The Supreme Court kicks off the new year with a hearing in an interesting and important case involving TikTok and the First Amendment. Here’s what you need to know as the justices hold oral arguments Friday morning in Washington.
The dispute in TikTok v. Garland stems from a federal law called the Protecting Americans from Foreign Adversary Controlled Applications Act. Passed on a bipartisan basis and signed into law by President Joe Biden in April 2024, the law would ban the popular social media app’s U.S. operations if its Chinese parent company (ByteDance) doesn’t sell it. The law is set to take effect Jan. 19, a day before Donald Trump’s presidential inauguration.
Who are the parties in the case?
On one side is TikTok and users of the platform, and on the other is the federal government.
The federal appeals court in Washington rejected a First Amendment challenge to the law, prompting TikTok and users of the app to petition the Supreme Court. They asked the justices to review the appeals court’s ruling against them and to stop the law from taking effect in the meantime. The justices didn’t halt the law, but they agreed to review the appeal on a speedy timeline ahead of the Jan. 19 divestment deadline.
What are the arguments?
Represented by former Trump solicitor general, Noel Francisco, TikTok and ByteDance argue in their brief that the justification for shutting down TikTok in the U.S. is “at war with the First Amendment.” They called it unlawful suppression of Americans’ speech and criticized the appeals court for upholding the law based on risks that China could exercise control over the platform, noting that the government conceded it has no evidence China has attempted such control.
Likewise in their separate brief, users wrote that “whatever challenges the possibility of a foreign adversary influencing the views of Americans might present, the array of permissible responses has never included censoring speech.”
The federal government, meanwhile, calls the law “entirely consistent” with the First Amendment. “It addresses 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,” Justice Department lawyers wrote, adding that the law “mitigates those threats not by imposing any restriction on speech, but instead by prohibiting a foreign adversary from controlling the platform.”
As often happens in high-stakes litigation, outside parties (called “amici” in legal parlance) have also weighed in. For example, Sen. Mitch McConnell, R-Ky., filed an amicus brief supporting the government, while the ACLU filed one supporting TikTok. Trump filed one, too. He said he doesn’t take a position on the merits of the issue. “Instead,” his brief explains, “he respectfully requests that the Court consider staying the Act’s deadline for divestment of January 19, 2025, while it considers the merits of this case, thus permitting President Trump’s incoming Administration the opportunity to pursue a political resolution of the questions at issue in the case.” Whether the justices are inclined to halt the law may become clearer during the hearing, which is set to start at 10 a.m. ET. on Friday. Whatever the court does, expect its next move to come quickly ahead of the looming deadline. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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