The Supreme Court declined to block a federal law that would effectively ban TikTok in the United States if the video-sharing app does not divest from Chinese ownership.
The justices’ order, which came Friday, was a blow to TikTok, which prohibits its operation in the lead-up to President-elect Donald Trump’s inauguration on Monday. Trump has promised to “save” the app.
The ban-or-sale law was passed in April with bipartisan support and signed by President Joe Biden in response to national security concerns about the Chinese government’s potential influence over the platform. The law requires TikTok’s China-based parent company, ByteDance, to sell the platform.
TikTok and its creators said the government’s national security concerns don't justify a sweeping restriction on the speech of 170 million Americans who use the app. At oral arguments last week, a majority of justices appeared inclined to uphold the law. They credited Congress’s concern about the Chinese government potentially using the app to collect data about millions of American users and exploiting that information to blackmail young Americans or turn them into spies.
Several justices emphasized that foreign entities do not have First Amendment rights. They also noted that the site could continue to operate in a similar manner under different, non-Chinese ownership.
Trump asked the Supreme Court to delay implementation of the law to give him an opportunity to act once he returns to the White House. With the court declining that option and no sale of the app seemingly imminent, the ban is now poised to take effect on the eve of Trump’s inauguration.
TikTok CEO Shou Zi Chew was invited by Trump to attend his swearing-in ceremony as an honored guest. Chew is also slated to attend at least two other celebrations for Trump ahead of his inauguration Monday. While Trump has pledged to rescue the app, how he plans to do so remains unclear. The Washington Post reported that the president-elect is exploring ways to aid the platform, including issuing an executive order once he takes office that would suspend enforcement of the law for 60 to 90 days.
Under the TikTok law, known as the Protecting Americans From Foreign Adversary Controlled Applications Act, app-store giants such as Google and Apple and internet-hosting services could face massive fines if they continue to carry TikTok on their products beyond the Sunday deadline for divestment. Infractions could cost companies $5,000 for each user that continues to access TikTok, which could add up to billions of dollars in penalties.
While the law is aimed at forcing app stores and internet hosting services to stop carrying TikTok, executives inside the company have discussed pulling the app offline for U.S. users on Sunday to highlight how disruptive a ban would be. TikTok lawyer Noel Francisco said during oral argument that his understanding was the platform would “go dark” on Sunday if the court did not delay the law and the White House did not delay implementation.
TikTok has not publicly commented on its plans. TikTok employees in the United States were sent an email Tuesday saying the company was “planning for various scenarios” and that its offices would remain open “even if this situation hasn’t been resolved before the January 19 deadline.”
ByteDance could still stave off a TikTok ban by selling the app, but the company has insisted it does not plan to do so. The Chinese government has said it opposes divestiture. Chinese officials are reportedly considering allowing Elon Musk to buy TikTok’s U.S. operations. TikTok denies those reports. Business magnate Frank McCourt and “Shark Tank” star Kevin O’Leary mounted a separate $20 billion bid.
In making their decision, the justices were reviewing a unanimous ruling in December by the U.S. Court of Appeals for the D.C. Circuit that said the TikTok ban was permissible. A three-judge panel sided with the Biden administration and said the law does not violate the First Amendment.