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TikTok, Inc. v. Garland

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TikTok v. Garland
Supreme Court of the United States
Full case nameTikTok, Inc. and ByteDance Ltd. v. Merrick B. Garland, Attorney General
Docket nos.24-656
24-657
Questions presented
Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.
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TikTok, Inc. v. Garland is a lawsuit brought by social media company TikTok against the United States government. Chinese internet technology company ByteDance Ltd. and its subsidiary TikTok, Inc. claim that the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) violates the Free Speech Clause of the First Amendment, the Bill of Attainder Clause of Article One, Section Nine, and the Due Process Clause and Takings Clause of the Fifth Amendment.[1][2][3] The law bans or requires divestment of social media apps meeting specified criteria that are owned by foreign corporations from, or by corporations owned by foreign nationals from, countries designated as U.S. foreign adversaries and that have been determined by the President to present a significant national security threat, and explicitly defines TikTok and any application operated by a ByteDance subsidiary as a "foreign adversary controlled application" under the law.[4]

On December 6, 2024, a panel of judges on the U.S. District of Columbia Circuit Court of Appeals unanimously rejected the company's claims about the constitutionality of the law and upheld it.[5][6][7] After the DC Circuit Court of Appeals panel rejected the company's request for an injunction on December 13 against the law's ban until a full review is conducted by the U.S. Supreme Court,[8][9] TikTok appealed the injunction decision to the Supreme Court on December 16.[10][11] On December 18, the Supreme Court announced that it would hear the First Amendment claims for the case and scheduled oral arguments for January 10.[12] It was consolidated for consideration with Firebaugh v. Garland, a lawsuit filed by TikTok content creators against the law.[13][14]

Background

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Main article: Protecting Americans from Foreign Adversary Controlled Applications Act
Further information: Donald Trump–TikTok controversy and Restrictions on TikTok in the United States

President Joe Biden signed PAFACA into law on April 24, 2024, codified as 15 U.S.C. § 9901.[15] It potentially bans apps made by any "covered company controlled by a foreign adversary and determined by the President to present a significant threat to the national security of the United States" unless exempted through qualified divestment.[15] The law gives TikTok's Chinese parent company, ByteDance, 270 days to sell TikTok. If ByteDance fails to do so, TikTok will face a ban from U.S. app stores and internet hosting services, limiting new downloads and access to its content. The deadline for the sale is January 19, 2025, but Biden can extend it by another 90 days if progress is made, potentially giving TikTok up to a year before a ban is enforced.[16]

Lawsuit

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On May 7, 2024, TikTok and ByteDance filed a lawsuit against U.S. Attorney General Merrick Garland in the Court of Appeals for the District of Columbia Circuit, challenging the legislation primarily on First Amendment grounds, alleging that the forced divestiture or ban of the platform would violate the free speech rights of the company and its users. The company accused the U.S. government of operating on "hypothetical" national security concerns, contending that it has not outlined any credible security threat posed by the platform in an adequate manner, and has not explained why TikTok "should be excluded from evaluation under the standards Congress concurrently imposed on every other platform."[17][18][19] The lawsuit also alleged that the Chinese government would not permit ByteDance to include the algorithm that has been the "key to the success of TikTok in the United States."[20]

Proceedings

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DC Circuit Court of Appeals

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In the lawsuit, TikTok requested a declaratory judgment to prevent the PAFACA from being enforced.[21] The Court of Appeals expedited the case, setting oral arguments for September 2024,[22] and a decision by December 2024.[23] In June 2024, TikTok presented briefs to the court that laid out why the company believes the ban to be unconstitutional under the First Amendment.[24] TikTok argued any divestiture or separation would take years and the law runs afoul of Americans' free speech rights.[24] The brief included a 90-page proposal about plans by TikTok to address American national security concerns.[25] The U.S. Department of Justice (DOJ) responded the following month, in which it asked the court to reject TikTok's legal challenge.[26] The DoJ argued the law is aimed at addressing national security concerns, not speech, and is aimed at China's ability to exploit TikTok to access Americans’ sensitive personal information.[26] The DOJ alleged that ByteDance employees in China obtained sensitive information on U.S. users, such as views on abortion, religion, and gun control, from overseas TikTok employees through Lark.[27] In August and September, 2024, DOJ filed classified documents with the court to outline additional security concerns regarding ByteDance's ownership of TikTok.[26][28]

Oral arguments were held on September 16, 2024.[28] On December 6, 2024, the Court of Appeals rejected TikTok's constitutional arguments and found that the law does not "contravene the First Amendment to the Constitution of the United States," nor does it "violate the Fifth Amendment guarantee of equal protection of the laws."[29] "The First Amendment exists to protect free speech in the United States," Judge Douglas H. Ginsburg wrote in the court's majority opinion. "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."[30] While the majority opinion concluded that the law triggered heightened scrutiny, it did not decide whether strict scrutiny or intermediate scrutiny should apply but concluded that the law satisfied the strict scrutiny standard, while the concurring opinion in the case filed by Chief Judge Sri Srinivasan concluded that the law only needed to satisfy intermediate scrutiny and that the law satisfied the lower standard.[31][32][33][34]

However, because the government referenced content on TikTok in its justification for the law,[32][35][36] the majority opinion concluded that the law could still trigger strict scrutiny.[31] The government cited two national security concerns as justifications for the law: "(1) to counter the PRC's efforts to collect great quantities of data about tens of millions of Americans; and (2) to limit the PRC's ability to manipulate content covertly on the TikTok platform".[37] The majority opinion concluded that these justifications were compelling government interests, and deferred to the government's evaluations of factual circumstances and predictions that TikTok would likely comply with PRC requests to manipulate content on the platform.[37] After concluding that the law was facially content-neutral, the majority opinion concluded that any new owner of TikTok "could circulate the same mix of content as before without running afoul of the [PAFACAA]", and that the government's concern was about "covert content manipulation" due to its control by a foreign adversary country rather than "content suppression"–which was how the company had characterized the government's position.[37][35]

The majority opinion concluded that the TikTok-specific provisions of the law were narrowly tailored to achieving the government's national security concerns,[35] and that it would be inappropriate for the court to "reject the Government's risk assessment and override its ultimate judgment" that a national security agreement that the company proposed to the government was less effective than the law's ban-or-divestment requirement.[37][4] The concurring opinion also concluded that the law did not violate the First Amendment, but asserted that the law only needed to satisfy intermediate scrutiny due to its content-neutrality and due to the history of restrictions on foreign control of broadcast media in the United States.[37][38][39][34] With respect to TikTok's equal protection claims under the Due Process Clause, the DC Circuit concluded that the company's claims "boil[ed] down to pointing out that TikTok alone is singled out by name in the [PAFACAA]" but that the differential treatment was justified by the "TikTok-specific national security harms identified and substantiated by the Government."[40][38][41]

Following the Supreme Court's ruling in Lingle v. Chevron U.S.A. Inc. (2005),[42] the DC Circuit rejected TikTok's assertion that the PAFACAA constituted a per se regulatory taking under the Takings Clause because TikTok can pursue a qualified divestment under the law and thus would not be deprived of all economic use of TikTok,[43] while the DC Circuit also concluded that the difficulties related to a divestment asserted by the company are instead caused by PRC export regulations rather than the PAFACAA.[44][45] Following the framework established in Nixon v. General Services Administration (1977),[46][47] the DC Circuit also concluded that the PAFACAA did not qualify as a bill of attainder because while the court concluded that the law applies with specificity, the court also concluded that it does not constitute a legislative punishment because the law's divestment requirement is "a sale, not a confiscation", is more analogous to a line of business restriction rather than an employment ban, serves a non-punitive and preventive national security purpose, and that "TikTok [did] not come close to satisfying [the] requirement" of demonstrating that the legislative record shows a congressional intent to punish by passing the law.[48]

On December 9, TikTok and ByteDance filed a motion for an injunction in the case to allow the app to continue operating until the U.S. Supreme Court decides whether to hear an appeal of the DC Circuit Court of Appeals panel ruling.[8] The appellate court rejected the motion on December 13.[9] On the same day, the House Select Committee on the Chinese Communist Party sent letters in reference to the December 6 ruling to the chief executive officers of Apple Inc. and Alphabet Inc. to instruct the companies to be prepared to comply with the law by the January 19 deadline.[49]

Supreme Court

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On December 16, TikTok appealed the injunction decision to the Supreme Court.[10][11] On December 18, the Supreme Court issued a writ of certiorari to hear the case and scheduled oral arguments for January 10, 2025.[13][14] The court limited the scope of its review to the legal issue of PAFACA's constitutionality under the Free Speech Clause of the First Amendment.[50] One "sign of the significance of the issue" was that the court moved with "extraordinary speed".[50] The court took only two days to respond to TikTok's application, did not follow its customary practice of waiting for the government to respond, and immediately set oral argument for a special hearing (normally, oral argument is set only after the parties have filed their briefing on the merits of an appeal).[50]

See also

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References

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  1. ^ CRS 2024b, p. 1.
  2. ^ CRS 2024c, pp. 14–15.
  3. ^ CRS 2024d, p. 1.
  4. ^ a b CRS 2024b, pp. 1–2.
  5. ^ Maheshwari, Sapna (December 6, 2024). "TikTok Loses Bid to Overturn Law Forcing a Ban or Sale". The New York Times. Archived from the original on December 6, 2024. Retrieved December 6, 2024.
  6. ^ Hadero, Haleluya (December 6, 2024). "Federal appeals court upholds law requiring sale or ban of TikTok in the US". Associated Press. Archived from the original on December 7, 2024. Retrieved December 6, 2024.
  7. ^ Vanian, Jonathan; Mangan, Dan (December 6, 2024). "Appeals court upholds law ordering China-based ByteDance to sell TikTok or face U.S. ban". CNBC. Archived from the original on December 6, 2024. Retrieved December 6, 2024.
  8. ^ a b Mangan, Dan (December 9, 2024). "TikTok says ban would cost U.S. small businesses, creators $1.3 billion in first month". CNBC. Archived from the original on December 9, 2024. Retrieved December 9, 2024.
  9. ^ a b Haleluya, Hadero (2024-12-13). "Court denies TikTok's request to halt enforcement of potential US ban until Supreme Court review". Associated Press. Archived from the original on 2024-12-14. Retrieved 2024-12-14.
  10. ^ a b Sherman, Mark (2024-12-16). "TikTok asks the Supreme Court for an emergency order to block a US ban unless it's sold". Associated Press. Retrieved 2024-12-16.
  11. ^ a b Mangan, Dan (December 16, 2024). "Trump meets with TikTok CEO as company asks Supreme Court to block ban on app". CNBC. Archived from the original on December 16, 2024. Retrieved December 17, 2024.
  12. ^ CRS 2024d, pp. 5–6.
  13. ^ a b Sherman, Mark (December 18, 2024). "Supreme Court will hear arguments over the law that could ban TikTok in the US if it's not sold". Associated Press. Retrieved December 18, 2024.
  14. ^ a b Mangan, Dan (December 18, 2024). "U.S. Supreme Court agrees to hear challenge to TikTok ban". CNBC. Retrieved December 18, 2024.
  15. ^ a b "15 USC 9901: Prohibition on transfer of personally identifiable sensitive data of United States individuals to foreign adversaries". Office of the Law Revision Counsel. Retrieved 2024-10-26.
  16. ^ Fung, Brian (April 24, 2024). "Biden just signed a potential TikTok ban into law. Here's what happens next". CNN. Retrieved October 26, 2024.
  17. ^ Scott, Rachel; Pereira, Ivan (May 7, 2024). "TikTok sues federal government over potential US ban". ABC News. Archived from the original on July 28, 2024. Retrieved July 28, 2024.
  18. ^ Shepardson, David (May 7, 2024). "TikTok, ByteDance sue to block US law seeking sale or ban of app". Reuters.
  19. ^ "Read TikTok's legal challenge". The New York Times. 2024-05-07. ISSN 0362-4331. Archived from the original on 2024-07-29. Retrieved 2024-05-07.
  20. ^ "TikTok sues US to block law that could ban the social media platform". Associated Press. 2024-05-07. Archived from the original on 2024-05-07. Retrieved 2024-05-08.
  21. ^ Gershman, Jacob; Bobrowsky, Meghan (May 7, 2024). "TikTok Sues to Block U.S. Ban". The Wall Street Journal. Archived from the original on July 28, 2024. Retrieved May 28, 2024.
  22. ^ Shepardson, David (May 28, 2024). "US court to hear challenges to potential TikTok ban in September". Reuters. Archived from the original on May 28, 2024. Retrieved May 28, 2024.
  23. ^ del Valle, Gaby; Feiner, Lauren (September 14, 2024). "TikTok is about to get its day in court". The Verge. Archived from the original on September 14, 2024. Retrieved September 15, 2024.
  24. ^ a b Shepardson, David (June 20, 2024). "TikTok says US ban is inevitable without a court order blocking law". Reuters. Retrieved September 15, 2024.
  25. ^ Maheshwari, Sapna (June 20, 2024). "TikTok Lays Out Past Efforts to Address U.S. Concerns". The New York Times. Retrieved September 15, 2024.
  26. ^ a b c "TikTok's appeal should be thrown out, US justice department tells court". The Guardian. 2024-07-27. ISSN 0261-3077. Archived from the original on 2024-07-28. Retrieved 2024-07-28.
  27. ^ "Justice Department says TikTok collected US user views on issues like abortion and gun control". Associated Press. 2024-07-27. Archived from the original on 2024-07-27. Retrieved 2024-07-28.
  28. ^ a b "TikTok Inc. v. Merrick Garland, 24-1113". CourtListener. Archived from the original on 2024-10-09. Retrieved 2024-10-26.
  29. ^ Duffy, Clare; Fung, Brian (December 6, 2024). "TikTok is one step closer to being banned in the US". CNN. Retrieved December 6, 2024.
  30. ^ Lee, Wendy; Chang, Andrea (December 6, 2024). "TikTok lost a major legal bid to avoid a U.S. ban. Now what?". The Los Angeles Times. Retrieved December 6, 2024.
  31. ^ a b CRS 2024d, pp. 2–3.
  32. ^ a b CRS 2024a, pp. 3–4.
  33. ^ CRS 2024b, pp. 5–6.
  34. ^ a b CRS 2024c, p. 22.
  35. ^ a b c CRS 2024b, p. 5.
  36. ^ CRS 2024c, pp. 21–22.
  37. ^ a b c d e CRS 2024d, p. 3.
  38. ^ a b CRS 2024a, p. 4.
  39. ^ CRS 2024b, p. 6.
  40. ^ CRS 2024d, pp. 3–4.
  41. ^ CRS 2024c, pp. 25–26.
  42. ^ CRS 2024c, pp. 24–25.
  43. ^ CRS 2024a, pp. 4–5.
  44. ^ CRS 2024d, pp. 4–5.
  45. ^ CRS 2024c, pp. 4–6.
  46. ^ CRS 2024b, p. 4.
  47. ^ CRS 2024c, pp. 23–24.
  48. ^ CRS 2024d, p. 4.
  49. ^ Vanian, Jonathan (December 13, 2024). "Apple and Google instructed by House committee to prepare to dump TikTok next month". CNBC. Retrieved December 17, 2024.
  50. ^ a b c Marimow, Ann E.; Dou, Eva (December 18, 2024). "Supreme Court to hear challenge to banning TikTok in U.S.". The Washington Post. Archived from the original on 19 December 2024. Retrieved 19 December 2024.

Works cited

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