TikTok was left with few options after the Supreme Court hearing

TikTok was left with few options after the Supreme Court hearing

After TikTok’s lawyers appeared before the Supreme Court on Friday and were met with skepticism, there appear to be few avenues left for the platform’s future in the US

If the Supreme Court votes to uphold the law that President Joe Biden signed in April, TikTok will be shut down on January 19, a day before Donald Trump takes office. The law requires TikTok to divest itself of its Chinese assets and sell them to a U.S. company. If the judges declare the law unconstitutional, TikTok can continue to exist as it does today for its 170 million American users – about half of the US population.

But the direction of Friday’s oral arguments threw that possibility into question.

There are a few factors that might come into play with other options. TikTok has asked to extend the deadline for the Supreme Court’s decision, a decision the justices can make to delay their final ruling. Trump has supported TikTok and filed an amicus brief with the Supreme Court in December advocating for such an extension, which would push the sales deadline into his term as president. An extension, he said, would allow his government (which is divided over TikTok) to pursue a “political solution” to the app’s future.

It’s not entirely clear what form this would take.

One of Trump’s options would be to give TikTok a 90-day extension to continue its efforts to find an American buyer – a provision explicitly written into the law that forces a sale. However, TikTok’s Chinese parent company ByteDance said it would not agree to sell the app. If ByteDance agrees to a sale, there are U.S. buyers ready to buy TikTok, including billionaire CEO Frank McCourt.

Gautam Hans, a law professor at Cornell University, said TikTok has had a “tough time” with the Supreme Court, adding he thinks it’s unlikely the justices would side with the platform. He called Trump’s order “unprecedented” and said it was unclear how Trump would pursue a political solution, with some unlikely possibilities.

“There is a possibility that he will pressure Congress to repeal the law,” Hans said. “That would be quite extraordinary, considering that the law was passed largely on a party-political basis. It would take a lot of setbacks from lawmakers to undo the law.”

Hans said Trump could also order the Justice Department not to enforce the law, meaning it would not prosecute Google and Apple’s app stores for hosting the app. But Hans didn’t think both companies’ legal counsel would be comfortable defying the law based on Trump’s words alone.

Attorney General Elizabeth Prelogar, who defended the U.S. government’s position on TikTok before the Supreme Court, indicated in her argument that she believes ByteDance could move to sell the company if the law is followed.

“I think Congress is anticipating that we could have something like a game of chicken where ByteDance says we can’t do this, China will never let us do this,” Prelogar said in court Friday. “But when push comes to shove and these restrictions go into effect, I think the landscape will fundamentally change in terms of what ByteDance is considering, and it could be exactly the jolt that Congress was expecting, that the company must actually move forward with the divestiture process.”

Rita McGrath, academic director of executive education at Columbia Business School, said buyers like McCourt are betting that TikTok will still choose to sell to a U.S. owner if the company has no other choice.

“If they close, which is likely, I think it opens up a second level of negotiation opportunity,” McGrath said. “TikTok has taken the time from the passage of the law to these court hearings not to investigate buyers, not to consider an alternative, and not to consider what remedies may be available to them.” They have launched a lobbying and charm offensive. For them it’s a kind of Hail Mary.”

McGrath said regardless of whether TikTok sells or not, she believes creators can switch to alternatives. Platforms like Meta with Instagram Reels and Google with YouTube Shorts would see an advantage in the short video space if TikTok disappears. Still, McGrath said it would be a “loss” for the people who have built large, profitable and influential TikTok followings.

“The users have real interests here. You use the platform to communicate, share content, discuss and earn money. “The closure will have a major social, political and economic consequence for these individuals, not just the company,” Hans said. “This is, I think, a big challenge from a First Amendment perspective: the rights and interests of users, which are really important, considering there are over 170 million of them in this country who will be affected in some way .” There’s no easy way to fix this.”

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