TikTok asks Supreme Court to block government ban

WASHINGTON (CN) — All eyes are on the Supreme Court after TikTok filed an emergency appeal Monday challenging a ban on the popular social site, but there’s no guarantee the justices will emerge as the app’s savior.

TikTok asked for a high court freeze of the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act on First Amendment grounds after the D.C. Circuit rejected its injunction request on Friday. The app said the ruling’s flawed legal rationale was a gateway to curb free speech.

“Fear-mongering about national security cannot obscure the threat that the Act itself poses to all Americans,” TikTok wrote in its emergency application.

Although the contentious case is being closely watched by the public, legal experts say there’s no guarantee the Supreme Court will hear the case or reverse the lower court ruling.

“There are certain factors to this that the Supreme Court in the past has taken cases like this,” Daniel Solove, a professor of intellectual property and technology law at George Washington University Law School said. “It involves free speech, it’s a very popular platform with millions of users, it’s an issue that’s very much in the news, but that does make the Supreme Court more likely to take cases. There’s also a lot of cases like that the Supreme Court doesn’t take, so it’s really hard to predict.”

Lawmakers passed the law in a sweeping foreign aid package in April, citing national security concerns about the platform’s parent company, ByteDance, being controlled to some degree by the Chinese government. The law requires any application controlled by a country the U.S. designates as a foreign adversary to cut ties with its parent entity or face fines and a general ban in the U.S.

Wayne Unger, an assistant professor of law at Quinnipiac University School of Law, said the high court has a history of reining in congressional authority when lawmakers step out of bounds, but the national security interests in this case could weigh in favor of upholding the law.

“The fact that Congress vetted this, decided this and then in a very bipartisan way enacted this bill off of the great vetting that Congress does — the congressional investigation before it actually passes a bill — for those reasons, I expect the court to give some deference to Congress more so on their national security determination, not necessarily because they’re Congress,” Unger said.

Last term, the justices recognized that social media apps themselves can have First Amendment rights just like their users, and TikTok claims the law violates its protected speech rights by preventing the app from disseminating speech from millions of users.

But like individuals, platforms’ constitutional rights are not absolute.

“If the government has a strong enough interest, like national security, it can in fact infringe on free speech,” Solove said. “Free speech is balanced; it’s not absolute. But there’s a threshold, and so the whole point of the judicial review, the whole reason and the whole protection of the right, turns on the scrutiny of the government interest. Did the government make its case that it really does have to do this?”

Like the D.C. Circuit, the Supreme Court will likely consider the ban under strict scrutiny — the most difficult burden for the government to meet. Unger said the justices are unlikely to rule that national security concerns about Chinese government access to users’ data aren’t a compelling government interest, but the law must closely hew to those concerns to pass muster.

“The national security interest is in relation to China, and so to mitigate that Chinese risk, either ban or sell,” Unger said. “There is a way in which the speech can continue, so it’s not an outright total ban, but it is mitigating that national security risk from China.”

TikTok said the D.C. Circuit was on the right path by subjecting the law to strict scrutiny but arrived at the wrong location. The app claimed the law imposes a content-based restriction on TikTok.

“Speech restrictions have survived the Constitution’s most demanding standard only in rare and narrow circumstances,” TikTok wrote. “This court should ensure that this critical protection has not been diluted by a decision upholding a law banning a speech platform used by half the country.”

Much of the controversy around a TikTok ban stems from the lack of public information about the app’s national security risks. Lawmakers seemed to be convinced by classified intelligence, but their assessment wasn’t openly shared with the public or the courts. Solove said the court’s deference to the government may become a problem.

“Deference is essentially saying, ‘We trust you, government. We’re not going to scrutinize you. We will just take you at your word if you say it’s national security. We will accept it without much scrutiny.’ I think that is totally unjustified. That is an abdication of the judicial role," he said.

The government has been know to lie about national security concerns in the past. Solove cited the government’s fight to block publication of the Pentagon Papers as one example.

“It turned out that it was totally bogus,” Solove said. “In fact, they were just making it up to cover their behinds, and they just didn’t want it out because it was embarrassing to them. I think it’s imperative that courts don’t defer because that’s basically giving up their role, which is to put the government’s argument to the test to make sure that when the government says, ‘we have to do this for national security,’ that in fact, they really do.”

Solove said that if there is a big national security risk, then the government should be able to provide evidence. Any classified information could be reviewed by the justices in private.

The government’s argument gained support from recent news of a Chinese government espionage campaign that infiltrated major U.S. telecommunications companies. According to the government, the Salt Typhoon hack gave foreign agents access to Americans’ real-time calls and texts.

The uncertainty at the Supreme Court becomes more complex as the incoming Trump administration regains power. President Joe Biden signed the ban into law, but former President Donald Trump has wavered on the issue.

Trump previously called for a ban on the app but more recently suggested he would save TikTok because of its benefits to his 2024 campaign.

“Trump is like an unpredictable chaos agent,” Solove said. “He’s about as predictable as a 3-year-old child, and so I don’t know what he’s going to do.”

Since any Supreme Court review of the ban would be conducted once he took office, Trump could instruct his Justice Department not to defend the ban. In that case, states could step in to defend the law, or the Supreme Court could appoint someone to argue in favor of the ban.

No matter what happens at the Supreme Court, both Biden and Trump have authority to delay the Jan. 19 deadline for ByteDance’s divestment. If Trump maintains his opposition to the law, he could also instruct his Justice Department not to enforce the law.

“Lawyers can get very creative with their arguments by pointing to other aspects of the law and even though John Doe the lawyer doesn’t want to enforce the national security law, he can point to it in another case alleging that Apple and Google have injured their plaintiff,” Unger said.  “They’ll say, well this is the legal standard, and they violated that legal standard.”

Trump also has the authority to determine what a “qualified divestiture” looks like. The Biden and Trump administrations tried to find a solution that would ease national security concerns before lawmakers stepped in to force ByteDance to divest or sell. But Trump could use his authority to make a deal with the company that gives both parties an advantageous outcome.

“What are the ways in which various things he could do with the ban would help Trump, and then how would he use them to leverage whatever he wants to do to help Trump — and that’s what he’ll do,” Solove said. “You’re not looking at a kind principle approach to this, it kind of depends. Is there a trade war? Is he going to try to use it as a bargaining chip? There’s a lot of things he could do to kind of sabotage the ban or to affect the case.”

ByteDance could also agree to sell to a U.S. buyer, allowing user data to be hosted within the country and stopping any further ban from taking effect. However, the company did not offer that as an option in its application before the court.

TikTok said the justices could treat the emergency appeal as a petition for certiorari and review the case on the merits. The app urged the high court to act before Jan. 6, stating the platform would need lead time to coordinate with service providers to shut down the site if an injunction is not granted.

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