- On Friday, the Supreme Court heard oral arguments on the TikTok divest-or-ban law.
- TikTok asked the court to pause its divestment deadline, set for January 19.
- Legal experts expect the Supreme Court to uphold the law despite pressing the government on its case.
TikTok is fighting for its life as it faces a US ban set to arrive in a little over a week. On Friday, it argued its case before the Supreme Court.
The justices peppered attorneys on both sides with questions about a divest-or-ban law that compels TikTok’s Chinese owner, ByteDance, to divest from the US version of TikTok by January 19 or be forced to shut the app down.
Legal experts told Business Insider that TikTok’s prospects remain dim.
Matthew Schettenhelm, a litigation and policy analyst at Bloomberg Intelligence, said he thinks TikTok’s chances of a Supreme Court rescue look slimmer after Friday’s hearing.
“I expect the court to deny the stay, probably soon, and also uphold the law,” he told BI.
Many of the back-and-forths in the hearing centered on whether a TikTok divestment was the only path to solving Congress’s national security concerns and if the law violates the free-speech rights of TikTok and its users. TikTok’s attorney asked why its company had been singled out in the law and why e-commerce platforms like Shein and Temu were granted exemptions.
TikTok is appealing to the Supreme Court for a pause on its divestment deadline after it lost its case in the DC Circuit in December. But more time may not ultimately make much of a difference for the company.
During oral arguments on Friday, TikTok’s lawyer Noel Francisco said it would be “extraordinarily difficult” to divest its US platform from the rest of TikTok globally over any timeline.
The attorney said divestment would be challenging because of the complexities of TikTok’s algorithm and its reliance on interoperability with teams and creators in other countries.
TikTok appears to be hoping for some type of political resolution that does not involve divestment, possibly brokered by President-elect Donald Trump.
Alan Rozenshtein, a former Justice Department official and current University of Minnesota law professor, said the government “got hard questions in a way that it did not at the DC Circuit,” but that doesn’t mean TikTok will get a better outcome.
“I don’t think that’s going to be enough,” Rozenshtein told BI. “I still think the most likely outcome is the law will be upheld.”
He gave an 80% chance that the Supreme Court would uphold the law.
TikTok would ‘go dark’ if the court doesn’t intervene
After January 19, the company said it would “go dark” without court intervention as it would be pulled from app stores. Its service providers would also stop working with the company.
“It’s essentially going to stop operating. I think that’s the consequence of this law, which is why I think a short reprieve here would make all the sense in the world,” Francisco, the TikTok lawyer, said.
Still, like the DC Circuit, the Supreme Court is likely to show deference to Congress on questions of national security, even in instances where First Amendment rights are at stake.
“It’s going to be an uphill battle,” G.S. Hans, a clinical professor of law at Cornell Law School, told Business Insider ahead of the hearing. “TikTok lost 3-0 in the DC Circuit. They lost with a cross-ideological panel.”
He added: “If you’re the company, you’re hoping for a change of fortune. That’s a tall order because of the general deference on natural security grounds to the political branches from the courts.”
Why is TikTok facing a ban?
TikTok was included in the Protecting Americans from Foreign Adversary Controlled Applications Act, passed in April. The act sought to limit the influence of social apps with ties to countries the US deemed foreign adversaries to guard national security interests. ByteDance is headquartered in China, which the US government has called a foreign adversary.
While members of both parties in Congress have raised alarm bells about TikTok, support for a ban among the American public has declined over the past couple of years. Support for a government ban fell from 50% in March 2023 to 32% in July and August among US adults who responded to Pew Research Center surveys.
Donald Trump may try to save TikTok as president, as he pledged to do during his campaign run. Trump filed an amicus brief on December 27 asking the Supreme Court to pause the deadline for a TikTok divestment so he could try to negotiate a political resolution once in office.
