TikTok asks to freeze looming ban pending SCOTUS appeal

WASHINGTON (CN) — TikTok filed an emergency motion Monday seeking to halt an impending Jan. 19, 2025, deadline for the social media giant to divest itself from Chinese parent company ByteDance to allow the Supreme Court to hear its appeal.

“TikTok is, at its core, its 170 million American users,” TikTok spokesperson Michael Hughes said in an emailed statement. “Estimates show that small businesses on TikTok would lose more than $1 billion in revenue and creators would suffer almost $300 million in lost earnings in just one month unless the TikTok ban is halted.”

The filing comes hot on the heels of a D.C. Circuit Court of Appeals panel decision Friday to uphold the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act as constitutional.

The three-judge panel found that the government’s national security concerns regarding TikTok’s Chinese ownership, China’s purported ability to covertly manipulate content on the app and collect users’ data overrode the social media company’s First Amendment concerns.

In the filing, TikTok argues that the Supreme Court should have the opportunity to review the “exceptionally important” case.

“An injunction is especially appropriate because it will give the incoming administration time to determine its position — which could moot both the impeding harms and the need for Supreme Court review,” TikTok said.

President-elect Donald Trump pledged in September to “save” TikTok after he takes office on Jan. 20, a reversal from his initial determination that the app’s ownership by a foreign adversary and his efforts to force the app’s divestiture during his first term.

Trump has not commented on the D.C. Circuit’s ruling, leaving his intentions unclear. However, potential members of his cabinet, such as Secretary of State-nominee Marco Rubio and FCC chair-nominee Brendan Carr have supported a ban over national security concerns.

Trump’s transition team did not respond to a request for comment.

TikTok argues that an injunction would pose no “imminent threat” to national security, pointing to Congress’ decision to delay the challenged statute’s effective date for 270 days from its passage on April 24.

Further, TikTok points to the Justice Department’s speculative defense, which argues that China “could” engage in harmful conduct via TikTok, but did not say China was actively subverting the platform.

U.S. Senior Circuit Judge Donald Ginsburg wrote in the panel’s opinion that the statute satisfied strict scrutiny, the highest level of analysis a court can conduct in a First Amendment challenge. The Ronald Reagan appointee noted that the government’s national security concerns justified the major speech restriction a ban would cause.

Ginsburg explained that Supreme Court precedent — Trump v. Hawaii and Pacific Networks Corp. v. FCC * —*  requires courts to afford “great weight” to national security judgments, especially those made by the president.

TikTok argues that the appellate panel’s ruling that strict scrutiny applied while still upholding the statute gave more reason for the Supreme Court to intervene.

“As speech restrictions have survived strict scrutiny only in rare and narrow circumstances, the Supreme Court will want to ensure that this court’s decision has not diluted that critical standard,” TikTok said. “All the more so because, with respect, this court’s flawed legal rationales would create precedent opening the door to upholding content-based speech bans in factual contexts far different from this one.”

Chief U.S. Circuit Judge Sri Srinivasan, a Barack Obama appointee, noted however in a concurring opinion that he thought the statute only needed to satisfy intermediate scrutiny — in part because of TikTok’s Chinese rather than American ownership, and because the divestment requirement does not target speech on the app.

TikTok has repeatedly argued that the January deadline for divestiture was nearly impossible to meet. If the company was able to find a U.S.-based buyer in time, it would place stateside users on a virtual island disconnected from the rest of the globe.

TikTok urged the D.C. Circuit to decide on the motion by Dec. 16. The Justice Department will file any response by Dec. 11, with another TikTok reply on Dec. 12.

The case stems from a lawsuit filed by TikTok at the D.C. Circuit to block the ban, which it described as an obvious, extraordinary and unconstitutional restriction of speech.

Lawmakers slipped a sweeping foreign-aid package into the act that also included around $95 billion for Ukraine, Israel and Taiwan. The act passed with a wide bipartisan margin as Congress argued the platform posed a national security threat. Biden signed it into law April 24.

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