The Supreme Court issued an unusual order Wednesday morning, announcing it would fast-track a case that will determine TikTok's fate.
incident known as TikTok v. Garlandasks whether a federal law signed by President Joe Biden in April that could ban TikTok violates the First Amendment. The law would ban a short-form video app owned by Chinese tech company ByteDance in the United States unless ByteDance sells it to another owner by January 19. The law was upheld by a lower federal court earlier this month. As such, a ban could be imminent unless the Supreme Court intervenes.
Supreme Court order announcing hearing TikTok v. Garland It departs from the court's normal procedure in several ways, reducing both the case's argument schedule and the amount of time the justices have to consider the case after arguments conclude.
The court's order was issued to TikTok, the Department of Justice, and other parties challenging the law, including many content creators who use the platform, all of whom filed briefs simultaneously on Dec. 27, two days after Christmas. I am instructed to do so. The justices will hold oral arguments on January 10th.
It is likely that the court will follow this unusually fast schedule. Cases typically wait several months for oral arguments before a judge, even after the court announces it will hear the case. That's because a judge wants to make a final decision before imposing a ban. It goes into effect on January 19th.
TikTok has raised several constitutional challenges to the law, known as the Protecting Americans from Regulatory Applications of Foreign Adversaries Act, but the Supreme Court's review found that the law It focuses on one question: whether one of the most popular online platforms could be shut down. This country violates the free speech clause of the First Amendment.
TikTok Conflicting national security concerns and free speech protections
Bills targeting TikTok passed both houses of Congress with broad support from both political parties. Supporters of the law fear that the Chinese government will use TikTok to collect data on Americans or manipulate the content displayed on TikTok to shape American public opinion. thus justifying such an extraordinary violation of traditional free speech protections.
The question of how much control China can and does exercise over TikTok is hotly contested. TikTok's parent company ByteDance is based in Beijing. Like many Chinese companies, it is legally required to host an internal committee made up of TikTok employees who are also party members.
The law at issue in the case allows internet hosting services and other technology companies (including Apple and Google, which make TikTok available for download in their app stores) to offer “applications controlled by foreign adversaries.” It is prohibited to do so. Although other apps may qualify as such, the law specifically states that TikTok and other applications operated by ByteDance are eligible. TikTok could escape this ban if it were sold to another company “not controlled by a foreign adversary,” but a sale does not appear to be imminent.
A federal appeals court upheld the law in early December, essentially arguing that national security concerns outweighed free speech concerns. The opinion includes many details about the vast amount of data TikTok manages, but it also goes against the national security protections courts typically provide when upholding laws that burden free speech. The government's stated interest contained far less evidence than warranted this particular law.
The appellate court justified this approach by arguing that “Congress and the executive branch's determinations regarding the national security threat posed by the TikTok platform are 'significant.'”
Lower courts are correct that courts often defer to other branches on matters of national security, citing Supreme Court precedent that established that general proposition. However, the degree of deference shown by the lower courts in this case is unusual. All three appeals court judges who heard the case agreed that TikTok's ban threatens free speech and should be subject to “heightened scrutiny” from the judiciary. Laws that are subject to such scrutiny are presumed to be unconstitutional, and the government bears the burden of proving that such laws can be justified.
As the Supreme Court stated: Ashcroft v. ACLU (2004) argue that when there is a “substantive factual dispute'' as to whether a law imposing free speech is justified by other compelling national needs, “the government must meet the “constitutional burden of proof''. “We need to take full responsibility for this,'' he said.
That doesn't mean the case can't overcome its burden if the Justice Department can produce sufficient evidence that China uses TikTok to undermine U.S. national security. However, existing precedent requires the government to provide evidence if it wants the law to remain in place.
In any case, we'll likely learn more about what evidence the Justice Department intends to gather in defense of the law after it files its brief on December 27th, but the government will It is worth noting that some of the information may be submitted under seal. Given the government's stated national security concerns, it seems possible, provided it requires disclosure of classified information.
For now, the only thing that seems certain about this case is that the judge is moving very quickly. And TikTok's future is likely to be resolved in any case by the time the federal ban goes into effect in January.
