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During more than two hours of oral arguments, many of the justices appeared to view the sell-or-ban law approved by Congress in April not as one that primarily implicates the First Amendment but rather as an effort to regulate the potential foreign control of an app used by 170 million Americans.

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Justices across the ideological spectrum raised doubts that the TikTok ban even implicated the First Amendment. That’s a bad sign for TikTok, because to win, it had to prove first that the First Amendment applies in the case and then that the law has failed to meet its tests.

In an exchange with a lawyer for users of the application, Chief Justice John Roberts said that, in passing the law, Congress was “fine with the expression.”

“They’re not fine with a foreign adversary, as they’ve determined it is, gathering all this information about the 170 million people who use TikTok,” he said.

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Justice Elena Kagan also had questions suggesting she wasn’t sure the First Amendment even applied in this case, though later in the arguments she also had skeptical questions for the government.

“The law is only targeted at this foreign corporation, which doesn’t have First Amendment rights,” she said to the lawyer arguing on TikTok’s behalf.

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“For years, the Chinese government has sought to build detailed profiles about Americans – where we live and work, who are friends and coworkers are, what our interests are and what our vices are,” Prelogar, making her final argument on behalf of the Biden administration, told the Supreme Court.

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Congress and the president, Kavanaugh said, “were concerned that China was accessing information about millions of Americans – tens of millions of Americans – including teenagers, people in their twenties” and that the country might use that information “to turn people, to blackmail people – people who a generation from now will be working in the FBI or the CIA or in the State Department.”

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“Don’t we normally assume that the best remedy for problematic speech is counter speech?” Gorsuch asked, taking up a suggestion from TikTok that Congress should have considered warning labels for the platform rather than an outright ban.

“TikTok,” Gorsuch pointed out, “says it could even live with a disclaimer on its website saying this can be covertly manipulated by China.”

On a court that has reliably expanded First Amendment rights for several decades, Gorsuch expressed reservations about the government’s theory that those protections don’t even apply in this case. To underscore those concerns, he raised a hypothetical about a foreign-owned newspaper. Could the government attempt to shut down that hypothetical platform under its theory, he asked.

One of the important differences between a newspaper and social media platform, Prelogar responded, is that users of social media operate under an assumption that “it’s organically feeding them videos based on the recommendation engine.” Newspapers, she said, operate more like one-way modes of communication.

Kagan, who peppered both sides of the case with difficult questions, raised similar themes. She pointed to the nation’s history of allowing foreign messages into the United States, including communist propaganda during the height of the Cold War that may have had ties to the Soviet Union.

“You know, in the mid-20th century, we were very concerned about the Soviet Union, and what the Soviet Union was doing in this country,” Kagan said.

If Congress had told the Communist Party in the United States that it had to cut ties with the Soviet Union, “do you think that that would have been absolutely fine?”

Unless the Supreme Court acts block the law, TikTok “will go dark” starting on January 19, its attorney, Noel Francisco, said.

Francisco, a former solicitor general during the Trump administration, said he expects TikTok to be removed from app stores “at a minimum.”

“But in addition, what the act says is that all of the other types of service providers can’t provide service either,” he added. “Now, there’s enormous consequences for violating that for the service providers.”

If TikTok is removed by app store operators, that means new users won’t be able to download it. For existing users who already have the app on their phones, it won’t disappear, but because they won’t be able to update it via the app stores, it likely will eventually become buggy and riddled with security vulnerabilities.

But even if the court upholds the ban, there remains considerable uncertainty around the app’s accessibility in the Trump administration. Trump has said he wants to save TikTok and the law gives him wide latitude on enforcement.

“It is possible that come January 20th, 21st, 22nd, we might be in a different world,” Francisco said.

“When push comes to shove and these restrictions take effect,” Prelogar said, “it might be just the jolt that Congress expected the company would need to actually move forward with the divestiture process.”

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Prelogar said that the court certainly had that power if it needed more time to decide the case, but she noted it had been fully briefed and now argued.

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“I am a little concerned that a suggestion that the president-elect or anyone else would not enforce the law, when a law is in effect and is prohibitive of certain action, that a company would choose to ignore enforcement on any assurance, other than a change in that law,” she said, while stressing that the company would, in that scenario, be violating the law.

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