Tiktok ban in the fast lane to the US Supreme Court

Tiktok has achieved an interim success in its fight against the US ban: The Supreme Court accepts the company's application to review the legal ban for constitutional conformity. However, the Supreme Court does not grant the emergency application for a temporary stay.

Instead, the Supreme Court takes a step that is unusual in several respects: it has scheduled a two-hour hearing for January 10, 2025. You can't actually get an appointment that quickly, and hearings are usually only scheduled for one hour. In addition, the Supreme Court usually invites the US government to comment on an application before deciding whether to accept a case at all. The Supreme Court has omitted this intermediate step this time.

The aim of the express treatment is obvious: the central legal question of the admissibility of the legal Tiktok ban is to be decided before it comes into force nine days after the hearing date. Another day later, Donald Trump is sworn in as the new US President.

Trump's U-turn

Trump imposed the first Tiktok ban during his first term in office, but it was lifted by his successor Joe Biden before it took effect. But then the US legislature stepped in: both US parties jointly passed a law banning Tiktok with a clear majority. The Chinese company argues that the US law violates the US Constitution in several ways.

The law provides for a special, shortened legal process. It excludes an action in the federal district court that would normally have jurisdiction and referred Tiktok directly to the federal appeals court, without the possibility of an ordinary appeal against its ruling. The Federal Court of Appeals for the District of Columbia ruled against Tiktok and in favor of the legislature. Tiktok therefore appealed to the US Supreme Court on Monday; although the court only accepts a fraction of all cases brought before it, it did grant Tiktok a hearing.

While Trump banned Tiktok during his first term in office, he has recently spoken out in favor of saving the video service. "I have a warm place in my heart for Tiktok," said the US President-elect on Monday. Trump sees himself as particularly successful with young voters and attributes this to Tiktok. "I won the youth vote by 34 points, and there are people who say Tiktok had something to do with that," Trump said on Monday. In fact, his opponent Kamala Harris was ahead in this group by six percentage points, according to pollsters.

Indirect ban

Tiktok and its Chinese parent company Bytedance couldn't care less; Trump's public support was a nice argument in the emergency petition to the Supreme Court: "It would be in no one's interest [–] neither the litigants, the public, nor the courts [–] for Tiktok's statutory ban to go into effect before the government halts enforcement just hours, days, or weeks later," Tiktok wrote to the Supreme Court. Of course, the company makes even tougher constitutional arguments.

Although the US president cannot repeal the law on his own authority, he could extend the deadline by 90 days under certain conditions. Above all, however, he has influence over the authorities that would have to enforce the law. The new president could publicly urge his minister of justice and chief public prosecutor to allow Tiktok's US service providers to comply. If they rely on the authorities to turn a blind eye, Tiktok would continue to operate as usual despite the legal ban. This is because Tiktok is not banned directly, but US companies are prohibited from distributing the app or updates for it or hosting Tiktok videos.

• Tiktok's emergency appeal to the US Supreme Court

The case before the US Supreme Court is called TikTok and ByteDance v Merrick B. Since the Supreme Court will also hear a group of Tiktok users, it is also called Brian Firebaugh et al v Merrick B. Garland
Case No. 24-657

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