Supreme Court Will Hear TikTok’s Challenge to Looming US Ban (3)

The US Supreme Court said it will hear on an expedited basis TikTok’s challenge to a law that would ban the popular social media platform next month if it isn’t sold by its Chinese parent company.

The court scheduled arguments for Jan. 10, little more than a week before the ban takes effect Jan. 19. The high court scheduled a special argument day to consider the law and allotted two hours, double the usual time.

TikTok and its parent company, ByteDance Ltd., say the law violates the Constitution’s free speech protections. A three-judge panel in Washington unanimously upheld the law earlier this month as a legitimate means of protecting national security and user privacy. Unless the Supreme Court blocks it, the law will take effect the day before President-elect Donald Trump is inaugurated.

TikTok had asked the Supreme Court to temporarily block the law while considering the case. The court on Wednesday deferred acting on that request, instead setting a schedule that would allow a definitive ruling before Jan. 19. TikTok said a pause would let the incoming Trump administration time develop a position that could suspend Justice Department enforcement of the law.

The Supreme Court move is “highly unusual,” but doesn’t necessarily mean the justices will strike down the law, says Matthew Schettenhelm, an analyst for Bloomberg Intelligence. He gives the company a 30% chance of winning.

“The heart of this case is balancing the First Amendment against two things: first, national security concerns generally and, second, the court’s deference to Congress and the executive in making those national security determinations,” said Gus Hurwitz, academic director of the Center for Technology, Innovation and Competition at the University of Pennsylvania’s Carey School of Law.

He said it is “quite unlikely” the court will overturn the law, in part because of an opinion earlier this year by Justice Amy Coney Barrett saying that foreign corporations and people don’t have First Amendment rights.

TikTok called the law “a massive and unprecedented speech restriction” in violation of the Constitution’s First Amendment. The law will will “silence the speech” of the company and “the many Americans who use the platform to communicate about politics, commerce, arts, and other matters of public concern,” TikTok said in court papers.

TikTok spokesman Michael Hughes said the company was pleased with the high court order.

“We believe the court will find the TikTok ban unconstitutional so the over 170 million Americans on our platform can continue to exercise their free speech rights,” he said in an emailed statement.

The US Court of Appeals for the DC Circuit upheld the law on a 3-0 vote, saying Congress and the president are entitled to a wide berth when they make national security determinations. The panel consisted of two Republican appointees and one Democratic appointee.

“The First Amendment exists to protect free speech in the United States,” Judge Douglas Ginsburg wrote for the panel. “Here 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.”

Threat Alleged

The Biden administration is defending the law. “Given TikTok’s broad reach within the United States, the capacity for China to use TikTok’s features to achieve its overarching objective to undermine American interests creates a national-security threat of immense depth and scale,” the Justice Department argued at the appeals court level.

The law is also being challenged by a group of content creators. Paul Tran, a skincare line co-founder who is part of the group, said he remains hopeful even as his business preps for a revenue hit from a ban by cutting back hours and staff.

“Us going to the Supreme Court is still that light of hope,” he said. “I feel like it is our last stand at the Alamo kind of thing.”

Trump said this week he has a “warm spot” in his heart for TikTok because the platform helped sway young voters to his side in the November election. Should the law take effect, his stance could affect how it plays out in practice. The Justice Department is charged with enforcing the law and, as president, Trump would have power to approve any divestment proposal.

The law doesn’t require people to remove their TikTok apps. It instead bars companies that support TikTok – including Oracle Corp., whose servers house the platform, from continuing to provide critical services.

If the court doesn’t block the ban, TikTok will be removed from mobile app stores on Jan. 19, making it unavailable to Americans who don’t already use the platform. Eventually, current users will be unable to access the app.

The Supreme Court’s fast-track schedule is aggressive, but by no means unprecedented. When the court issued the 2000 Bush v. Gore decision, which sealed George W. Bush’s presidential election victory, the justices ruled the day after they heard arguments and three days after they agreed to hear the case.

The Supreme Court cases are TikTok v. Garland, 24-656, and Firebaugh v. Garland, 24-657.

(Updates with reaction starting in fifth paragraph. An earlier version corrected the spelling of TikTok’s name.)

--With assistance from Sabrina Willmer.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Greg Stohr

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