On Wednesday morning, the Supreme Court issued an unusual order announcing that it would hold a hearing The case determines the fate of TikTok on a fast-tracked schedule.
known as litigation TikTok v. GarlandAsks if a Federal legislation potentially banning TikTok was signed into law by President Joe Biden in AprilViolates the First Amendment. The law would ban the short-form video app, owned by Chinese tech company ByteDance, in the United States unless ByteDance sells the platform to another owner before January 19. And so a ban may be imminent unless the Supreme Court intervenes.
According to the order of the Supreme Court, the hearing will be held TikTok vs Mala The case departs from the court’s normal procedure in several ways by narrowing the briefing schedule and the amount of time jurors have to consider after the briefing is complete.
The court order directed TikTok and the Justice Department, as well as other parties challenging the law, including several content creators who use the platform, to all file their briefs simultaneously on Dec. 27, two days after Christmas. The judges will hear oral arguments on January 10.
Perhaps the court is following this unusually fast schedule — typically, a case waits months for oral arguments before the justices, even after the court announces it will hear that case — because the justices want to issue their final decision before the ban takes effect on Jan. 19.
Although TikTok has raised several constitutional challenges against the law, which is known to protect Americans from foreign adversary controlled application laws, the Supreme Court’s review will focus on a single question: whether the law, which could shut down one of the world’s most popular online platforms. country, violates the First Amendment’s liberties clause.
tiktok National security concerns over the protection of free speech
Legislation targeting TikTok has passed both houses of Congress Extensive support from Both political parties. Supporters of the law justify such unusual restrictions on traditional free speech protections because they fear the Chinese government will use TikTok to collect information on Americans, or that they will use content displayed on TikTok to shape US opinion.
The question of how much control China can and can exercise over TikTok is hotly contested. TikTok’s parent company, ByteDance, based in Beijing. Like many Chinese companies, TikTok is legally required to host an in-house Communist Party committee made up of employees who are also party members.
The law at issue in the lawsuit prohibits Internet hosting services and other technology companies — including Apple and Google, whose app stores make TikTok available for download — from serving it.Foreign counterparty controlled applications” While other apps could potentially qualify as such apps, the law specifically states that TikTok, as well as any other app operated by ByteDance, is eligible. TikTok could potentially avoid the ban if it sells to another company that is not “controlled by a foreign counterparty.” is done but no sale seems imminent.
A federal appeals court upheld the law in early December, largely arguing that National security concerns trump free speech concerns. While the opinion includes a lot of detail about the sheer volume of data controlled by TikTok, it includes much less evidence than courts typically provide when upholding laws that impinge on free speech that the government’s stated interest in protecting national security justifies this particular law. .
The appeals court justified this approach by arguing that “Congress and the executive branch have made judgments about the national security threat posed by the TikTok platform.”Possessing considerable weight.’”
The lower court is correct that courts often defer to the other branches on matters of national security, and it cited Supreme Court precedent to establish that general proposition. But the degree of deference shown by the lower court in this case is unusual. All three appeals court judges hearing the case agreed that the TikTok ban should receive “higher scrutiny” from the judiciary because it threatens free speech. Laws that are subject to such scrutiny are presumptively unconstitutional, and the government bears the burden of proving that such laws can be justified.
As the Supreme Court has said Ashcroft v. ACLU (2004), when there is “substantial factual dispute” as to whether a statute’s burden of free speech can be justified by some other compelling national requirement, “the government must ‘bear the full constitutional burden of proof'”.
Which doesn’t mean the Justice Department can’t meet that burden in this case, if it can produce enough evidence that China would use TikTok to undermine US national security. But, according to existing precedent, the government must provide that evidence if it wants the law to survive.
In any case, we’ll likely know more about what kind of evidence the Justice Department plans to collect in defense of the law after it files its briefs on Dec. 27 — though it’s worth noting that the government could potentially file some of that information under seal. If they are required to release classified information in light of alleged national security concerns by the government.
For now, the only thing that’s certain about the case is that the judges are moving very quickly — and one way or another, TikTok’s future is likely resolved before the federal ban goes into effect in January. will be done
