5 Questions For Washington From Tiktok’s Supreme Court Hearing

TikTok will be arguing for its survival before the Supreme Court Friday morning. The U.S. operation of the popular app has until Jan. 19 to split off from its Chinese-based parent company under a law passed by Congress last year — or it will essentially be banned.

The company has appealed all the way to the highest court with a claim that the law violates the First Amendment right to free speech. It has a powerful ally on its side: incoming president Donald Trump, who has asked the justices to ignore Congress and his predecessor President Joe Biden and give him the opportunity to take charge of managing TikTok’s fate.

Meanwhile, an entire generation of users and political operatives is watching closely to see what happens to their main vehicle for digital connection.

Though the court isn’t expected to issue a ruling immediately, the justices’ lines of questioning for TikTok and the Justice Department could send strong signals of how they’ll decide. The court could separately suspend the law’s deadline in the coming days, pushing the final word on TikTok into Trump’s term while justices consider the case’s core issues.

Here are five big things for Washington to watch for as the hearing unfolds. Tune into the hearing here.

1. Does the law get placed on hold?

The law is set to take effect in nine days, and ByteDance has indicated it has no intention to let TikTok be sold. But the Supreme Court could step in, and both TikTok and the president-elect have asked it to delay the law.

Legal experts say Trump’s unusual request to “stay” or pause the law is overreach. The DOJ encouraged the Supreme Court to ignore it. But even critics expect the court to seriously consider any request from an incoming president.

“The justices are human beings at the end of the day, and they understand that they exist in politics and that they have to take that into account,” said Alan Rozenshtein, a former DOJ official who teaches at the University of Minnesota Law School, told the POLITICO Tech podcast. “At the same time, I just don’t think there are enough votes to give Trump what he wants.”

TikTok has also formally requested an injunction to halt the ban. The court has said it will decide on that after Friday’s arguments. And with the justices putting the case on an unusually expedited schedule, they could make a call on an injunction swiftly — possibly as soon as the same afternoon or early next week.

“The TikTok application is legitimate and procedurally sound. Whether it should succeed on the merits is another question,” Albany Law School professor Ray Brescia told POLITICO. “What would surprise me is if there is a serious discussion about the request received by the president-elect because it’s so out of the ordinary.”

2. What would a pause mean for TikTok’s odds?

One criteria for pausing the law is that TikTok must show it has a substantial shot at winning the case in the end.

“It actually tips the court’s hand about which way the eventual merits decision is going to go,” said Cardozo Law professor Saurabh Vishnubhakat.

Pushing back the law’s deadline by just a day opens new avenues for Trump and his campaign pledge to “save TikTok.” Once in the presidency, Trump can put off enforcing the law and buy himself time to convince Congress to reverse it, negotiate a deal to sell off the app or figure out some other resolution.

That’s the hope of billionaires Frank McCourt and Kevin O’Leary, who formally made their offer to purchase TikTok on Thursday. O’Leary, who has visited Trump at Mar-a-Lago, said he’ll need the incoming president’s help to get the bid across the finish line.

3. How will Republicans react?

GOP China hawks revived a push against TikTok last year, and rapidly gathered Democratic support to pass the bill with an overwhelming majority. When Trump — who himself tried to ban TikTok in 2020 — started to defend the app ahead of the election, it threw everyone for a loop.

With a few exceptions — like Trump’s pick for secretary of State, Sen. Marco Rubio (R-Fla.) — most Republican backers of the law maintain that divesting is the only way they’ll allow TikTok to remain in the U.S.

But where does this leave the party after Jan. 19?

If the law is paused, then Republicans and Trump have months to hash out a face-saving deal. Otherwise, the ban takes effect before Trump is in office, and he could put GOP hawks in a tough spot by trying to work around it.

When the U.S. Court of Appeals for the D.C. Circuit upheld the law in December, many Republican lawmakers immediately fired off statements of approval without waiting to see if Trump would weigh in. Their responses will be important to watch again this time. Trump has posted numerous times ahead of the Supreme Court hearing, even questioning, “Why would I want to get rid of TikTok?” while boasting of his account’s reach on the app.

House China Chair John Moolenaar (R-Mich.) has said selling off TikTok would be the “deal of the century” for Trump. He’s already sent letters pressing Google and Apple to prepare to remove the app from their stores.

Ahead of the arguments, young MAGA Republicans defended TikTok as a true “conservative platform” that Trump used to sway voters. By contrast, they noted that Republicans sidelined by MAGA, like Sen. Mitch McConnell (R-Ky.) and former Vice President Mike Pence, support banning TikTok — evidence, they say, of why Trump will intervene.

4. What level of review is the Supreme Court applying to the law?

For legal experts watching closely for signs of how the Court will actually rule, this question is key.

The court is, technically, revisiting the D.C. Circuit’s rejection of TikTok’s claim that the law violates the First Amendment. One of the biggest indicators of the direction the justices will take is what level of scrutiny they apply to a law that affects fundamental rights.

“That’s the thing that I’ll be looking for and listening for on Friday’s argument right out of the gates because without answering that question, the Supreme Court can’t really do much else with the case,” said Vishnubhakat.

Under the highest level of judicial review, strict scrutiny, laws are far less likely to survive. The court would require the government to prove its solution has been narrowly tailored. If the DOJ can do that, the justices could uphold the law, even if they agree it infringes on free speech. However, TikTok argues that the least restrictive way to address concerns would be disclosure warnings, not a full ban — setting up a potential clash between Congress and the judiciary.

A more lenient standard boosts the chances of the law being preserved. “If the speech interests at stake are less significant in the view of the Supreme Court based on what they hear in arguments, then intermediate scrutiny might apply, and the government actually has it easier at that point,” Vishnubhakat predicted.

5. What have we heard from TikTok’s users?

A group of the app’s creators is opposing the law alongside TikTok at the Supreme Court.

For months, many of the app’s 170 million users in the U.S. have used TikTok to accuse the government of stifling their speech and harming their livelihoods. But creators and marketers are making contingency plans.

Video platform Lemon8 (also owned by ByteDance) is gaining traction. Marketing agencies are moving some of their ad campaigns to Instagram and amending their contracts with influencers.

Steven Overly contributed to this report.