SCOTUS NEWS

TikTok, Biden, Trump present arguments over app ban to justices

The Biden administration on Friday afternoon urged the Supreme Court to leave in place a federal law that would require TikTok to shut down in the United States unless its parent company can sell off the U.S. company by Jan. 19. U.S. Solicitor General Elizabeth Prelogar told the justices that the social media giant “collects vast swaths of data about tens of millions of Americans, which” China “could use for espionage or blackmail.” Moreover, she added, China could “covertly manipulate the platform to advance its geopolitical interests and harm the United States—by, for example, sowing discord and disinformation during a crisis.”

But TikTok and its users, which are challenging the law, pleaded with the court to strike down the TikTok ban. Calling the platform one of the country’s “most important venues for communication,” TikTok acknowledged that the government has a “compelling interest” in protecting the country’s security. “But that arsenal,” TikTok insisted, “simply does not include suppressing the speech of Americans simply because other Americans may be persuaded.”

A group of TikTok users echoed that sentiment, telling the justices that the law “violates the First Amendment because it suppresses the speech of American creators based primarily on an asserted government interest—policing the ideas Americans hear—that is anathema to our Nation’s history and tradition and irreconcilable with this Court’s precedents.”

President-elect Donald Trump also weighed in. In an 18-page filing that characterized Trump’s first term in office as “highlighted by a series of policy triumphs achieved through historic deals,” Trump urged the court to delay the ban’s Jan. 19 effective date to allow his administration, which will take office on Jan. 20, to “pursue a negotiated resolution” – which presumably would have to include new legislation enacted by Congress.

Friday’s filings were the first step in a highly expedited schedule set on Dec. 18 by the Supreme Court. TikTok and its parent company, ByteDance, had come to the Supreme Court two days before that, asking the justices to temporarily block enforcement of the Protecting Americans from Foreign Adversary Controlled Applications Act. The law, which was enacted as part of a package to provide aid to Ukraine and Israel, identifies China and three other countries (North Korea, Russia, and Iran) as “foreign adversaries” of the United States and prohibits the use of apps controlled by those countries. The law also defines applications controlled by foreign adversaries to include any app run by TikTok or ByteDance.

TikTok, ByteDance, and the TikTok users had first filed challenges to the law in the U.S. Court of Appeals for the District of Columbia Circuit.
But that court rejected TikTok’s argument that the law violates the First Amendment, explaining that the law was the “culmination of extensive, bipartisan action by the Congress and by successive presidents.” The law, Senior Judge Douglas Ginsburg stressed, was “carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the People’s Republic of China.”

And after the D.C. Circuit turned down a request to put the law on hold to give TikTok time to seek review in the Supreme Court, TikTok and a group of its users went to the Supreme Court on Dec. 16, asking the justices to step in. In an order issued two days later, the justices declined to put the law on hold but agreed to take up the dispute and fast-track the briefing schedule, calling for opening briefs from both the challengers and the federal government on Dec. 27.

In its brief on Friday, TikTok emphasized that the government’s justification for the ban – that TikTok “could be indirectly pressured by China to alter the mix of ‘content’ to influence American minds – “is at war with the First Amendment.”

At the very least, TikTok suggested, the government should have considered, but did not, alternatives that would place fewer restrictions on speech—for example, requiring TikTok to include a “conspicuous” warning of the government’s belief that China could coerce TikTok to manipulate the information that users receive.

Like TikTok, the TikTok users challenging the ban argued that the most stringent constitutional test, known as strict scrutiny, should apply to the ban. The law, they said, “is a direct and severe restraint on speech” because it “targets TikTok” but does not apply to other sites that host other kinds of content, such as product or travel reviews.

The First Amendment analysis is not changed just because ByteDance could sell TikTok, they maintained. Because a sale is “impossible on the timeframe contemplated by the Act,” they say, it effectively constitutes a ban on TikTok. But even if ByteDance could sell TikTok, they continued, the change in ownership would still “inevitably lead to different publishing and editorial policies” for TikTok users in the United States, so that their experiences and expression would be different – just as X (formerly known as Twitter) has changed since Elon Musk purchased it in 2022.

Nor can the government rely on argument that the law was intended to prevent the Chinese government from using TikTok’s data about its U.S. users for “nefarious purposes,” they added. The law primarily targets content, they write, and in any event it is “woefully underinclusive from any data-security standpoint; it makes no sense to single out TikTok while excluding e-commerce and review platforms that raise the same concern.”

The Biden administration framed the question before the court as whether the requirement that ByteDance sell TikTok violates the First Amendment. Congress, Prelogar wrote, responded to the “grave national security threats” that TikTok poses by placing limits on who can control TikTok, rather than imposing restrictions on speech itself. But if ByteDance sells TikTok, Prelogar stressed, TikTok can continue business as usual in the United States.

Prelogar insisted that the ban does not implicate any First Amendment rights at all. ByteDance, she observed, is a foreign company that operates overseas, TikTok does not have a First Amendment right to be controlled by a foreign adversary, and TikTok’s users do not have a right to post their content “on a platform controlled by a foreign adversary.”

Prelogar also pushed back against TikTok’s suggestion that the government could have addressed concerns about potential manipulation of the content on the platform by requiring TikTok to include a disclosure. “By definition,” she told the justices, ‘disclosure is not an effective remedy for covert influence operations.”

Although he currently opposes a TikTok ban, during his first term Trump signed an executive order, later overturned that would have effectively banned the platform in the United States. The brief that he filed on Friday, however, indicated that he did not support either the challengers nor the Biden administration.
Represented by D. John Sauer, whom Trump intends to nominate to serve as solicitor general, Trump told the justices that he “alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a solution to save the platform while addressing the national security concerns expressed by the Government.”

In addition to Trump, 20 other “friend of the court” briefs were submitted on Friday, by groups ranging from members of Congress and legal scholars to human rights groups working on behalf of (among others) Uyghurs in China and political prisoners in Hong Kong. The human rights groups described TikTok as a “well-positioned Trojan Horse. Not only is it a convenient tool for covertly controlling the information environment within the United States at the direction of a foreign adversary,” they cautioned, “but it also is a great weapon to find, silence, and detain dissidents abroad.”

Each side will file reply briefs by 5 p.m. on Jan. 3, with two hours of oral arguments to follow on Jan. 10.