The Universe of TikTok v. Garland in a Nutshell

Everything you want to know about the case boiled down into a few pages

1) Top line points:

• The Supreme Court will hear oral arguments on January 10 in TikTok’s appeal against a federal law requiring the app to cease U.S. operations unless its Chinese parent company, ByteDance, divests its U.S. arm by January 19.

• The expedited case, fast-tracked without initial input from the Biden administration, is at the epicenter of a clash between national security concerns and free speech protections. Congress passed the law, citing the threat posed by foreign-controlled apps, while TikTok argues the ban would silence a major platform for expression used by 170 million Americans.

• Previously upheld by the D.C. Circuit Court, the law was deemed a carefully targeted response to national security risks, but TikTok maintains it violates the First Amendment.

• Represented by former U.S. Solicitor General Noel Francisco, TikTok has urged the court to delay enforcement to allow the incoming Trump administration to weigh in.

• Both parties are required to submit briefs before January, reflecting the urgency and significance of the dispute.

What is covered below? The legislation in question, lower court opinions, the application for the injunction / petition for certiorari, amicus briefs filed in the case, and third party commentary

2) Summary of the Protecting Americans from Foreign Adversary Controlled Applications Act

a. Ban on Foreign-Controlled Apps: The Act prohibits the distribution, maintenance, or updating of applications controlled by foreign adversaries within the U.S., including services like hosting or app store access. Violations can result in significant civil penalties.

b. User Data Portability: Before the ban applies, users must be able to request and receive all their account-related data in a machine-readable format, including posts, photos, and videos.

c. Exceptions and Enforcement: Exemptions are provided for apps undergoing qualified divestitures or necessary compliance services. The Attorney General oversees enforcement, with civil penalties and legal actions against entities, not individual users.

3) DC Circuit Ginsburg majority:

a. Background: TikTok challenged the U.S. government's actions under a law requiring the potential divestiture of TikTok’s U.S. operations, arguing that it constituted a regulatory taking under the Fifth Amendment. The law, designed to address national security concerns due to TikTok's ties with China, provides a mechanism for TikTok to divest its U.S. operations. TikTok contended that divestiture was impossible because of Chinese export restrictions and that the government’s actions amounted to a complete deprivation of its economic value. The government argued that TikTok had alternative options for divestiture and was not deprived of all economically beneficial use of its property.

b. Decision: The Court examined TikTok’s claims under the two types of regulatory takings recognized by the Supreme Court: (1) physical invasions of property and (2) complete deprivation of economically beneficial use. The Court found that TikTok had not shown a complete economic deprivation, as it retained assets and could divest its U.S. business in various ways. The Court rejected TikTok’s arguments and upheld the law, concluding that the U.S. government had acted within its authority to protect national security. The Court denied TikTok’s petitions and gave the company until January 19, 2025, to comply with the divestiture requirement, effectively rejecting the claim of a regulatory taking.

4) Srinivasan Concurrence and Dissent in part:

a. Srinivasan concurs with the majority's conclusion that the divestment mandate regarding TikTok survives a First Amendment challenge, but also dissents emphasizing the significant First Amendment concerns at stake. While agreeing that the national security risks posed by potential Chinese government control of TikTok justify the divestment mandate, Srinivasan underscores the potential loss of a platform for free expression, social interaction, and income for over 170 million Americans. Srinivasan acknowledges that Congress's decision was based on substantial evidence and national security considerations, and while the First Amendment implications are serious, Srinivasan defers to Congress's judgment in this case.

b. Srinivasan also dissents describing the delicate balance between national security interests and the protection of free speech. While Srinivasan respects Congress's determination to divest TikTok from Chinese control, Srinivasan notes that the potential harm to American users, who rely on TikTok for various forms of expression and community, should not be overlooked. Ultimately, Srinivasan concurs with the majority but emphasizes that the First Amendment concerns are substantial and deserve careful consideration.

5) Application for an injunction / Petition for Cert

a. The application seeks a temporary injunction to prevent the enforcement of a new law, referred to as the Act, that would ban the operation of TikTok in the United States starting January 19, 2025. The Applicants, TikTok Inc. and ByteDance Ltd., argue that the Act would irreparably harm their business, users, and employees by depriving TikTok of its ability to operate, potentially causing a mass exodus of users, creators, and advertisers. They contend that the Act violates First Amendment rights and that even a temporary shutdown would result in substantial, non-recoverable economic harm, including a loss of revenue, damage to commercial relationships, and a diminished competitive position. Furthermore, they argue that the Act will harm TikTok’s reputation, impede recruitment and retention of talent, and hurt millions of American users.

b. The Applicants requested expedited consideration, emphasizing the urgency due to the Act's imminent enforcement just before the inauguration of a new president. They argue that delaying the law's implementation would allow the Court to review significant constitutional questions raised by the Act, which is critical in preserving the public interest in safeguarding free speech. Additionally, they assert that a temporary injunction would not materially harm the government, as there is no immediate, evidence-based national security threat justifying the Act’s abrupt implementation. Given the government's long-standing concerns without substantial evidence of harm, the Applicants contend that the status quo should be maintained until the Court has the opportunity to fully review the case.

c. Relevant cases cited in the Application

i. US v. Brown, 381 U.S. 437 (1965): Proposition Supported: The Application discusses how the Act's process is akin to "trial by legislature," which is contrasted with the traditional legal process in courts. This reference is used to argue against the legislative process being improperly used to regulate a matter of significant constitutional concern, namely First Amendment rights.

ii. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020): Proposition Supported: The Application argues that the loss of First Amendment freedoms for even a brief period of time constitutes irreparable harm. This case is cited for the principle that the loss of First Amendment rights is irreparable, particularly in the context of government restrictions like the one imposed by the Act.

iii. Reuters Ltd. v. United Press International, 903 F.2d 904 (2d Cir. 1990); Proposition Supported: The Application asserts that even a temporary shutdown of TikTok would have devastating effects on its business, including the loss of users and creators. This case is cited to support the argument that the loss of users and creators is an irreparable economic harm, especially when it leads to long-term consequences like migration to competing platforms.

iv. In re NTE Conn., LLC, 26 F.4th 980 (D.C. Cir. 2022); Proposition Supported: This case is used to underscore the irreparability of harm caused by the shutdown of TikTok, particularly in the economic and user-base areas. The citation here emphasizes that nonrecoverable economic harm is irreparable, even when there is no direct sovereign immunity issue.

v. Ohio v. EPA, 144 S. Ct. 2040 (2024); Proposition Supported: This case is cited to support the proposition that substantial economic harm is irreparable if it is "nonrecoverable," particularly in a context where sovereign immunity might prevent full compensation or recovery of damages. It bolsters the argument that TikTok's economic losses would be significant and unrecoverable.

vi. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021); Proposition Supported: The Application uses this case to argue that irreparable harm is caused by significant economic losses that cannot be fully recovered, which ties into the potential business impact TikTok would face due to the Act.

vii. Armour & Co. v. Freeman, 304 F.2d 404 (D.C. Cir. 1962); Proposition Supported: This case is cited to reinforce the argument that a temporary shutdown would damage TikTok's reputation. It supports the claim that reputation harm is a form of irreparable injury that cannot be fully restored after the fact.

viii. Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597 (9th Cir. 1991); Proposition Supported: The citation supports the argument that a temporary shutdown could disrupt TikTok’s ability to recruit and retain employees, particularly in the competitive tech market. It underlines how such disruptions could have long-term negative effects on TikTok’s operations.

6) Amici

a. FIRE Amicus Brief: FIRE is advocating for the Court to grant an emergency injunction to prevent the enforcement of an executive action that they argue could have significant negative effects on petitioners. The group emphasizes that the lower court's decision was incorrect and that the petitioners face irreparable harm without immediate relief. They stress the urgency of the matter, pointing to the long-term consequences that could arise from the action in question. FIRE supports its position by arguing that the balance of harms weighs in favor of granting the injunction, and that the petitioners are likely to succeed in their case, given the serious legal and constitutional issues at stake. They further argue that allowing the action to proceed without review could cause damage that would be difficult to undo, thus reinforcing the need for swift intervention by the Court.

b. ACLU et al.’s Brief: The ACLU argues that the government’s actions to restrict access to TikTok violate the First Amendment, as the government has failed to demonstrate a compelling interest or meet the strict scrutiny standard. They contend that the government’s concerns about content manipulation and data collection are speculative, lacking concrete evidence of national security harm. The group highlights that the government cannot justify broad restrictions on speech, such as a ban on TikTok, based on unfounded fears or conjectural risks. They also assert that less restrictive alternatives, such as requiring disclosure of manipulation risks, could address concerns without infringing on constitutional rights. Additionally, they emphasize the severe constitutional harm that would result from divestiture or banning TikTok, especially given the platform's vast user base of 170 million Americans. The ACLU challenges the government's reliance on national security justifications, arguing that national security concerns do not override the rigorous First Amendment protections, which must be applied even in cases involving national security threats. They call for greater judicial scrutiny, stressing that the government must provide concrete evidence of harm and explore alternatives before limiting free speech.

c. Senator McConnell’s Brief: Senator Mitch McConnell argues that TikTok’s request for an injunction against the Foreign Adversaries Act, which mandates TikTok's divesture from its Chinese parent company by January 2025, should be denied. McConnell asserts that TikTok, as a corporate agent of the Chinese Communist Party, does not deserve First Amendment protections, emphasizing that the government's regulation of TikTok is a matter of national security rather than free speech. He underscores that the law was carefully crafted with the compelling interest of protecting American data and preventing Chinese influence through algorithmic manipulation. Furthermore, McConnell criticizes TikTok's legal strategy as a dilatory tactic aimed at delaying the divesture until a potentially more sympathetic administration takes office. He stresses that this delay would undermine the legislative intent and public interest, reinforcing the need for timely enforcement of the law. McConnell compares TikTok’s strategy to attempts by convicted criminals to delay their execution based on changes in administration, urging the Court to reject such maneuvers and uphold the legislative timeline.

7) Third Party Commentary

a. Following the Supreme Court's announcement, Chairman John Moolenaar (R-MI) of the House Select Committee on the Chinese Communist Party released the below statement: “When the Supreme Court considers the merits of this case next month, I am confident it will join Congress, the Executive Branch, and the DC Circuit Court in making clear that foreign adversaries like the Chinese Communist Party do not have a constitutional right to weaponize social media applications against the American people. I look forward to the Supreme Court upholding our bipartisan law to protect our national security and am eager to help President Trump negotiate a deal that will lead to an American takeover of TikTok.”

b. Chemerinsky in LA Times: Chemerinsky wrote about how the December 6 decision by the U.S. Court of Appeals for the D.C. Circuit upheld a federal law requiring TikTok to stop operating in the U.S. by January 19 unless its Chinese owner, ByteDance, sells it to a non-Chinese company. He wrote that this unprecedented move threatens the free speech rights of 150 million Americans who use TikTok to share information and express themselves. The court minimized the First Amendment implications, focusing instead on national security concerns, including China's alleged data collection and content manipulation. Critics argue that the decision opens the door for government censorship based on disliking the message, and the law could have a chilling effect on free speech. While an appeal to the Supreme Court is likely, the case raises unprecedented questions about balancing national security and free speech, with many believing the D.C. Circuit’s decision failed to properly weigh these issues.

c. Thomas Berry for Cato: Berry argues that the D.C. Circuit's decision to uphold a law requiring TikTok to either divest from its Chinese parent company or cease operations in the U.S. relies too heavily on the government's national security claims without sufficient evidence. The court accepted the government's assertions about the risks posed by TikTok, such as data collection and potential content manipulation by the Chinese government, despite a lack of concrete proof. The article critiques the court's deferential approach, which allowed the government’s broad assertions to justify the law, potentially undermining First Amendment protections. It argues that the Supreme Court should demand more detailed proof and a more rigorous examination of the government's claims before allowing such an unprecedented action that could severely restrict free speech.

d. Center for Growth and Opportunity: The CGO’s main argument of the is that while TikTok is often viewed with suspicion due to its connections with the Chinese government, particularly over concerns about data privacy and potential influence campaigns, a complete ban on the app may not be the most effective or prudent response. The commentary argues that U.S. policymakers should first clearly define the specific harms associated with TikTok, ensuring that any action taken is backed by solid evidence rather than speculation. Rather than opting for a blanket ban, the piece suggests that enhanced oversight and regulatory frameworks, such as audits and compliance checks, could be a more balanced approach. TikTok’s existing measures, like Project Texas, which relocated U.S. user data to secure servers and implemented content moderation in the U.S., are presented as examples of actions that could alleviate security concerns without resorting to drastic measures. Additionally, the article highlights the potential negative consequences of banning apps like TikTok, such as diplomatic tensions and economic losses, and stresses the importance of exploring alternatives that safeguard privacy and promote healthy competition. Ultimately, the argument is that the U.S. should pursue a more measured, evidence-driven strategy, addressing specific risks while avoiding hasty decisions that could set troubling precedents for regulating foreign technology companies.

If you enjoy this material please subscribe and consider a paid subscription to get access to additional material.