President-elect Donald Trump has apparently reversed course on TikTok, asking the US Supreme Court (SCOTUS) to delay enforcing a ban so he can “negotiate a resolution.”

The US passed legislation giving parent company ByteDance until January 19 to sell the app’s US business to an American company or be banned. The ban was passed over concerns regarding national security, as ByteDance and TikTok are Chinese companies. As such, the companies are required to cooperate with Beijing’s espionage efforts. In addition to ties to Beijing, ByteDance and TikTok have been involved in one privacy scandal after another, showing little to nor regard for user privacy.

Calls for a ban first began during Trump’s first administration. While those attempts were unsuccessful, the Biden administration succeeded in passing the ban. TikTok has appealed, but U.S. Court of Appeals for the District of Columbia Circuit upheld the ban, shooting down the company’s argument that the ban infringes free speech.

Trump’s Appeal

In the midst of TikTok appealing to SCOTUS, Trump has filed a motion asking the court to hold off on a ruling. In the ruling, Trump’s attorneys argue that the President-elect has a First Amendment concern with the case.

Amicus curiae President Donald J. Trump (“President Trump”) is the 45th and soon to be the 47th President of the United States of America. On January 20, 2025, President Trump will assume responsibility for the United States’ national security, foreign policy, and other vital executive functions. This case presents an unprecedented, novel, and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other. As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means.

President Trump also has a unique interest in the First Amendment issues raised in this case. Through his historic victory on November 5, 2024, President Trump received a powerful electoral mandate from American voters to protect the free-speech rights of all Americans—including the 170 million Americans who use TikTok. President Trump is uniquely situated to vindicate these interests, because “the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation.” Anderson v. Celebrezze, 460 U.S. 780, 795 (1983).

Moreover, President Trump is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok with whom he actively communicates, allowing him to evaluate TikTok’s importance as a unique medium for freedom of expression, including core political speech. Indeed, President Trump and his rival both used TikTok to connect with voters during the recent Presidential election campaign, with President Trump doing so much more effectively. As this Court instructs, the First Amendment’s “constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 162 (2014) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).

The brief goes on to tout Trump’s experience as founder of Truth Social—while also overstating its success as “resoundingly successful”—as something that gives him perspective on the case.

Further, President Trump is the founder of another resoundingly successful social-media platform, Truth Social. This gives him an in-depth perspective on the extraordinary government power attempted to be exercised in this case—the power of the federal government to effectively shut down a social-media platform favored by tens of millions of Americans, based in large part on concerns about disfavored content on that platform. President Trump is keenly aware of the historic dangers presented by such a precedent. For example, shortly after the Act was passed, Brazil banned the social-media platform X (formerly known as Twitter) for more than a month, based in large part on that government’s disfavor of political speech on X. See, e.g., Brazil’s Supreme Court Lifts Ban on Social Media Site X, CBS N EWS (Oct. 8, 2024).

The brief claims that—out of all the countless officials, lawyers, judges, and politicians who have tackled the issue—Trump alone the necessary skills to get the job done.

In light of these interests—including, most importantly, his overarching responsibility for the United States’ national security and foreign policy— President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office. On September 4, 2024, President Trump posted on Truth Social, “FOR ALL THOSE THAT WANT TO SAVE TIK TOK IN AMERICA, VOTE TRUMP!”

Furthermore, President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged. See, e.g., Executive Order No. 13942, Addressing the Threat Posed by TikTok, 85 Fed. Reg. 48637, 48637 (Aug. 6, 2020); Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297 (Aug. 14, 2020). Indeed, President Trump’s first Term was highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor.

The First Amendment Question

It is somewhat interesting that Trump’s brief focuses on the First Amendment issue, since this was specifically addressed by the Court of Appeals.

The judges said the law banning TikTok was “carefully crafted to deal with only control by a foreign adversary,” and therefore the First Amendment wasn’t an issue.

“The government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States,” the judges continued.

It seems unlikely that SCOTUS will reverse the lower Court’s decision, unless it does so in response to Trump’s request. The issue, however, is that there is no legal basis for the Court to delay a law.

“The fact that the law goes into effect the day before Trump is inaugurated is just too bad for Trump, but a future president cannot ask a court to delay a law,” Alan Rozenshtein, a former DOJ official who now teaches at the University of Minnesota Law School, told Politico. He added that SCOTUS “does not have the authority to pause a law that was written by Congress and enacted” unless it tackles the question of its constitutionality.

When taken together, unless SCOTUS is willing to strike the law down altogether, it seems TikTok’s fate is likely sealed.