The U.S. Supreme Court has decided to hear TikTok's challenge to a law that would ban the popular social media app next month unless its Chinese owner sells it.
The case is scheduled for January 10, nine days before TikTok is scheduled to shut down in the US
In announcing its decision, the court instructed lawyers for TikTok and the government to prepare arguments on whether the upcoming ban, which lawmakers say is necessary to prevent possible interference by Chinese authorities, would violate the 1st Amendment .
With time running out before the ban goes into effect on January 19, the justices agreed to decide the TikTok case on a fast-track basis and schedule a two-hour hearing.
“We are pleased with the Supreme Court’s order today,” TikTok spokesman Michael Hughes said in a statement. “We believe the court will find the TikTok ban unconstitutional so that the over 170 million Americans on our platform can continue to exercise their right to free speech.”
The TikTok litigation represents a conflict between America's tradition of open free expression and the potential threat to national security from a Chinese company collecting its users' personal data.
The future of TikTok in the US has been uncertain since 2020, when then-President Trump shut down the short-video app that people used to share dance performances, news, recipes and funny videos.
Trump and others raised the prospect that ByteDance, which owns TikTok, could aid the Chinese government by sharing data it collects from its American users; Embedding malicious software into the app; or contribute to the spread of disinformation.
This sparked years of back and forth between TikTok and the US government. In April, President Biden signed a law requiring ByteDance to sell or close its US operations to a non-Chinese company.
The companies responded by suing the U.S. government in May, saying a ban would violate First Amendment rights. They also said the new law “does not provide support for the idea” that Chinese ownership of TikTok poses a risk to national security.
“The speculative risk of harm is simply not sufficient when First Amendment values are at stake,” TikTok and ByteDance said in their filing.
The U.S. Court of Appeals for the District of Columbia Circuit upheld the law two weeks ago, paving the way for a showdown at the Supreme Court.
In a 3-0 decision, the D.C. Circuit Court rejected TikTok's free speech claim, saying the government was not against the content on the social media platform, but rather against its owners.
Justice Douglas Ginsburg cited testimony from government security experts who concluded that they “did not trust” TikTok’s owners to protect Americans’ privacy. This isn't a problem with social media in general, he said.
“TikTok is the only global platform of its kind that has been designated by policymakers as an application controlled by foreign adversaries,” Ginsburg wrote in the Dec. 6 decision.
Like the appeals court, Supreme Court justices may be wary of overturning the ruling of Congress and two presidents on a national security issue.
In the spring, some big names expressed interest in buying TikTok's U.S. stake, including Treasury Secretary Steven Mnuchin, who said he was in the process of putting together a group of investors. However, since the law was passed, there has been little public indication of a possible sale.
On Wednesday, another interested buyer, former Dodgers owner Frank McCourt, said he expects the Supreme Court to uphold the law and reiterated his plans to join other investors in making an offer.
The group's proposal, McCourt said in a statement, would “migrate this vibrant community to a US-made technology stack that gives people control over their data and takes a transparent approach to content recommendation and moderation.”
Free speech organizations have warned that enforcing the ban would set a bad precedent.
“As Americans who interact with each other on social media, we should be concerned about this law, but we should also be concerned about the global system of free speech,” said George Wang, staff attorney at the Knight First Amendment Institute.
When the law is followed, it is “hard to see where the stopping point is,” he said.
“Future bans on social media platforms are possible, but perhaps also on other forms of media,” Wang said. “It is truly a boon to the government’s ability and authority to shut down entire platforms for speech on fairly vague national security grounds.”
TikTok said on Monday that its estimates showed that small businesses on the platform would “lose more than $1 billion in revenue and creators would suffer nearly $300 million in lost profits in just one month” if the ban was not passed would be repealed.
TikTok's Supreme Court lawyer Noel Francisco is a familiar figure to the justices, having served as U.S. attorney general during Trump's first term.
Chang reported from Los Angeles and Savage from Washington.