Social media giant TikTok asked the Supreme Court on Monday to intervene in the challenge to a law mandating the company divest its American subsidiary or face a ban in the U.S., calling the law unconstitutional.
The application from the social media company and several of its users asked the justices to freeze a decision from the U.S. Court of Appeals for the D.C. Circuit earlier this month that would force the sale or ban of the company by Jan. 19. The company, majority owned by China-based Bytedance Ltd., argued that the freeze would give the justices enough time to weigh — and eventually overturn — the law.
TikTok’s application argued that Congress’s justifications to uphold the divestiture did not pass constitutional muster. The company said that divesting its American subsidiary was not possible and Congress had effectively banned it from the U.S.
“Congress’s unprecedented attempt to single out Applicants and bar them from operating one of the most significant speech platforms in this Nation presents grave constitutional problems that this Court likely will not allow to stand,” the petition said.
The majority opinion from the appellate court found that the free speech guarantees of the First Amendment are meant to protect speech in the U.S. and Congress 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.”
Chief Judge Sri Srinivasan wrote a separate opinion concurring with the judgment and arguing that Congress has the authority to step in and address a potential national security threat.
“Congress judged it necessary to assume that risk given the grave national-security threats it perceived,” Srinivasan wrote. “And because the record reflects that Congress’s decision was considered, consistent with longstanding regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside.”
TikTok argued in Monday’s application that “Congress has enacted a massive and unprecedented speech restriction” because of concerns about national security. Those concerns should not justify the restrictions, the application said.
“The Government admits that in the years it has had concerns about TikTok, it has found no evidence that any foreign adversary has manipulated the content Americans see or misappropriated their private data,” the application said.
The company argued that the proper way for Congress to deal with concerns about foreign influence or propaganda is to have labels or other disclosures.
“Congress has no legitimate interest in interfering with the U.S. ownership of an expressive platform to alter its content — whether or not Congress deems some such content foreign propaganda,” the application said.
The law, passed by Congress earlier this year, mandates that TikTok’s American subsidiary be divested from China-based ownership or be blocked in the U.S. The Biden administration, and supporters in Congress, have argued the company represents a massive threat to Americans’ privacy and potential social manipulation.
In court the Biden administration argued that the Chinese government could gain access to troves of data that users provide the platform, or order the company to manipulate content in its algorithm.
Attorneys for TikTok argued the law amounted to government punishment of speech that it disliked — pointing to statements made by members of Congress criticizing the amount of pro-Palestinian speech on the platform.
The company has maintained that the Chinese government does not have access to user data and that the Biden administration walked away from an agreement that could have kept user data in the U.S.
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