Supreme Court to Decide TikTok’s Fate in Novel First Amendment Case

The U.S. Supreme Court has agreed to consider an emergency appeal that will likely decide whether the popular social media app TikTok will remain available in the United States. The consolidated cases before the Court, TikTok Inc. v. Garland and Firebaugh v. Garland, involve legal challenges to the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA), which requires TikTok to be sold or shut down its app in the United States.

Facts of the Case

TikTok Inc. is an American company that publishes the TikTok app. The company is ultimately owned by ByteDance Ltd., affiliates of which operate in China.

Approximately 150 million people in the United States access the application every month. At the same time, critics have questioned how much access the Chinese government has to the data it collects from U.S. users.

In April 2024, Congress took legislative action against TikTok by enacting the PAFACAA as part of a supplemental appropriations act.The controversial new law makes it unlawful for app stores and internet hosting services to enable the distribution, maintenance, or updating of a foreign adversary controlled application unless the application’s owners execute a “qualified divestiture.”The PAFACAA expressly includes applications operated by TikTok Inc. or its parent company ByteDance, Ltd., in the definition of “foreign adversary controlled application” due to their association with the Chinese government.

In justifying the ban, Congress cited the potential for the Chinese government to access sensitive data belonging to its 170 million U.S. users. It further maintained that China could use TikTok to spread misinformation and disinformation in the United States.

On May 7, 2024, TikTok Inc. and ByteDance Ltd. filed apetitionagainst Attorney General Merrick Garland in the U.S. Court of Appeals for the D.C. Circuit, alleging that the PAFACAA is unconstitutional. TikTok argues that the PAFACAA violates the First Amendment; and the PAFACAA constitutes an unlawful bill of attainder under Article I. “For the first time in history, Congress has enacted a law that subjects a single, named speech platform to a permanent, nationwide ban, and bars every American from participating in a unique online community with more than 1 billion people worldwide,” TikTok argued.

D.C. Circuit’s Decision

The D.C. Circuit Court of Appeals unanimously upheld the law. While the appeals court agreed that PAFACAA restricts speech under the First Amendment, it ultimately found that it passed strict scrutiny.

“The Act was the culmination of extensive, bipartisan action by the Congress and by successive presidents. It was carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a well-substantiated national security threat posed by the (People’s Republic of China),” the court wrote. “Under these circumstances, the provisions of the Act that are before us withstand the most searching review.”

After the D.C. Circuit denied TikTok’s request to put the law on hold to give the company time to seek review in the Supreme Court, it sought emergency relief from the Court in the form of an injunction pending review. TikTok alternatively suggested the Court treat the application as a petition for a writ of certiorari.

Issues Before the Supreme Court

The Supreme Court granted certiorari on December 18, 2024 . The justices have agreed to consider the following question:

Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

Oral arguments are scheduled for January 10, 2024. A decision in the case is expected to come relatively quickly given the emergent nature of the dispute. The PAFACAA take effect on January 19, 2024.