TikTok’s future hangs in balance at Friday’s Supreme Court arguments 

TikTok’s future will hang in the balance Friday when the Supreme Court hears oral arguments over a federal law that could ban the video-sharing platform nationwide in less than 10 days. 

In its waning days, the Biden-era Justice Department will square off in the courtroom against lawyers for TikTok and several creators in a seismic battle that pits national security against free speech. 

“The whole point of the First Amendment is that the government can't shut down speech that it thinks is against its interests,” said Liberty Justice Center President Jacob Huebert, a member of the creators’ legal team. 

Under the new law passed by bipartisan majorities in Congress, TikTok can no longer be offered on app stores beginning Jan. 19, unless TikTok divests from its Chinese-based parent company, ByteDance, or President Biden agrees to a delay. 

With neither of those solutions likely, the Supreme Court’s agreement to take up TikTok’s challenge has emerged as the platform’s best remaining hope for a last-minute shakeup. TikTok has more than 170 million users nationwide. 

The case has been complicated by the backdrop of a changing administration in Washington.  

The Biden administration has been defending the law, which would ban TikTok the day before the inauguration. Friday’s argument is expected to be the final for Solicitor General Elizabeth Prelogar, who will lead the administration's defense of the law at the high court.  

President-elect Trump, who has sympathized with the platform in its fight against a ban, is hoping the Supreme Court will issue a delay since he is set to take control of the White House and the Justice Department in less than two weeks. 

Once in office, Trump claims he could negotiate a deal that negates the need for the justices to declare the law unconstitutional. 

“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged,” D. John Sauer, Trump’s personal attorney whom he has nominated to succeed Prelogar as solicitor general, wrote in a friend-of-the-court brief. 

Huebert said Trump’s brief made important points about censorship and how both he and Vice President Harris used TikTok during the 2024 presidential campaign. But the attorney insisted the Supreme Court should still rule the law is at odds with the First Amendment. 

“It's blatantly unconstitutional for the reason we give,” said Huebert. “I don't know why President Trump wouldn't just agree with us on that point and would ask for a stay, except, of course, that he and his lawyer may think that that would be an easier path for the court to take, and when addressing this on such short notice.” 

The justices are hearing the case at breakneck speed, even faster than when the justices took up Trump’s claims of presidential immunity last year on an expedited schedule. 

In Trump’s case, arguments took place 57 days after the case was taken up; arguments in TikTok’s challenge are being heard just 23 days later.  

It gives the Supreme Court an opportunity to issue a ruling before the ban is implemented on Jan. 19. If no ruling lands by then, the law will take effect. 

TikTok argues that the ban law should be held to the strictest tier of constitutional scrutiny, which would require the government to show the measure is narrowly tailored to serve a compelling governmental interest. The law easily fails that test, TikTok argues. 

The Biden administration insists the First Amendment doesn’t apply because of TikTok’s foreign-based ownership.

However, the administration also argues the law is consistent with the First Amendment and simply addresses its national security concerns that the Chinese government could access U.S. TikTok users’ data or covertly manipulate the content algorithm.

“That divestiture requirement is entirely consistent with the First Amendment and with our Nation’s tradition of barring or restricting foreign control of communications channels and other critical infrastructure,” the Justice Department wrote in court filings.

Retired Rear Adm. Mark Montgomery, senior director of the Center on Cyber and Technology Innovation at the Foundation for Defense of Democracies (FDD), argued that TikTok allows a foreign entity to drive the national security narrative in the U.S. 

FDD, a right-leaning national security and foreign policy think tank, filed an amicus brief in support of the government at the Supreme Court. 

“This isn’t about the First Amendment, this is about the manipulation of the system,” Montgomery said at a briefing Wednesday. “And if we’re confused about this, the Chinese have spent the last year reminding the United States the degree to which they will use cyber-enabled information operations to go after us.” 

He pointed to the numerous cyber intrusions that have been attributed to Chinese state-sponsored hackers, including the recent Treasury Department hack. 

Sarah Kreps, director of Cornell University’s Tech Policy Institute, said she believes the national security arguments backing up the divest-or-ban law are “stronger than most people think.” 

"Both parties, both houses of Congress, the 46th president,” she noted. “They've all weighed in on this and concluded the same thing, which is that these national security arguments are strong.” 

But Huebert, the creators’ attorney, said the justification isn’t enough. 

“There is no evidence of an imminent threat of the sort that you would need to censor speech at all, let alone censor American speech on such a massive, unprecedented scale,” he said. 

The U.S. Court of Appeals for the D.C. Circuit sided with the Biden administration in early December.  

While the court determined that some heightened level of scrutiny applied to the law, it ruled the government cleared that bar and its national security concerns justified the “significant” impacts of potentially banning the app. 

As TikTok's fate remains uncertain, Kreps emphasized that platforms are sometimes “fungible,” and users may be able to migrate to a different site.  

Lemon8, another social media platform owned by ByteDance, has been advertising on TikTok and encouraging users to transition to the app ahead of a potential ban, although it may also be subject to the law, according to Axios.  

“I don't think it'll be the end of the world,” Kreps said. “But I think it will have an effect not just on the current social media space, but I think will make a mark on how we think about national security and freedom of expression in this digital era.”