DOJ's SCOTUS defense of law that could ban TikTok faces challenge from Trump

The ban takes effect Jan. 19, but Trump asked SCOTUS to put the law on hold because he takes office Jan. 20. Also: Another trans care case is waiting in the wings.

On Friday afternoon, lawyers for TikTok and creators squared off against the federal government at the U.S. Supreme Court in a high-profile dispute over technology; foreign powers; the First Amendment; and now, apparently, Donald Trump.

The Protecting Americans from Foreign Adversary Controlled Applications Act, passed by Congress earlier this year, will effectively ban TikTok in the U.S. on January 19, as things stand now.

TikTok’s lawyers started their argument with a broad and aggressive stance. “Congress’s unprecedented attempt to single out [TikTok and ByteDance] and bar them from operating one of the Nation’s most significant speech venues is profoundly unconstitutional,” they wrote. In urging the court to put the law on hold and ultimately strike it down, lawyers for the group of TikTok creators wrote, ”Congress cannot suppress speech simply because it worries that the speech might affect Americans’ thinking regarding social or political issues.”

Defending the law, the Biden administration maintains that it “is entirely consistent with the First Amendment,” arguing that the law is mitigating “serious threats to national security posed by the Chinese government’s control of TikTok,“ not by “imposing any restriction on speech, but instead by prohibiting a foreign adversary from controlling the platform.“

More than two dozen briefs were filed in the case at the Supreme Court on Friday, including one that Trump filed as amicus curiae, or friend of the court, but that, in reality, acted as more of a government-in-waiting brief than is generally seen.

The law addresses “foreign adversary controlled applications generally“ and TikTok specifically, and will bar TikTok’s inclusion in any “marketplace (including an online mobile application store)“ and any internet hosting services “to enable the distribution, maintenance, or updating“ of the TikTok app for users in the U.S. beginning on January 19 unless ByteDance — the ultimate owner of TikTok — sufficiently divests of TikTok so that the federal government no longer believes it is controlled by a foreign adversary. TikTok says that can’t happen on this timeframe.

The U.S. Court of Appeals for the D.C. Circuit, which first heard the case under the law, ruled against TikTok and the creators on December 6, holding that, even under the toughest level of legal review (strict scrutiny) that laws or policies face under First Amendment challenges, the law nonetheless passed muster — in large part based on the government’s national security claims and the law’s divestiture possibility.

Following that ruling, TikTok and the creators asked the Supreme Court to put the law on hold as applied to TikTok — as in, don’t let the ban take effect on January 19 — and to consider taking up the case on appeal. On December 18, the court deferred ruling on the injunction request but took up the case on appeal and scheduled oral arguments for January 10, leading to Friday’s briefing.

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The briefing

The high court dispute features many of the leading Supreme Court lawyers in the nation, as well as D. John Sauer, the lawyer who argued Trump’s immunity case at the Supreme Court earlier this year and is Trump’s nominee to be his solicitor general in the forthcoming administration.

Trump’s brief is extremely unusual because it asks the court to take a brief from a private citizen and his private lawyer and, in effect, treat him as the incoming president — a conditional scenario. I don’t write that because I think he’s not going to be president come January 20, but because this is the law, and he’s not yet president.

Aside from the puffery (at best) throughout Sauer’s brief, the bottom-line ask is for the court to put the law on hold because Trump should be allowed to deal with it when he gets into office. While claiming not to take a position on the merits of the law, the brief nonetheless asks the Supreme Court to put a law passed by Congress and signed by the president on hold because Trump will be president soon.

After proclaiming that “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,“ Sauer wrote, “In light of the novelty and difficulty of this case, the Court should consider staying the statutory deadline to grant more breathing space to address these issues. … Such a stay would vitally grant President Trump the opportunity to pursue a political resolution that could obviate the Court’s need to decide these constitutionally significant questions.”

Noel Francisco, a Jones Day partner who was solicitor general in the first Trump administration, is representing TikTok. In their brief, the lawyers detail the broad contours of the case, writing, “Under heightened scrutiny, a speech restriction must be narrowly tailored to achieve an important interest. The strict form of this standard is demanding, and the Act does not come close to the only three laws this Court has held satisfy it.” Jeffrey Fisher, a partner at O’Melveny and Myers who is a prominent criminal defense lawyer at the Supreme Court, is representing the creators. One of the key points that they make is that “a forced divestiture would still impair [the creators]’ free-speech rights by depriving them of the ability to collaborate with the publisher of their choice and to reach the global audience with which they currently engage.”

Solicitor General Elizabeth Prelogar is representing the United States, in other words, the Biden administration’s defense of the law. The government asserts that the law doesn’t implicate TikTok or the creators’ First Amendment rights at all, noting, for example, that “TikTok users … have no First Amendment right to post content on a platform controlled by a foreign adversary.” Even if the law does implicate First Amendment rights, the government claims “it is a content-neutral regulation of conduct that only incidentally affects protected speech,“ and should only be subject to intermediate scrutiny. And, finally, even if it is subject to strict scrutiny, the government insists the law is still fine because “it is narrowly tailored to further the compelling national-security interests in preventing mass data collection and covert content-manipulation by a foreign adversary.”

As noted, more than 20 other briefs were filed on Friday as well.

Some First Amendment organizations, in a brief led by Jameel Jaffer, noted that “restricting access to foreign media to protect against purported foreign manipulation is a practice that has long been associated with repressive regimes.”

Several First Amendment and internet law professors argued in a brief that upholding the law “will disrupt core First Amendment principles that, generally, speech cannot be censored or banned based on its content and viewpoint. That principle is especially true where, as here, the Government targets a singular speaker because it might promote speech that a foreign power agrees with.”

In one of the few briefs supporting the government’s position, Zephyr Teachout and Joel Thayer argue that “of the more than a dozen social media platforms, only one has been repeatedly caught endangering the security of the United States: TikTok. TikTok’s promises to protect the privacy and security of American data have proven hollow.”

Reply briefs from the parties are due by 5 p.m. January 3, and arguments are scheduled for a week later, at 10 a.m. January 10.

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The path ahead: Trans rights

An effort to prepare a path for what comes next on the legal front after the U.S. Supreme Court decides U.S. v. Skrmetti — the case over a state ban on gender-affirming medical care for transgender minors — began to take shape this week.

The Indiana and national ACLU asked all 11 judges of the U.S. Court of Appeals for the Seventh Circuit to consider taking up several questions about Indiana’s broad ban. A three-judge panel rejected the challenge on a 2-1 vote, with a full opinion issued in November. Now, the ACLU wants the full court to take a second look, hearing the case en banc.

“The errors in the panel majority’s decision are profound and the result is devastating—the denial of necessary medical care to adolescents who were thriving with the now-banned medical care,” the ACLU lawyers wrote.

The case is different than Skrmetti for two reasons. First, the Supreme Court only took up one of the two legal issues in the challenges to the Tennessee ban — whether the ban violates equal protection guarantees. Second, Indiana’s ban is more broad than other bans, also barring a medical provider from “aiding or abetting another physician or practitioner” in providing such care.

In this week’s request, filed on Dec. 23, the ACLU lawyers, led by the Indiana ACLU’s Kenneth Faulk, but also joined by Chase Strangio, who argued Skrmetti at the Supreme Court, ask the court to review the equal protection arguments, pending the outcome in Skrmetti; review the due process question about parental rights that the Supreme Court dodged in Skrmetti; and to reconsider the panel’s decision on the First Amendment questions raised by the “aiding or abetting” provision.

The ACLU urges that “en banc review should be deferred until after the Supreme Court’s determination in United States v. Skrmetti,” a move that, if accepted by the Seventh Circuit, would essentially keep the case in a holding pattern for the coming months.

It also would mean that, if the Supreme Court rejects the challenge in Tennessee based on equal protection, the next case — raising other questions — would be waiting. If the Supreme Court accepts the Tennessee challengers’ main request to find that such bans classify based on sex and are subject to heightened scrutiny, the panel or full Seventh Circuit could then reconsider the Indiana case on those terms.