TikTok Supreme Court appeal unlikely to succeed as 1/19 deadline looms

TikTok’s challenge to the Foreign Adversary Apps Act is running out of time as the battle moves to the Supreme Court. But the TikTok Supreme Court appeal will be an uphill fight as a January 19th deadline looms.

TikTok Supreme Court appeal unlikely to succeed as 1/19 deadline looms

by CHRIS CASTLE via Music Tech Policy

After a resounding rejection by the D.C. Circuit of TikTok’s Constitutional challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act, TikTok asked that court to stay its ruling pending review by the U.S. Supreme Court. (Joining in the injunction were the shadow “creator case” plaintiffs.). 

This motion was a predictable but somewhat bizarre tactic. TikTok had (and has) yet to file its appeal with SCOTUS, so the company was asking the DC Circuit to stay enforcement of the Act until an event that was within TikTok’s control came to pass. It would be one thing if TikTok had filed its appeal and SCOTUS had agreed to hear the case (which is itself rather doubtful in my view). But that’s likely to take at least weeks if not months, and the January 19 deadline for divestment-or-closure will likely arrive and pass before TikTok hears back from SCOTUS.

That means that the lawyers need to get the lead out and get that appeal on file. However, they probably have 90 days to file their request for SCOTUS to hear the appeal, and then the government will likely have 30 days after TikTok’s appeal to file opposition briefs. Although TikTok can file sooner than 90 days, the government is unlikely to file opposition briefs sooner than they have to. After the government files its opposition brief, TikTok has the opportunity to file a reply brief, usually within 14 days of the opposition brief. There can also be “friend of the court” briefs filed on the issue of granting appeal. SCOTUS will, of course, require the petition be fully briefed, and will likely require a full record from the DC Circuit (which also takes time).

Despite all the clocks within clocks, it is entirely likely TikTok and its army of lobbyists and lawyers has struck out. This is true for a simple reason: TikTok is an obvious national security threat and the First Amendment is not a suicide pact (h/t Mr. Justice Jackson). Their assertions that the Chinese Communist Party does not control their operation is not believable. It wasn’t believable to the Congress after years of lobbying and investigations. It isn’t believable to the DC Circuit, and I doubt it will be believable to the Supreme Court, either.

There are two primary reasons for this threat. One is that the CCP’s laws require all businesses, including TikTok’s parent corporation Bytedance to cooperate with China’s Ministry of State Security by handing over on demand any information MSS requires. This would include all data about TikTok’s users. The MSS is a vast organization that is similar to a combination of CIA and FBI but with no Constitutional protections or guardrails to protect citizens. 

Although that reason alone justifies the national security threat, another is that the Constitution of the Chinese Communist Party requires a CCP cell be established in every company large or small, including Bytedance. That cell keeps an eye on everything the company does to make sure it conducts business in line with Party orthodoxy and “Xi Jinping Thought” or “socialism with Chinese characteristics”. 

If Google is the Joe Camel of data, TikTok is the Joe Camel of spying.

As the DC Circuit said in its order denying TikTok’s motion for an injunction:

The petitioners have not identified any case in which a court, after rejecting a constitutional challenge to an Act of Congress, has enjoined the Act from going into effect while review is sought in the Supreme Court. The petitioners rely upon their claims under the First Amendment to justify preliminarily enjoining the Act. As to those claims, this court has already unanimously concluded the Act satisfies the requirements of the First Amendment under heightened scrutiny. In light of that decision, the time available to the petitioners to seek further review in the Supreme Court, and the interest in preserving the Supreme Court’s discretion to determine whether and to what extent to grant any interim injunctive relief while that Court considers a petition for a writ of certiorari, a temporary injunction of the Act from this court is unwarranted.

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