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UPDATED: A group of TikTok users filed a separate application on Monday afternoon, also asking the court to block enforcement of the law.
Social media giant TikTok and its parent company, ByteDance, on Monday asked the justices to block a federal law that would require TikTok to shut down in the United States unless ByteDance can sell off the U.S. company by Jan. 19. Unless the justices intervene, the companies argued in a 41-page filing, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.”
The request came three days after a federal appeals court in Washington turned down a request to put the law on hold to give TikTok time to seek review in the Supreme Court. A panel made up of judges appointed by Presidents Barack Obama, Donald Trump, and Ronald Reagan explained that the companies were effectively seeking to delay “the date selected by Congress to put its chosen policies into effect” –particularly when Congress and the president had made the “deliberate choice” to “set a firm 270-day clock,” with the possibility of only one 90-day extension.
Congress enacted the law, the Protecting Americans from Foreign Adversary Controlled Applications Act, earlier this year, and President Joe Biden signed it on April 24. The law identifies China and three other countries as “foreign adversaries” of the United States and bans the use of apps controlled by those countries.
TikTok, which has roughly 170 million users in the United States and more than a billion worldwide, ByteDance, and others filed challenges to the law in the U.S. Court of Appeals for the District of Columbia Circuit.
In an opinion by Senior Judge Douglas Ginsburg, a Reagan appointee, the court of appeals concluded that TikTok had a legal right to sue, known as standing, to challenge the enforcement of provisions of the law that specifically target the company and that the lawsuit could go forward.
But the court of appeals rejected the company’s argument that the law violates the Constitution, explaining that the law was the “culmination of extensive, bipartisan action by the Congress and by successive presidents.” The law, Ginsburg stressed, was “carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the People’s Republic of China.”
Chief Judge Sri Srinivasan, an Obama appointee, agreed the law does not violate the First Amendment, but he would have applied a less stringent standard of review in reaching that conclusion.
Calling the law an “unprecedented attempt to single out” TikTok and prohibit it from “operating one of the most significant speech platforms in” the United States, TikTok urged the justices to step in and put the law on hold while the company seeks review of the D.C. Circuit’s ruling. Represented by Noel Francisco, who served as the U.S. solicitor general during the first Trump administration, the company contended that blocking enforcement of the law would not “materially harm” the federal government. Even the government, Francisco observed, “asserts only that China ‘could’ engage in harmful conduct through TikTok, not that there is any evidence China is currently doing so or will soon do so.”
Moreover, Francisco added, Trump and his aides “have voiced support for saving TikTok,” so a “modest delay in enforcing” the law will give both the justices time to review the issues presented by the case and the new administration an opportunity to weigh in—“before this vital channel for Americans to communicate with their fellow citizens and the world is closed.”
Citing the need to “coordinate with their service providers to perform the complex task of shutting down the TikTok platform only in the United States” if the Supreme Court declines to intervene, TikTok asked the justices to act on its request by Jan. 6.
TikTok also suggested that the justices could treat its request as a petition for review and take up the case now, without waiting for additional filings.
TikTok’s request will go first to Chief Justice John Roberts, who handles emergency appeals from the D.C. Circuit. Roberts could act on the request himself, but he is more likely to call for a response from the Biden administration and to then send the matter to the full court.
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