December 19, 2024
I was just on a call with TikTok’s lawyers about what comes next now that the Supreme Court has decided to hear TikTok’s case and I wanted to make sure you’re in the loop.
First – as I said yesterday – this is an extremely quick and compressed timeline. In all of my 20 plus years covering the court – I have never seen the court move this quickly on any case so massive. But because it is what it is — TikTok’s lawyers – and lawyers for the Department of Justice are working furiously to write and turn in their briefs to the court by December 27th. Then they will all file their replies to each other on January 3rd. Two hours of oral arguments are scheduled for January 10th and the ban of TikTok is still on the books for January 19th. We don’t know when the court will issue a ruling – but something will likely happen before January 19th. See…that’s an extremely tight turn around. What that ruling looks like??? – literally no one knows.
The Supreme Court could do one of three things in those nine days between the oral arguments and January 19th.
One—they could rule on the entire case and say yep – we fully agree with TikTok. The ban and the Protecting Americans from Foreign Adversary Controlled Applications act is unconstitutional. We strike it down. Case closed. That is the cleanest, absolute best case scenario for TikTok.
Two – the court could rule on the entire case in the completely opposite direction and could say yep – we’re siding with congress and yes congress has every right to pass a law like this. It is constitutional and the ban of TikTok takes effect on January 19th.
Or three – the court could say after oral arguments – we need more time to reach a full decision on this case. So we are going to put a short pause on the ban – that’s called a temporary injunction – the January 19th ban is on hold – TikTok can remain functioning until we – the justices – issue our ruling. And that ruling could come days, weeks or months later.
Any one of those three things could happen.
So what did TikTok’s lawyers say about any of these options today? Well — Andy Pincas – TikTok’s lawyer who argued this case in front of the appeals court said that – TikTok is fully leaning into their argument that this law is a flagrant violation of the first amendment rights on not only the company but the 170 million American users on the platform.
As I have been reporting for at least a year – an overwhelming number of democrats and republicans said they needed to pass this law because TikTok’s parent company Bytedance is based in China therefore there is the potential – the government hasn’t proven it’s happened – but the government says there is the potential that maybe, possibly China could influence content on American soil through foreign propaganda and could maybe steal US user data. The lawmakers’ have publicly justified this ban by saying — allowing that risk to even exist is too damaging to our national security – and that potential risk – overshadows the potential damage this law will impose on your first amendment rights. The DC court of appeals said yep. We agree.
But Andy and TikTok say – no. That’s not how it works. First amendment protections for American speech are more important than the potential that maybe at some point there might be alleged foreign propaganda being shared to Americans through TikTok. And also – there is longstanding supreme court precedent that says even if there is foreign propaganda being spread on US soil – that’s considered protected speech under the first amendment – Americans have every right to see it and decide for themselves whether they want to consume the information.
TikTok made that argument to the DC court of appeals – that three judge panel didn’t care.
TikTok is also going to argue to the supreme court that this new power congress gave itself and the president in that law sets up a dangerous new precedent. And according to TikTok if it’s allowed to stand it could stretch beyond TikTok and could mean that the president and congress could just say any content they don’t like is a potential national security threat and ban it.
Andy said TikTok is also planning to argue – which I reported on in detail in this excusive interview I did with one of TikTok’s vice presidents – that to calm lawmaker’s nerves about potential foreign interference on the platform — TikTok had been working hand and hand with the federal government for years to set up project Texas and all kinds of high level security protocols — exactly as the US government wanted. And then without any warning – the government just randomly ghosted them and congress passed this law instead. TikTok was like – what?!?! What just happened? We did everything you wanted.
For the record – TikTok made that argument to the DC appeals court – they didn’t care. But maybe the justices will.
If the court rules against TikTok – Andy said there may be some things the new Trump administration could do – to not enforce the law – but as I reported in this video – all his options are pretty dicey.
