Facing ban next month, TikTok begs SCOTUS for help

TikTok has asked the Supreme Court to step in before it's forced to shut down the app in the US next month. In a petition requesting a temporary injunction, TikTok prompted the Supreme Court to block the ban and grant a review that TikTok believes will result in a verdict that the Protecting Americans from Foreign Adversary Controlled Applications Act is unconstitutional. And if the court cannot take up this review before TikTok's suggested January 6 deadline, the court should issue an administrative injunction delaying the ban until after Trump's inauguration, TikTok argued, appearing to seek any path to delay enforcement, even if only by a day. According to TikTok, it makes no sense to force the app to shut down on January 19 if, the very next day or soon thereafter, Trump will take office and pause or otherwise intervene with enforcement. "There is a reasonable possibility that the new Administration will pause enforcement of the Act or otherwise seek to mitigate its most severe potential consequences," TikTok argued. Not only did Trump promise to "save TikTok" on the campaign trail, TikTok noted, but his incoming national security adviser has said that the US "absolutely" needs "to allow the American people to have access to that app." Further, Trump's nominee for health secretary, Robert F. Kennedy, Jr., has individually challenged the ban in court, TikTok noted. (First Amendment experts have pointed out that Trump could plan to "save TikTok" simply by forcing a sale to a US buyer.) TikTok continues to argue that the law banning the app or forcing its sale to a US owner or ally is "a massive and unprecedented speech restriction." In its petition, TikTok reminded SCOTUS that the high court has "repeatedly" held that "disclosure"—such as warnings on TikTok that the US government "believes" that "there is a risk that [China] may coerce… TikTok to covertly manipulate the information received by… Americans"—is the least restrictive alternative that is "typically required to remedy misleading sources of speech." TikTok argued that Congress showed "no hint" that it ever seriously considered disclosure as a remedy instead of an outright ban. The social media company—which is "not offered in mainland China" and only "21 percent owned by one of its founders, Zhang Yiming, a Chinese national who lives in Singapore"—warned that the law could become a slippery slope that makes it easier for Congress to limit free speech more broadly.

TikTok: Ban is slippery slope to broad US censorship

According to TikTok, the government's defense of the ban to prevent China from wielding a "covert" influence over Americans is a farce invented by lawyers to cover up the true mission of censorship. If the lower court's verdict stands, TikTok alleged, "then Congress will have free rein to ban any American from speaking simply by identifying some risk that the speech is influenced by a foreign entity." TikTok doesn't want to post big disclaimers on the app warning of "covert" influence, claiming that the government relied on "secret evidence" to prove this influence occurs on TikTok. But if the Supreme Court agrees that the government needed to show more than "bare factual assertions" to back national security claims the lower court said justified any potential speech restrictions, then the court will also likely agree to reverse the lower court's decision, TikTok suggested. It will become much clearer by January 6 whether the January 19 ban will take effect, at which point TikTok would shut down, booting all US users from the app. TikTok urged the Supreme Court to agree it is in the public interest to delay the ban and review the constitutional claims to prevent any "extreme" harms to both TikTok and US users who depend on the app for news, community, and income. If SCOTUS doesn't intervene, TikTok said that the lower court’s "flawed legal rationales would open the door to upholding content-based speech bans in contexts far different than this one." "Fearmongering about national security cannot obscure the threat that the Act itself poses to all Americans," TikTok alleged, while suggesting that even Congress would agree that a "modest delay" in enforcing the law wouldn't pose any immediate risk to US national security. Congress is also aware that a sale would not be technically, commercially, or legally possible in the timeframe provided, TikTok said. A temporary injunction would prevent irreparable harms, TikTok said, including the irreparable harm courts have long held is caused by restricting speech of Americans for any amount of time. "An interim injunction is also appropriate because it will give the incoming Administration time to determine its position, as the President-elect and his advisors have voiced support for saving TikTok," TikTok argued. Ars could not immediately reach TikTok for comment.