Supreme Court to Hear Emergency TikTok Appeal as Ban Looms

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Legal experts differ about how they think the Supreme Court will rule on a federal law requiring Chinese tech company ByteDance to sell TikTok by Jan. 19 or be shut down in the United States.

The court will hear TikTok Inc. v. Garland and its companion case, Firebaugh v. Garland, together on Jan. 10 in a dramatic legal showdown nine days before the “divest-or-ban” law takes effect.

Complicating matters, President-elect Donald Trump, a social media enthusiast, is urging the justices to put the law on hold so he can attempt to fashion a political solution when he returns to the White House in the coming days.

According to the emergency application filed by the platform, in 2023, there were about 170 million monthly U.S. users of TikTok who uploaded more than 5.5 billion videos that received upward of 13 trillion views, half of which took place outside the United States.

In the same year, users viewed content originating from abroad upward of 2.7 trillion times.

The Jan. 10 high-stakes hearing stems from the Protecting Americans from Foreign Adversary Controlled Applications Act, which was signed into law by President Joe Biden on April 24, 2024.

The bill was approved by the Senate 79–18 the day prior as part of a larger foreign and military aid package after the House passed it 360–58 on April 20, 2024.

TikTok is operated in the United States by TikTok Inc., a U.S. company that Cayman Islands-based ByteDance owns indirectly.

According to the application, ByteDance owns subsidiaries in China and other nations.

TikTok denies Chinese influence in its operations.

“No arm of the Chinese government has an ownership stake—directly or indirectly—in TikTok Inc. or ByteDance Ltd.,” the application reads.

Lawmakers, including then-Rep. Mike Gallagher (R-Wis.), an early sponsor of the law, have rejected claims that the Chinese Communist Party isn’t involved in the platform.

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The statute requires TikTok Inc. to separate itself from ByteDance by Jan. 19—the day before Trump will be inaugurated—or stop operating in the United States.

The law also contains a provision giving only the U.S. Court of Appeals for the District of Columbia Circuit authority over legal challenges to it.

On Dec. 13, 2024, the D.C. Circuit upheld the statute, finding it constitutional, and denied TikTok’s request to prevent the law from taking effect.

The statute deals with “the serious threats to national security posed by the Chinese government’s control of TikTok, a platform that harvests sensitive data about tens of millions of Americans and would be a potent tool for covert influence operations by a foreign adversary.”

The act’s remedy is not to enforce speech restrictions but instead to forbid “a foreign adversary from controlling the platform.”

This “content-neutral divestiture requirement” does not run afoul of the First Amendment, she said.

The D.C. Circuit held that the act “is one of those rare laws that can survive strict scrutiny,” basing its conclusion on Congress’s concerns “about potential ‘risks’ that China could exercise malign influence over the American platform through Applicants’ foreign affiliates,” the company stated.

Courts use the strict scrutiny test when reviewing legislative or executive branch enactments that are said to infringe on constitutional rights.

The brief states that because Trump will soon become the nation’s chief executive, he should have a say in how the case is resolved.

“[Trump] is the right constitutional actor to resolve the dispute through political means,” it reads.

Trump, who “is one of the most powerful, prolific, and influential users of social media in history,” founded TruthSocial, a social media platform, and has 14.7 million followers on TikTok, according to the brief.

The president-elect is concerned that the federal government is closing down a “platform favored by tens of millions of Americans, based in large part on concerns about disfavored content on that platform.”

This sets a bad precedent, the brief states, noting that Brazil banned the platform X,  for weeks in 2024 because it did not approve of the content carried on it.

Trump opposes allowing the law to come into force on Jan. 19 because he wants time to develop a political resolution for the problem when he returns to the White House.

“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged,” it reads.

Wilson Freeman, an attorney at Pacific Legal Foundation, said it was unclear how the Supreme Court would treat Trump’s submission in the case.

Trump is “definitely an unusual amicus” and “there is good reason for the Court to listen to him,” but “it’s always dicey predicting what the Supreme Court will do,” he told The Epoch Times.

“I think they’re going to try to decide the case before Jan. 19” based on the merits of the arguments presented to them instead of deferring to Trump and allowing the new administration to attempt to resolve the problem, he said.

Trump’s brief was not “incredibly persuasive” and failed to “exactly lay out what it was that required the Court to pause,” Freeman said.

“If you want the Court to grant you some sort of special relief you need to explain why you need that relief [instead of making] vague references to dealmaking,” the lawyer said.

“I didn’t see in his brief a good reason to expect a stay.”

Arguments on Both Sides

Attorney Mike O’Neill of the Landmark Legal Foundation said the Supreme Court is likely to apply the strict scrutiny standard in the case, which means that the federal government has to meet “a very high burden.”

O’Neill told The Epoch Times that this means that the government has to show that the Protecting Americans from Foreign Adversary Controlled Applications Act was “narrowly tailored” to deal with the problem it identifies.

The government alleges that China is stockpiling data from U.S. users and secretly manipulating content to influence the American public, he said.

The court will look at whether that interest is compelling enough to justify “subverting First Amendment rights” under the strict scrutiny standard.

Describing himself as a “First Amendment purist,” O’Neill said he is inclined to believe that “America is best served by having a robust exchange of ideas,” and this justifies strict scrutiny in the case.

However, he did acknowledge that Congress made national security findings that are “under seal” and have been kept from the public on national security grounds.

If the court agrees that there are legitimate national security concerns about China capturing and using TikTok data about Americans that counts as a compelling interest, the justices will probably uphold the law, O’Neill said.

Attorney Curt Levey, president of the Committee for Justice, said it would have made more sense for the Supreme Court to temporarily enjoin the law for a few months and take more time to carefully consider the case instead of rushing.

The case is “a tough one,” and there are “arguments on both sides,” he told The Epoch Times.

“The reason for this bill was a fear that the Chinese were going to use content moderation to influence American politics and that goes to the core of the First Amendment,” Levey said.

Whether the law is unconstitutional is a “very close call,” but even if the Chinese want to influence U.S. public opinion, “I don’t accept that there’s a First Amendment exception for that,” he said.

Levey said other countries try to influence U.S. public opinion, and “we do everything possible to influence public opinion abroad. That’s the whole point of things like Radio Free Europe.”

The government counters that China is engaged in “covert” manipulation of content, but “who knows to what extent” the United States discloses its own attempts to influence foreign opinion, he said.

“But in any case, content moderation is, by its nature, covert. [Social media platforms] don’t give you a long explanation of why they took down your post,” Levey said.

He said there is not enough debate in the United States about how much of a threat foreign influence poses to the country.

“All you have to do is say Russia or China are trying to influence American public opinion and people are like, ‘Oh my God, that’s a threat,’” Levey said.

“Should we feel threatened by that? [And if so, is that threat] a compelling interest that can overcome strict scrutiny, which is the highest form of scrutiny applied to a law.”

Around the 2016 election, when Russia was accused of trying to influence U.S. elections, almost nobody said that “people in Russia are entitled to influence our public opinion, just as Americans are entitled to influence Russian public opinion,” Levey said.