SCOTUS NEWS

Parties file final briefs before Supreme Court hears TikTok case

One week ahead of oral arguments in its challenge to a federal law that would require social-media giant TikTok to shut down in the United States unless its parent company can sell it by Jan. 19, the Biden administration filed its reply brief on Friday, urging the justices to allow the law to go into effect. The law, U.S. Solicitor General Elizabeth Prelogar told the justices, targets the national security risk of China’s potential control of the Beijing company, not free speech.

But TikTok pushed back, calling the Biden administration’s suggestion that the dispute does not implicate any First Amendment rights at all “obviously wrong.” And the group of TikTok creators that are also challenging the law agree with the company that the law “is anathema to the First Amendment because it aims to shield Americans from nothing more than a potentially disagreeable mix of ideas.”

The arguments came in three reply briefs filed on Friday afternoon as part of a highly expedited briefing schedule set in mid-December. A federal appeals court upheld the law in early December and declined to put it on hold, prompting TikTok and the group of creators to come to the Supreme Court on Dec. 16. Two days later, the justices agreed to weigh in and hold arguments on Jan. 10.

In its 25-page reply brief, TikTok and its parent company, ByteDance, rejected what they described as the government’s “startling proposition that there should be no judicial scrutiny of a law shuttering a speech platform used by 170 million Americans.” If the government were correct, they posited, it would mean that Congress could prohibit TikTok and ByteDance “from operating TikTok explicitly because they refused to censor views Congress disfavors or to promote views it likes.” More broadly, they contended, “this theory would strip First Amendment rights from any American speaker who publishes content that may reflect input from foreign entities or who is purportedly vulnerable to coercion from them.”

The government’s contention that TikTok does not have any First Amendment rights because it cannot change the algorithm that it employs to make recommendations to TikTok users is “unequivocally” refuted by the record, the companies say. By “implementing the recommendation engine on the U.S. platform,” TikTok and ByteDance explained, TikTok “makes the engine its own” and is acting as the publisher of the platform.

The TikTok creators rebuffed the government’s invocation of national security concerns to defend its efforts to regulate TikTok. Such concerns, they say, “justify restricting speech only where the government seeks to avert a concrete, imminent threat.” But in this case, the creators emphasized, the government merely asserts “that content on TikTok might persuade Americans of different social or political views. Our history, tradition, and precedent render the goal of limiting such speech constitutionally illegitimate.”

Moreover, the creators continued, there is a less draconian alternative to address these concerns. If, they suggested, “the worry is that Americans do not know the government thinks the curation of videos on their TikTok feeds might be influenced by the Chinese government, providing that information would fully address that risk without any need for censorship.”

And the creators dismissed the government’s contention that the law also seeks to protect against misappropriation of TikTok users’ data as “just the tail seeking to wag the dog.” The government, they stressed, “concedes that China has never coerced ByteDance into misappropriating TikTok user data.”

The Biden administration reiterated its argument that the law does not regulate TikTok’s speech. Although TikTok and the creators characterize the law as “an effort to suppress disfavored views,” it contended, once ByteDance sells off TikTok the law would allow the U.S. company to present “exactly the same content in exactly the same manner. The Act targets control by a foreign adversary, not protected speech,” Prelogar emphasized, and it does so to prevent that foreign adversary from covertly manipulating the content on TikTok, regardless of the views expressed there.

Prelogar insisted that TikTok and the creators offered no real response to the government’s concerns about protecting the data of TikTok’s U.S. users. Instead, she wrote, TikTok and the creators primarily contend that the government cannot rely on the need to protect data because, they argue, Congress would not have enacted the law just for that reason. But there is “every reason to think that Congress would have adopted the Act based on the data-protection interest alone,” Prelogar told the justices. Indeed, she said, “Congress considered evidence that TikTok collects data on an unsurpassed scale and that ByteDance has a history of abusing that data (by, for example, tracking U.S. journalists).”

Prelogar also pushed back against the plea made by President-elect Donald Trump, in a “friend of the court” brief last week, for the justices to delay the law’s effective date to give him time “to pursue a negotiated resolution.” Such a suggestion, she observed, is really a request for a temporary injunction, which would require TikTok to show that it is likely to prevail on the merits – something, she wrote, it has not done.

This article was originally published at Howe on the Court.