TikTok asks SCOTUS to block law that would shut down app
TikTok has asked the Supreme Court to block a federal law that would shut down the wildly popular platform in the United States next month unless the company divests from Chinese ownership. (Photo by Costfoto/NurPhoto via Getty Images)
TikTok on Monday asked the Supreme Court to block a federal law that would shut down the wildly popular platform in the United States next month unless the company divests from Chinese ownership.
The company’s lawyers asked the Supreme Court to put on hold a lower-court ruling that clears the way for the law. They asked the high court to intervene before Jan. 19, the deadline Congress set for TikTok’s China-based parent company, ByteDance, to sell the video-sharing platform or be barred nationwide.
But President-elect Donald Trump, who will take office on Jan. 20, has signaled he could try to chart a different course, adding to the uncertainty surrounding the law. He planned to meet Monday evening with TikTok CEO Shou Zi Chew, according to a person familiar with the matter, who spoke on the condition of anonymity to discuss a private event.
Lawmakers passed the ban-or-sale measure with bipartisan support in response to concerns from U.S. officials that TikTok could be pressured by the Chinese government to covertly manipulate public opinion in the U.S. or to provide access to Americans’ data.
In upholding the law, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit credited the national security concerns of Congress and the Biden administration and said the law does not violate the free speech rights of millions of users or its owners.
The justices could now decide to put the law on hold, granting the company a temporary reprieve, as they weigh whether to review the case.
The fast-moving litigation has broad implications for the government’s ability to influence social media platforms. Last term, in a case involving laws in Texas and Florida, the Supreme Court dealt a blow to state efforts to restrict the content-moderation choices of social media giants.
In its filing, TikTok said the justices must step in to review “a massive and unprecedented speech restriction” that raises novel constitutional questions. The company asked the justices to act by Jan. 6 to give app stores and web hosting services time to prepare to abide by the court’s direction—and said there is a reasonable possibility that Trump will take a different approach to TikTok.
The law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration. This, in turn, will silence the speech of applicants and the many Americans who use the platform to communicate about politics, commerce, arts and other matters of public concern,” said the filing led by attorney Noel Francisco, who served as solicitor general during Trump’s first term.
Trump has sent mixed signals about whether he would try to retain access to TikTok, which has more than 170 million U.S. users. He previously advocated for a prohibition on the app, but more recently has promised to “save” it from a U.S. ban.
“We’ll take a look at TikTok,” Trump said at a Florida news conference on Monday when asked how he would stop the ban, adding that he has a “warm spot in my heart for TikTok.”
Trump would not as president have the power to overturn the ban outright. But he could push Congress to repeal the law or encourage his attorney general to refrain from enforcing it. Even then, however, app store owners or web hosting companies might be concerned about continuing to include TikTok in violation of the law. Trump’s planned meeting at Mar-a-Lago with Chew, the company’s CEO, was first reported by CNN.
In April, President Joe Biden signed the law that would force a sale of the app or bar its distribution in the United States. Lawmakers said the measure was needed because the company’s ownership structure could allow a foreign adversary—the Chinese government—to harvest data from Americans and influence U.S. public opinion.
TikTok, which disputes those claims, joined with a group of online creators to file a lawsuit, saying the ban violates the First Amendment by infringing on expressive activity and the curation of content, a form of speech. The company’s lawyers said the law singles out and silences TikTok and millions of users based on speculative national security concerns that should not override First Amendment protections.
The ban is a “radical departure from this country’s tradition of championing an open Internet, and sets a dangerous precedent allowing the political branches to target a disfavored speech platform and force it to sell or be shut down,” the company said in an earlier court filing.
Congress could have instead addressed such concerns through a less sweeping measure by imposing industry-wide privacy, disclosure and oversight rules, TikTok’s lawyers say.
In its ruling this month, the D.C. Circuit sided with the Justice Department and upheld the law, finding it consistent with the First Amendment because the judges said it does not target a specific message or point of view for censorship, but instead seeks to address the ability of a foreign adversary to manipulate content covertly.
“The First Amendment exists to protect free speech in the United States,” wrote Judge Douglas Ginsburg, who was joined by Judge Neomi Rao and Chief Judge Sri Srinivasan. “Here the Government acted solely to protect that freedom from a foreign adversary nation.”
Writing separately, Srinivasan said the government was justified in its concerns about a foreign adversary’s ability to acquire sensitive information on Americans and secretly shape content they view on the app.
Even though millions of Americans may lose an outlet for expression and a source of community, he wrote, “the record reflects that Congress’s decision was considered, consistent with long-standing regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas.”
The Justice Department did not immediately respond to a request for comment on the company’s filing Monday, but Attorney General Merrick Garland has praised the D.C. Circuit decision as an important step in blocking the Chinese government from “weaponizing TikTok to collect sensitive information about millions of Americans.”
ByteDance officials have said selling off the U.S. app would be extraordinarily challenging for several reasons, including its reliance on a global software infrastructure and user base, as well as China’s long-standing pledge to block the sale of the app’s signature video-recommendation algorithm.
Marianne LeVine in Palm Beach, Florida, and Drew Harwell contributed to this report.
