By Jacob Gershman
WASHINGTON -- The Supreme Court on Wednesday said it would decide the constitutionality of a law that would effectively ban TikTok in the U.S. if the social-media app doesn't shed its Chinese ownership.
With the ban set to take effect Jan. 19, the court scheduled fast-track oral arguments for Jan. 10 on whether the law violates the First Amendment.
The justices' move, which comes two days after TikTok and a group of content creators sought their intervention, breathes new life into the challengers' legal prospects. The court was under no obligation to hear the case. Earlier this month, an appeals court upheld the ban, concluding that the government had a valid and lawful basis for taking action.
Congress enacted the ban earlier this year, with bipartisan support, in response to concerns that TikTok was a threat to national security. Lawmakers received classified briefings in which intelligence officials warned that China could use the app -- one of the most widely used social-media apps and a popular news source -- to spread Chinese propaganda and surveil Americans.
The law doesn't make it illegal to use TikTok, but the ban could quickly make the app inoperable. It prohibits mobile app stores, such as Google's and Apple's, from letting users download or update TikTok, and bars internet hosting services from supporting the app. Violators face potential civil penalties that could total billions of dollars given the app's reach in the U.S.
The platform, which has operated as TikTok in the U.S. since 2018, says it has 170 million U.S. users. The app's parent company, Beijing-based ByteDance, has said it can't and won't sell its U.S. business.
TikTok argues the ban is a "massive and unprecedented speech restriction" that Congress hastily enacted based on speculative and overblown fears about China.
It says a ban isn't necessary to seal off TikTok from Chinese intrusion. The company says it spent $2 billion walling off U.S. user data on Oracle-owned U.S.-based servers. Congress, it says, also failed to consider less drastic alternatives to address concerns about covert content manipulation, such as a warning label posted on the platform cautioning users about China's potential influence.
A group of eight content creators also sued, arguing the ban threatens to eliminate a "quintessential marketplace of ideas." The American Civil Liberties Union and free-speech organizations have taken TikTok's side, likening the ban to a prior restraint on speech that courts typically reject.
The U.S. government disputes that the ban eliminates or disfavors speech. Nothing in the law, it says, would prevent a non-Chinese owner from circulating the same mix of content. It says a ban is necessary because TikTok's data security measures failed to adequately insulate TikTok and its data from Chinese control.
Government lawyers have analogized the ban to longstanding restrictions on granting radio licenses to foreign-owned corporations and efforts to eliminate Chinese links to U.S. telecommunications infrastructure.
Outgoing Senate Republican leader Mitch McConnell filed his own brief at the high court, urging the justices to leave the ban in place. "The topsy-turvy idea that TikTok has an expressive right to facilitate" Chinese censorship, McConnell said, "is absurd."
The Supreme Court will be deciding the high-stakes case on a compressed timeline that is far different from how it normally operates. Litigants typically spend months on legal briefs and other preparations, and the justices can then spend months crafting a decision. Here, the parties' lawyers will have to scramble during the holidays; the court ordered that all written briefing be completed by Jan. 3.
If the court doesn't delay or derail the ban, which takes effect on the eve of the inauguration, the focus could shift to President-elect Donald Trump. He originally supported a ban in his first term, but appeared to shift his view during his latest presidential campaign. "We'll take a look at TikTok," he said at a Monday press conference.
Trump can't unilaterally wipe away an act of Congress, though the law does allow the president to lift the ban if his administration determines the site is no longer under Chinese control.
TikTok in its legal papers suggested it was holding out hope that Trump would block the ban's enforcement or "mitigate its most severe potential consequences." On Wednesday, it said it was pleased the high court took the case and believed it would win.
In its Dec. 6 ruling, a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said Congress's security concerns were justified and paramount, even applying the most rigorous First Amendment standard.
The panel relied heavily on security concerns laid out by the Justice Department and statements submitted by national security officials. The U.S. government said ByteDance is subject to Chinese security laws requiring the company to grant Beijing full access to its data and to cooperate with criminal and security investigations.
Citing the U.S. government, the court said the Chinese government can exert its will on ByteDance through a "powerful Chinese Communist Party committee" embedded at its Beijing offices and that TikTok's U.S. operations are highly integrated with ByteDance.
"The First Amendment exists to protect free speech in the United States. 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," Judge Douglas Ginsburg wrote for the court.
Write to Jacob Gershman at jacob.gershman@wsj.com
(END) Dow Jones Newswires
December 18, 2024 16:33 ET (21:33 GMT)
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