WASHINGTON − The Supreme Court might be giving TikTok a chance to prevail, as it has agreed to swiftly address the company’s objection to a law that could lead to its sale or ban in the U.S. next month.

Nevertheless, TikTok and its parent company, ByteDance from China, face the challenge of persuading the Supreme Court to reverse an appeals court ruling. This ruling indicated that concerns over national security take precedence over potential violations of free speech.

“This government intervention in speech is what the First Amendment aims to prevent,” stated Gus Hurwitz, a senior fellow at the University of Pennsylvania Carey Law School. “However, given the circumstances of this case, it’s likely the court will still permit such regulation.”

Critics argue that the lower court overly prioritized the federal government’s national security worries and didn’t sufficiently acknowledge the importance of free speech when it upheld the law.

“We typically expect courts to defend citizens against government overreach concerning constitutional rights, and it’s unclear if the D.C. Circuit did that in this instance,” remarked George Wang, an attorney at the Knight First Amendment Institute.

TikTok users are also looking to President-elect Donald Trump to honor his campaign vow to “save TikTok.”

However, how this will happen is still uncertain.

Here’s what you should know.

What’s next?

The Supreme Court will conduct oral arguments regarding the case on January 10. This timeline is expedited due to TikTok’s deadline for divestiture on January 19.

TikTok requested that the court hold off on enforcing this deadline while the case is reviewed, or at least provide 13 days of warning ahead of the deadline. This would allow app stores and internet providers time to adjust if the app is barred from U.S. usage.

Instead, the court decided to postpone any ruling on delaying the deadline until after the oral arguments.

What will the Supreme Court weigh?

The court will examine if the recently passed law, which received broad bipartisan support, infringes upon the First Amendment. If it does, the majority of justices must be convinced that the law fulfills an important government aim that can’t be achieved through other means.

The goal is to curb the risk of China obtaining data on Americans or manipulating TikTok content to influence American views. Research from the Pew Research Center indicates that nearly 40% of young adults in the U.S. often gather news from the app.

TikTok has suggested alternative solutions to ease the government’s concerns without necessitating a sale.

However, the Biden administration concluded that U.S. users’ data would still be transmitted to China, and ByteDance would maintain some control over TikTok’s U.S. operations. The administration expressed doubts about ByteDance’s willingness to comply and about the feasibility of effective monitoring by the U.S.

What was the ruling of the lower court?

In supporting the law, two of the three judges from the U.S. Court of Appeals for the D.C. Circuit who reviewed the case stated that the legislation was “carefully crafted” and part of a larger strategy to address a significant national security threat from China.

Judge Douglas Ginsburg, joined by Judge Neomi Rao, wrote, “The Government offers compelling evidence supporting its concerns about the threat posed by the PRC overall and through the TikTok platform specifically.”

Both judges were appointed by Republican presidents; Ginsburg by Ronald Reagan and Rao by Donald Trump.

The third judge, Sri Srinivasan, appointed by Democrat Barack Obama, concurred that the law should be upheld but wrote a separate opinion on the matter.

The consensus among this diverse panel of judges does not bode well for TikTok’s prospects before the Supreme Court.

Mary-Rose Papandrea, a law professor at the University of North Carolina, remarked that the appeals court’s decision placed significant weight on the government’s stance regarding national security.

“A lot of TikTok’s content is unrelated to geopolitical tensions, focusing instead on trivialities like silly products and cat videos, which don’t seem to pose a real threat,” she shared during a podcast discussion co-hosted by Lawfare and New York University’s Center on Technology Policy. “Are we really worried about watching too many cat videos?”

What will the Supreme Court decide?

Leslie Garfield Tenzer, a professor at Pace University Law School, expressed that predicting the Supreme Court’s decision is challenging due to TikTok’s significant impact.

“It has become deeply embedded in our economy through content creation and product sales,” she noted, emphasizing that a ban could cripple an entire industry.

Nevertheless, some experts believe the national security worries that influenced the appeals court will likely resonate with the justices, even without evidence of the Chinese government abusing the app.

“If you represent TikTok, you might argue, ‘There’s no direct evidence here,’ which is valid,” stated Alan Rozenshtein, an associate professor at the University of Minnesota Law School during the podcast. “On the other hand, the government can assert, ‘There’s no direct evidence, but there is a potential threat. It’s sitting right here, loaded, and we are aware that it has been used in harmful situations before. Shouldn’t we take precautions?’”

Rozenshtein expressed skepticism that the court would protect TikTok, leaving Trump as a possible final recourse.

Can Trump intervene for TikTok?

Trump’s most direct method to counter the law would be to persuade Congress to repeal it, a daunting task.

After his inauguration the day following the January 19 deadline, he could also utilize the law’s vague provisions about whether he can declare that TikTok is no longer under Chinese ownership, according to Rozenshtein.

“If Trump aims to assist TikTok, he might get ByteDance to rearrange assets, maybe even sell some, then assert that this provides enough legal grounds to declare a divestiture has taken place,” Rozenshtein suggested.

Trump might also instruct his attorney general not to enforce the law, although it’s uncertain if companies like Apple and Google would feel secure taking that path.

“I doubt those companies would accept that risk,” Hurwitz added. “The penalties under this legislation are quite severe.”

What does this mean for TikTok users?

Critics of the legislation argue that the appeals court scarcely considered the First Amendment rights of TikTok users regarding expression, sharing, and consuming information on the app.

Erwin Chemerinsky, dean of UC Berkeley Law School, recently wrote an opinion piece highlighting the significant and unprecedented implications for free speech if TikTok is banned in the U.S. and urged the Supreme Court to nullify the law.

A Pew Research Center survey from this summer revealed that one-third of Americans supported a government ban on TikTok, while 28% opposed it and 39% were undecided.

Even if TikTok were sold to a new owner to allow it to operate, advocates for free speech maintain that this solution falls short.

According to the American Civil Liberties Union, the Electronic Frontier Foundation, and the Knight First Amendment Institute, any divestiture “would inevitably change the platform, the way users interact with it, and the community that exists there.”

“It is inaccurate to say that all social media platforms are interchangeable, providing identical services and communities,” stated Wang from the Knight First Amendment Institute. “The notion that changing a platform’s ownership will have no consequences for free speech fails to grasp the intricacies of social media operations.”