TikTok supporters at the Capitol in March. The app has become a cultural juggernaut that wields influence over nearly every facet of American life.
Credit...Kent Nishimura for The New York Times

TikTok Asks Supreme Court to Block Law Banning Its U.S. Operations

The company and its Chinese parent invoked the First Amendment in urging the justices to step in before a Jan. 19 deadline to sell or be shut down.

by · NY Times

TikTok asked the Supreme Court on Monday to temporarily block a law that would effectively ban it in the United States in a matter of weeks.

Saying that the law violates both its First Amendment rights and those of its 170 million American users, TikTok, which is controlled by a Chinese parent company, urged the justices to maintain the status quo while they decide whether to hear an appeal.

“Congress’s unprecedented attempt to single out applicants and bar them from operating one of the most significant speech platforms in this nation presents grave constitutional problems that this court likely will not allow to stand,” lawyers for TikTok wrote in their emergency application.

President Biden signed the law this spring after it was enacted with wide bipartisan support. Lawmakers said the app’s ownership represented a risk because the Chinese government’s oversight of private companies would allow it to retrieve sensitive information about Americans or to spread propaganda, though they have not publicly shared evidence that this has occurred. They have also noted that American platforms like Facebook and YouTube are banned in China, and that TikTok itself is not allowed in the country.

The fight will have far-reaching consequences. Since TikTok officially landed in the United States in 2018, it has become a cultural juggernaut that wields influence over nearly every facet of American life. Users, especially members of Gen Z and millennials, turn to it for news, entertainment and shopping, lured by its canny recommendation engine, which compiles short videos for users in a main feed. The app can quickly become addictive, as it gauges users’ interests, down to the number of seconds they spend on each video.

The court has shown keen interest in recent terms in the application of free speech principles to giant technology platforms, though it has stopped short of issuing definitive rulings. It has also wrestled with the application of the First Amendment to foreign speakers, ruling that they are generally without constitutional protection, at least for speech delivered abroad.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in early December rejected a challenge to the law brought by TikTok, its parent company ByteDance and several American users, ruling that the measure was justified by national security concerns. The judges differed somewhat in their reasoning but were united in accepting the government’s arguments that the Chinese government could exploit the site to gain access to users’ data and to spread covert disinformation.

“The First Amendment exists to protect free speech in the United States,” Judge Douglas H. Ginsburg wrote for the majority, joined by Judge Neomi Rao. “Here the government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary’s ability to gather data on people in the United States.”

In a concurring opinion, Chief Judge Sri Srinivasan acknowledged that under the law’s ban, “many Americans may lose access to an outlet for expression, a source of community and even a means of income.”

“Congress judged it necessary to assume that risk,” he wrote, “given the grave national security threats it perceived. And because the record reflects that Congress’s decision was considered, consistent with longstanding regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside.”

The law allows the site to keep operating in the United States if ByteDance sells it to a non-Chinese entity by Jan. 19, the day before President-elect Donald J. Trump’s inauguration. TikTok says that is not legally, technologically or financially feasible — in part because a sale would most likely be blocked by Beijing.

The law allows the president to extend the deadline for 90 days in limited circumstances, and Mr. Trump has repeatedly signaled support for the site. In a recent interview with NBC’s “Meet the Press,” though, he seemed to retreat from some of his previous comments.

Asked about his plans, Mr. Trump said he would “try and make it so that other companies don’t become an even bigger monopoly,” and he said the law gave the government “the right to ban it if you can prove that Chinese companies own it.”

Hours after TikTok asked the Supreme Court to intervene, Mr. Trump met with executives of the company at his Florida residence and private club, Mar-a-Lago, according to an official familiar with the matter.

ByteDance has said that more than half of the company is owned by global institutional investors and that the Chinese government does not have a direct or indirect ownership stake in TikTok or ByteDance.

In the brief filed on Monday, lawyers for the platform asked the justices to “give the incoming administration time to determine its position, as the president-elect and his advisers have voiced support for saving TikTok.”

If the court decides to deny the application, the brief said, it should do so by Jan. 6, saying the platform would need time “to coordinate with their service providers to perform the complex task of shutting down the TikTok platform only in the United States.”

The brief said that even a short shutdown would have devastating consequences.

“If the platform becomes unavailable on Jan. 19,” the brief said, “TikTok will lose its users and creators in the United States. Many current and would-be users and creators — both domestically and abroad — will migrate to competing platforms, and many will never return even if the ban is later lifted.”

While American technology platforms like Facebook, Instagram and YouTube have tried to come up with rival short-form video offerings in recent years, they have not been able to unseat TikTok. Users have been preparing for a potential shutdown of the app in recent weeks, asking fans to follow them on other platforms.

TikTok was banned in India in 2020 amid a conflict between the country and China, putting an overnight stop to the app in what was then its biggest market. The app had 200 million users in India at the time and is still banned in the country.

Although TikTok has publicly dismissed the idea of a sale, there have been declarations of interest this year from Steven T. Mnuchin, a Treasury secretary during Mr. Trump’s first term, and the billionaire Frank McCourt.

The law will penalize app store operators like Apple and Google for distributing and updating the TikTok app. Last week, a House committee sent letters to the chief executives of Apple and Google, warning them to comply with the law as of Jan. 19, assuming TikTok was not sold. Apple and Google declined to comment on their plans for the law.

Justice Amy Coney Barrett anticipated some of the questions raised by the case in a concurring opinion in June that was skeptical of state laws barring social media companies from making editorial judgments about which messages to allow.

“Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves,” she wrote. “But foreign persons and corporations located abroad do not.”

“So a social media platform’s foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny,” she wrote.

Zolan Kanno-Youngs contributed reporting from Palm Beach, Fla.

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