SCOTUS sets January arguments in First Amendment challenge to law that could ban TikTok

Quick review, with holiday season briefing, set for a law the federal government says is needed for national security but that critics say runs roughshod over speech rights.

On Wednesday morning, the U.S. Supreme Court announced that it will be holding oral arguments on January 10 — 23 days from now — over whether a law that targets TikTok explicitly and could effectively ban the popular application in America as soon as January 19 violates the First Amendment.

Congress passed the law, Protecting Americans from Foreign Adversary Controlled Applications Act, earlier this year, and the Biden administration is defending it in court as necessary for national security.

The Supreme Court order granting review in the case came just two days after TikTok and a group of TikTok creators each asked the justices to block the enforcement of the law against TikTok while the court considered reviewing the case.

The requests from TikTok and the creators followed a December 6 ruling from the U.S. Court of Appeals for the D.C. Circuit refusing to block the law, rejecting all of the challengers’ constitutional arguments against the law. In addition to First Amendment claims, the parties also raised Equal Protection, Bill of Attainder, and Takings Clause claims.

On December 13, D.C. Circuit denied a request to block the law while the parties sought Supreme Court review — setting up the December 16 filings at the Supreme Court and now an oral argument 10 days into the new year.

Nine days later, the law is set to apply to TikTok, so expect quick action from the court if they’re inclined to side with TikTok. And then, Donald Trump becomes president the day after that, so everything could quickly change again once that happens.¹

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The law and challenge

Under the law addressing “foreign adversary controlled applications,“ TikTok and ByteDance — which is headquartered in China and is the parent company of TikTok — will face certain prohibitions on January 19 if the company does not sufficiently divest of TikTok or its U.S. operations.

Here, TikTok says a divesture is not going to happen on this timeline, and the federal government says that TikTok’s efforts to separate its U.S. operations are insufficient.

If there is not sufficient divestiture, the prohibitions go into effect on January 19. As the D.C. Circuit noted, “The prohibitions do not directly proscribe conduct by an entity that owns a foreign adversary controlled application. Instead, they bar others from providing critical support in the United States for such an application.” But, the indirect prohibitions are harsh — barring its inclusion in any “marketplace (including an online mobile application store)“ and barring internet hosting services “to enable the distribution, maintenance, or updating“ of the app for users in the U.S. — meaning the effects are, ultimately, a ban on the app in question.

The D.C. Circuit’s ruling was the first ruling in the case, because the law required any challenge to begin exclusively in the D.C. Circuit. Although the three-judge panel unanimously upheld the law, the judges split on their reasoning.

Judge Douglas Ginsburg, a Reagan appointee who took senior status in 2011, wrote the majority opinion for himself and Judge Neomi Rao, a Trump appointee. In it, he credited the administration’s national security concerns as providing a compelling interest for the law under strict scrutiny — which he assumed applied here — and cited the divestiture provision as evidence the law is narrowly tailored to those concerns. As to the TikTok-specific provision, the court concluded, “Congress’s decision separately and more immediately to address TikTok, the Executive’s ‘most pressing’ cause for concern, was permissible.”

The third judge on the panel, Chief Judge Sri Srinivasan, an Obama appointee, also would have upheld the law, but he would not have considered whether the law could meet strict scrutiny, finding it was appropriately reviewed under intermediate scrutiny. This was so in part, he wrote, because “a foreign nation rather than a domestic speaker” is “centrally addressed.” Under that lesser test, he found it would “meet[] that standard.

The ruling prompted a strong outcry from many First Amendment defenders, with two prominent advocates, Jameel Jaffer and Genevieve Lakier, urging Supreme Court review just days after the ruling, arguing that the D.C. Circuit “failed to interrogate the government’s claim that the ban is intended to prevent the Chinese government’s covert manipulation of American users — rather than to suppress views that members of Congress dislike.”

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The Supreme Court case

In the requests for an injunction pending appeal, both TikTok and the creators also argued that the justices could treat their filings as petitions for certiorari, a full appeal.

On Wednesday, the court did that — deferring a ruling on the request to block the law during review, granting certiorari, and setting a lengthy two hours for oral argument.

The court made clear those arguments in the case will be streamlined to the First Amendment question and set an intense briefing schedule over the holidays. Briefs are due in just nine days, as are any amicus briefs, with the reply briefs due from the parties a week later.

Then, as noted above, the oral arguments are set for January 10, a week after the reply briefs are due.

Although arguments have regularly gone long in the time since the justices returned to in-person arguments following the remote arguments utilized during the height of the Covid-19 pandemic, that generally has related to the new format employed since then. The time allotted for an argument denotes the initial argument time — split in half — that each side of the “v.” will have. A normal, one-hour argument means that each side get 30 minutes. However, since returning to in-person arguments, the justices have added a round of “seriatim” questioning — going one by one, starting with Chief Justice John Roberts and then going from most-senior to most-junior justice — that sometimes doubles an advocate’s time at the lectern.

Here, the court already doubled the time, meaning that each side will get an hour before even getting to the seriatim questioning.

In short, it could be a long day.

And, in the meantime, it will be a long holiday season for the lawyers working on the case.

Law Dork will have more coverage of the case — including a report on the legal arguments advanced in the briefs when they are filed on December 27, coverage from the Supreme Court of the oral arguments on January 10, and a full report whenever a decision comes down — so subscribe now.

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A final note

Just like one of the most important elements of news judgment is the choice of what stories to cover at all, one of the Supreme Court’s key powers is deciding what cases to take.

On Dec. 11, 2023, Special Counsel Jack Smith — detailing the importance of the immunity questions raised by Donald Trump in the prosecution against him for his role seeking to overturn the 2020 election — asked the justices to skip over the D.C. Circuit and take up Trump’s appeal of a district court order rejecting his immunity claim immediately.

On December 22, 2023, the Supreme Court rejected that request with no explanation.

It didn’t grant review in the case for another two months, well into this year and after the D.C. Circuit heard and ruled in the case. Even then, the justices didn’t hear oral arguments until April 25 — nearly two months after granting review.

Its decision, largely siding with Trump in a ruling finding an expansive presidential immunity, didn’t come until July 1.

On Wednesday, the Supreme Court granted merits review in the TikTok case just two days after the company and creators sought an injunction pending appeal — and before the government even filed its response.

That is not, to be clear, a challenge to the rapid action this week.

It is, however, a damning indictment of the court’s inaction and slow-walking of the Trump immunity case.

1. This paragraph was added after initial publication.