The case before the Supreme Court of the United States deciding whether the Protecting Americans from Foreign Adversary Controlled Applications Act violates the First Amendment, as applied to TikTok, is set for oral argument on Friday, January 10, 2025.
The issues before the court will be to ascertain less-restrictive alternatives i.e., the next best measure for protecting Nation’s security.”The First Amendment does not tolerate such short-cuts, which imperil the free-speech rights not just of Petitioners and their 170 million American users, but the entire Nation,” TikTok said in their Supreme Court brief.
On March 5, 2024, a bill to ban TikTok was introduced in the House of Representatives. Six weeks later, the House packaged a nearly identical bill with must-pass foreign aid. Congress passed that omnibus bill, and the President signed the Act into law on April 24, 2024.
Starting on January 19, 2025, the Act will ban Petitioners from operating TikTok in the USA. However, the President may extend this deadline for 90 days if he determines certain conditions are met.
The Act exempts a “foreign adversary controlled application” if the company operating it executes a “qualified divestiture.” To qualify, the President must determine that the divestiture (i) results in the application “no longer being controlled by a foreign adversary,” and (ii) “precludes the establishment or maintenance of any operational relationship” between the application’s U.S. operations “and any formerly affiliated entities that are controlled by a foreign adversary.”
“The divestiture requirement is entirely consistent with the First Amendment and with our Nation’s tradition of barring or restricting foreign control of communications channels and other critical infrastructure,” said Elizabeth B. Prelogar, Solicitor General in her brief to the court.
Petitioners filed suit in the D.C. Circuit, which has exclusive original jurisdiction over challenges to the Act. Sec. 3(b). Petitioners raised claims under the First Amendment and other constitutional provisions.
The D.C. Circuit upheld the Act based on alleged “risks” that China could exercise control over the American platform by pressuring Petitioners’ foreign affiliates.
President-elect Donald J. Trump filed an amicus curiae through D. John Sauer. “In light of these interests—including, most importantly, his overarching responsibility for the United States’ national security and foreign policy— President Trump opposes banning TikTok in the United States at this juncture and seeks the ability to resolve the issues at hand through political means once he takes office.,” he said.
He seeks the statutory deadline to be stayed to allow his incoming Administration the opportunity to seek a negotiated resolution of these questions. “With the turnaround in President-elect Trump’s new approach that came in the form of Amicus Brief, inserting himself in issues even before taking office,” New York-based technology lawyer Mishi Choudhary said to ETLegalWorld.
The law and the associated issues highlight the tug-of-war between Free Speech principles and the importance of data, the ability to control the narrative.Mishi Choudhary, Technology Lawyer and Founder of SFLC.in
Covington & Burling LLP, Jones Day, and Mayer Brown LLP. filed the petition for TikTok Inc. and ByteDance Ltd.
