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Today, the Supreme Court agreed to hear TikTok’s case against the law, passed in April, that will require its Chinese parent company to sell it or see it banned in the United States.
In an unconventional order that shocked Washington insiders, the court scheduled oral argument on the case for just weeks away — on January 10 — and ordered the parties to brief their arguments on an accelerated schedule over the Christmas and New Year’s holidays. The timing suggests that the court may plan to rule on the law’s constitutionality, or at least on whether it should be stayed, before a ban would go into effect on January 19.
The High Court’s order suggests that it was unpersuaded by one of TikTok’s chief arguments — that the Court should wait and see what incoming President Trump thinks of the law before letting it go into effect. By setting oral argument for January 10, and requiring the parties to brief the case before then, the Court has also ensured that the law is defended by Biden’s DOJ, which helped write the law, rather than Trump’s DOJ, which the President-elect may order to oppose it.
The Supreme Court’s decision on the TikTok case will likely have a lasting impact on both First Amendment jurisprudence and the future regulation of other foreign companies, both in tech and beyond it. Earlier this month, the powerful D.C. Circuit Court of Appeals ruled against TikTok in a novel interpretation of First Amendment law, finding that the law was actually protective of Americans’ free speech, even as it restricted them, because it aimed to protect the information ecosystem from foreign intervention. If the Court upholds the TikTok law, ByteDance will have to sell TikTok to a non-Chinese company or leave the U.S. market entirely. Other ByteDance apps, including the photo-editing app CapCut, the social platform Lemon8, and the homework help app Gauth would also need to be sold or discontinued in the U.S.
If the law is upheld, President Trump may still have an opportunity to “save” the app by bringing it back online after a ban goes into effect — but this move would only be temporary. The law grants the president the right to give ByteDance a one-time, three-month extension to carry out a sale of TikTok. Though ByteDance has said it will not and cannot sell, Trump might nonetheless give ByteDance an extension on his first day in office, which might be just hours after the app is banned in the U.S. President Biden could also grant this extension before he leaves office, which would deny Trump the opportunity to grant a second one during his tenure.
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