Will TikTok be Banned in the U.S. on Jan 19th? What You Need to Know About the Supreme Court's Decision

Protesters advocate for TikTok outside the Supreme Court building, holding signs and livestreaming their demonstration.

WASHINGTON (NB360) — The Supreme Court on Friday appeared inclined to uphold a law that would prohibit TikTok in the United States starting Jan. 19 unless the popular social media platform is sold by its China-based parent company.

During a significant debate over free speech and national security issues, the justices seemed convinced by arguments that the national security risk posed by the company’s ties to China outweighs concerns about limiting the speech of either TikTok or its 170 million users in the United States.

Early in the arguments, which lasted over two and a half hours, Chief Justice John Roberts highlighted his primary concern: TikTok’s ownership by China-based ByteDance and the parent company’s obligation to collaborate with the Chinese government’s intelligence activities.

If maintained, the law, passed by bipartisan majorities in Congress and signed by President Joe Biden in April, will require TikTok to “go dark” on Jan. 19, lawyer Noel Francisco informed the justices on behalf of TikTok.

Francisco urged that, at the very least, the justices should implement a temporary pause to allow TikTok to continue operating. “We might be in a different world again” once President-elect Donald Trump assumes office on Jan. 20. Trump, who has 14.7 million TikTok followers, has also suggested extending the deadline to provide time for negotiating a “political resolution.” Francisco was Trump's solicitor general during his first term as president.

However, it was uncertain if any justices would opt for this approach. Only Justice Neil Gorsuch seemed inclined to support TikTok, suggesting that the ban might violate the Constitution.

Gorsuch described the arguments made by the Biden administration in defense of the law as a “paternalistic point of view.” He noted that TikTok has proposed adding a warning that the content could be influenced by the Chinese government.

“Don’t we normally assume that the best remedy for problematic speech is counter speech?” he asked Solicitor General Elizabeth Prelogar, who defended the law for the Biden administration

A warning wouldn’t be enough to counterbalance the spread of misinformation, Prelogar said.

Francisco and lawyer Jeffrey Fisher, representing content creators and TikTok users, repeatedly tried to focus the court on the First Amendment restrictions that would fall on TikTok and its users, imperiling the livelihood of content creators, if the law is allowed to take effect.

But compared to the mildly challenging questions directed to Prelogar, they faced skepticism from every justice other than Gorsuch.

Justice Brett Kavanaugh raised U.S. concerns about China accessing information on tens of millions of Americans, including especially teenagers and people in their 20s, with whom TikTok is extremely popular.

“That seems like a huge concern for the future of the country,” said Kavanaugh, whose daughters are in that age range.

Roberts downplayed Fisher’s argument that banning TikTok violates American users’ free speech rights. “Congress is fine with the expression,” Roberts said. “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 justices are expected to act within days, almost certainly ahead of the Jan. 19 deadline.

Content creators and small business owners who rely on the app are awaiting a decision with anxiety.

“There’s really no replacement for this app,” said Skip Chapman, co-owner of KAFX Body in Manasquan, N.J., a maker and seller of natural deodorants. Chapman said more than 80% of his sales come on TikTok and he has not found the same traction on Amazon or other platforms.

Lee Zavorskas, a TikTok creator and a licensed esthetician based in New Hampshire, said she makes nearly half of her income on the platform by promoting products for other businesses. Zavorskas said she found it too stressful to listen to Friday’s arguments. Instead, she spent her time building a YouTube channel.

ByteDance has said it won’t sell the short-form video platform, and Francisco said a sale might never be possible under the conditions set in the law.

Prelogar said an eventual sale of the platform, even after the ban kicks in, would allow TikTok to resume operations. The sale of Twitter to Elon Musk, who renamed it X, shows that the sale of a social media platform can happen quickly, she said.

That high-profile transaction went through in about six months from offer to completion, she said.

TikTok, meanwhile, has been “on notice” since 2020, during Trump’s first term, that its sale could be required if it couldn’t satisfy the U.S. government’s national security concerns

The federal law was the culmination of a yearslong saga in Washington over TikTok, which the government sees as a national security threat due to its connections to China.

U.S. officials argue that the vast amounts of user data that TikTok collects, including sensitive information on viewing habits, could fall into the hands of the Chinese government through coercion. They also are concerned that the proprietary algorithm that fuels what users see on the app is vulnerable to manipulation by Chinese authorities, who could pressure ByteDance to shape content on the platform in a way that’s difficult to detect.

TikTok, which sued the government last year over the law, has long denied it could be used as a tool of Beijing.

Between 2021 and 2022, the company engaged in negotiations with the Biden administration to address issues related to U.S. data privacy and possible algorithmic manipulation. According to court filings, the company has claimed that the administration essentially abandoned these negotiations after a draft agreement was submitted in August 2022. However, the Justice Department stated that the Biden administration deemed the proposal “insufficient” as it would continue TikTok’s connections to China. The agency mentioned that the Executive Branch could “neither trust ByteDance to comply nor detect noncompliance before it was too late.”

In December, a three-judge panel consisting of two Republican appointees and one Democratic appointee unanimously upheld the law, leading TikTok to promptly appeal to the Supreme Court.