divest its U.S. assets including TikTok, otherwise the Chinese tech giant would face a ban on its app being available in U.S. app stores or on U.S. web hosting services. It also grants the White House the authority to prolong this deadline by another 90 days if the president deems that progress has been made towards a sale.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on December 6 ruled against TikTok’s request for pause of the ban that set a deadline of January 19 for a sale of ByteDance. TikTok the same day requested the Supreme Court to review the recent ruling of an appeals court that upheld an act threatening a U.S. ban.

The Biden administration is defending the Act as a national security imperative, claiming that Chinese control of TikTok will let a foreign adversary spread propaganda, covertly manipulate the platform and collect Americans’ data for espionage or blackmail purposes.

It’s unclear when the Supreme Court will issue its ruling, but the case’s expedited hearing has some predicting that the court could issue a quick ruling. The case will have “enormous implications” because TikTok’s user base in the U.S. is so large, said Erwin Chemerinsky, dean of Berkeley Law.

TikTok boasts around 170 million active monthly users in the United States. It has warned in a filling last month that a ban on its platform in the United States could result in a $1.3 billion loss in revenue and earnings for small businesses and social media creators within just one month. If the Surpreme Court upholds the Act, it is Trump that could act as TikTok’s last-resort for survival.

Trump was reported in November to seek blocking the U.S. ban. If TikTok owner ByteDance doesn’t meet the deadline required by the Act, Trump could work on options to delay or even cancel the ban. One option Trump can adopt would be to leverage his administration’s authority to extend the deadline by 90 days if there is “significant progress” towards a sale, The Washington Post reported. It added that legal experts have suggested Trump could also encourage Congress to repeal the legislation altogether or influence his attorney general not to enforce it.

Trump last month sent one of his most clearest and the strongest signals to date that he opposes any TikTok ban in U.S. "We did go on TikTok and we had a great response with billions of views," Trump told a crowd of supporters on December 22. Trump added, "They brought me a chart ... and as I looked at it, I said, maybe we got to keep this sucker around for a little while."

Trump also asked the U.S. Supreme Court to delay the possible TikTok ban. In a 25-page amicus brief released on December 27, John Sauer, Trump’s lawyer who is also the president-elect’s pick for U.S. solicitor general, has request the Supreme Court to delay a January 19 deadline if TikTok’ Chinese parent company ByteDance Ltd. does not divest the short video app.

“President Trump takes no position on the underlying merits of this dispute,” wrote Sauer.“Instead, he respectfully requests that the Court consider staying the Act’s deadline for divestment of January 19, 2025, while it considers the merits of this case, thus permitting President Trump’s incoming Administration the opportunity to pursue a political resolution of the questions at issue in the case.”