The clock is ticking for TikTok, as 19 January — the date on which the platform will be banned in the US — fast approaches.
That is, unless the Chinese-owned social media platform is able to convince the US Supreme Court to shelve or at least postpone the ban. The Supreme Court will hear arguments from TikTok representatives today (10 January).
President Joe Biden signed a bill in April 2024 that would shut down TikTok in the US unless owner Bytedance found a US-approved buyer within a nine-month time frame. The bill cited national security concerns, namely that the company could be forced to hand over US data to the Chinese government. The US Justice Department has argued that TikTok poses “a national security threat of immense depth and scale” by virtue of its Chinese ownership.
TikTok protested the law that will necessitate the ban, contending that it was unconstitutional because it represented a “staggering” impact on the free speech of its 170 million US users. On 6 December, the company’s attempt to overturn its looming ban was rejected. The court denied that the law contravenes the First Amendment, saying that the legislation “was the culmination of extensive, bipartisan action by the Congress and by successive presidents”.
President-elect Donald Trump, who proposed the ban during his first term as president in 2020, has changed his tune this time around (for reasons he hasn’t made clear) and now insists the app should not be banned. He’s pushing for a pause. Trump has requested that the Supreme Court delay the ban to give him time to work on what he calls a “political resolution”. On 27 December, Trump’s lawyer Dean John Sauer filed a legal brief noting that Trump opposes the ban and plans to find a solution once he takes office on 20 January.
Sauer wrote: “[Trump] respectfully requests that the court consider staying the act’s deadline for divestment of 19 January, 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.”
On 3 January, the Department of Justice urged the Supreme Court to reject Trump’s request, arguing that the filing took “no position” on the First Amendment question.
There’s precedent on both sides, says Jeff Trexler, associate director of Fordham University’s Fashion Law Institute. “TikTok and Bytedance rely on extensive precedent in support of protecting free expression; the government cites precedent the constitutionality of laws designed to protect national security,” he says.
“The federal government has long possessed the power to regulate transactions and businesses, including foreign-owned businesses, that it perceives as a threat to national security or vital US foreign policy or economic interests,” says Kelly Bonner, attorney at Duane Morris. What’s new, though, is the fact this is a social media app used by 170 million-plus Americans, she adds.
It bodes badly for brands and creators, many of whom have grown their businesses on-platform. They should “absolutely” be more worried than before, social media consultant Matt Navarra told Vogue Business when TikTok’s attempt to overturn its looming ban was rejected. Already, brands have been prepping by establishing their presence on alternatives like Instagram Reels and YouTube Shorts. Even so, these lack the social commerce capabilities of TikTok Shop, and their algorithms don’t match up to TikTok’s in sophistication. It’s TikTok that has driven the flurry of micro-trends in recent years, fuelled brand growth and kick-started an obsession with the impact of the algorithm on our personal style and buying habits.
With nine days between the hearing and the impending ban, the jury is out as to whether or not TikTok will receive a lifeline. What would each outcome look like?
The Supreme Court sides with the government
If TikTok is unsuccessful — meaning the Supreme Court either sides with the US government, or doesn’t act in time — the ban will come into effect on 19 January. This means the app will be removed from app stores and internet service providers will not be able to offer access in the US. The app will still be available to use for those who have already downloaded it to their devices, and will continue to function until it stops working due to a lack of updates (which are implemented regularly for bug fixes and security improvements).
If this happens, the only way that TikTok won’t be banned on 19 January is if President Biden suspends enforcement. (The law gives him up to 90 days to do so.) This is very unlikely, Trexler says: “There’s a greater chance of Biden doing a TikTok of the [viral] APT dance than giving TikTok a reprieve.” Aside from this, the only saviour would be for TikTok to sell to a non-Chinese company, which Bytedance has said it has no intention of doing — especially before the impending deadline.
If the ban is enacted, there’s a chance Trump could reverse it — or ignore it. “Once the President-elect assumes office, there are a few things that he can do to mitigate or attempt to undo the ban,” says Bonner. “He could ask Congress to repeal the ban. He could direct the Justice Department not to enforce the ban.” He could also claim that the requisite steps towards divestiture have been taken, Trexler adds.
Based on existing precedent, it’s unlikely that the Supreme Court will strike down the ban, Bonner says. Trexler agrees, adding: “We’ll have a better sense after Friday’s oral argument where the Supreme Court is likely to land, but the fact that both conservative and liberal appellate court judges joined together to uphold the law suggests the government might be more likely to win.”
The Supreme Court sides with TikTok
If the Supreme Court agrees to pause (or scrap) the ban, TikTok’s future in the US bodes much better.
There are two possible outcomes. One is that the court strikes down the law. In this case, Trexler says, “the ban is dead”. The other possible (and more likely outcome of the two) is that the court could agree with TikTok that the lower courts’ reasoning was flawed, but send the case back down for further proceedings.
The timing of the court’s ruling is also an issue, Trexler says. “Because the court did not enjoin enforcement of the law while it is considering the case, if the court does not issue a ruling by 19 [January] we could be in a situation where TikTok would face a ban even with the possibility that the court could subsequently overturn the law,” he explains.
Given Trump will be inaugurated on 20 January, in this case, he’s likely to try and save it. He said in a December press conference that he has a “warm spot” in his heart for the platform, and (as above) has pressed the Supreme Court to delay the ban so that he can control the outcome once in office. If the ban is in effect, he may work with the Chinese government and Bytedance, TikTok’s parent, to facilitate a sale of TikTok, Bonner says.
“Is it likely?” Bonner asks. “I don’t think we can ever really predict what Trump will do, but yes, I could see him working to effectuate a political solution by facilitating the sale of TikTok,” she says.
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