Dem
47
GOP
53
On Friday, the Supreme Court affirmed the D.C. Circuit Court of Appeals' denial of the request from TikTok and ByteDance for a preliminary injunction of the Protecting Americans from Foreign Adversary Controlled Applications Act. This law, which was passed with bipartisan support (albeit as a rider to a defense appropriations bill), requires ByteDance to sell TikTok by a certain date or else the feds will shut it down. It prohibits entities from providing distribution and maintenance services to "foreign adversary controlled applications." Applications run by ByteDance and TikTok are expressly named in the law as "foreign adversary controlled applications". The law also sets out more general criteria for this designation, such as an application that is "determined by the President to present a significant threat to the national security of the United States." Such an application can escape this designation if it undergoes a divestiture such that it is no longer controlled by a foreign adversary. The Act's prohibitions take effect 270 days after the designation. Since TikTok and ByteDance are specifically named in the law, 270 days after the law's enactment is January 19, 2025. Importantly, the president can grant a one-time 90-day extension of the Act's prohibitions (more on that below).
ByteDance sued and claimed the law violated the company's free speech rights. It asked SCOTUS to enjoin the law while the case proceeded on the merits. In a unanimous decision, the Court denied the petition. First, the Court found that the law, while not directly regulating speech, effectively bans the application and thus "burdens users' expressive activity." The Court then found that even though the law impacts speech, it is not targeting particular content or point of view. Therefore, it is content-neutral and is subject to intermediate scrutiny (as opposed to strict scrutiny) and will be upheld if it "advances important governmental interests unrelated to the suppression of speech and does not burden substantially more speech than necessary to further those interests."
Using that standard, the Court denied the injunction. It found that the government's interest in "preventing China from collecting vast amounts of sensitive data from 170 million U.S. TikTok users" is an important interest unrelated to suppression of speech. And the conditional ban requiring divestiture is sufficiently narrowly tailored to further those interests. Throughout its opinion, the Court discusses the "latitude" the government has to "design regulatory solutions to content neutral interests" and the respect that must be afforded the government in the area of national security. The opinion is so normal and consistent with precedent that we considered checking our backyards for seed pods. At one point, the Court acknowledged they were dealing with a new technology and needed to keep their focus as narrow as possible so as not to "embarrass the future." How sweet, but someone should really tell them that ship has long sailed.
Justice Sonia Sotomayor penned a separate concurrence to say that she would have applied strict scrutiny (the highest scrutiny) but concurred in the holding because she believes the law survives that scrutiny as well. Justice Neil Gorsuch also offers a separate concurrence mostly to bloviate about various bees in his bonnet. His ultimate conclusion is... no different from the majority opinion.
One little Easter egg in this short opinion does raise some concerns. In rejecting the argument that Congress' motives were geared more toward specific content, which should subject the law to heightened scrutiny, the Court states, "We are especially wary of parsing Congress's motives on this record with regard to an Act passed with striking bipartisan support." This raises the question whether the Court can "parse Congress's motives" when a law is passed by only one party. They don't teach students about that rule of review in law school (probably because it isn't a thing).
Now that the fateful date of January 19 is upon us, the question is how will this law be enforced, if at all. Although the ban might be wise, it is not going to be popular, and neither political party particularly wants to take ownership. The outgoing Biden administration has taken the position that it does not have time to implement a ban, and beyond that, Senate Democrats are lobbying the White House to try to work out a compromise. "Let's take a breath, try to step back, buy some time, try to figure this out," said Sen. Ed Markey (D-MA), to give one example.
How about Donald Trump? After all, it was Trump's August 2020 executive order banning certain transactions by ByteDance that kicked this whole thing off in the first place. However, the President-elect is a bit less anti-ByteDance than he once was. In fact, TikTok CEO Shou Chew is going to be one of Trump's guests at the inauguration. And Trump said Saturday morning that he is likely to grant the 90-day extension allowed for by the law. The extension is only supposed to be given if a sale is being negotiated, and the additional time is needed to work out the details. There does not appear to be any movement toward a sale, but nobody knows more about bending and breaking the rules than Trump does.
If TikTok does go dark tomorrow, then it will likely be the doing of... TikTok. The company is threatening to suspend service to American users unless it has "necessary clarity and assurance" from the White House. This is an unsubtle attempt to put pressure on the politicians; the message is: "Do you really want a bunch of phone calls, e-mails, and letters from millions of TikTok users, many of whom also happen to be voters?"
In short, it's quite a soap opera right now. That said, the law is the law, and the law currently says: (1) there can only be one 90-day extension, and (2) ByteDance has to sell TikTok to American interests, or else shut down. So, whatever maneuvering and posturing might go on this weekend, and into next week, by May of this year, TikTok should be either an American business concern or should be out of business in the U.S. But will the Trump administration, and likely AG Pam Bondi enforce that, if push comes to shove? That's an excellent question. (L & Z)