TikTok and the Department of Justice (DOJ) jointly requested on May 17 that a federal appeals court expedite consideration of a challenge to a new law that will ban the app in the United States if its Chinese parent company doesn’t divest it, citing national security concerns.
The request was filed jointly by TikTok; its Chinese parent company, ByteDance; a group of content creators who joined the petition; and the DOJ. According to a joint motion filed in the U.S. Court of Appeals for the District of Columbia Circuit, they agree that the court should expedite its decision by Dec. 6 to allow time for a potential Supreme Court review before the deadline mandated by the law, Jan. 19, 2025.
The new law, signed by President Joe Biden on April 24, prohibits any entity from distributing, maintaining, or updating TikTok in the United States unless ByteDance divests its ownership by the deadline.
ByteDance has stated that it will not sell TikTok, leaving the company to either challenge the law or be prohibited from the U.S. app marketplace next year.
According to the petition, both TikTok and some of its users, who joined the challenge on May 14, are arguing that they will “suffer irreparable harm because the Act violates their First Amendment right to create, share, and receive content through their chosen platform, TikTok.”
The DOJ informed the court that it may need to file classified material in support of its case on an ex parte basis, meaning that it won’t notify the other parties beforehand. The classified materials would “support the national security justifications underlying the challenged statute.”
First Amendment Versus US National Security
TikTok contends that the law infringes on the First Amendment rights of its hundreds of millions of users and violates several constitutional protections.Supporters of the law argue that it is a necessary measure to prevent the Chinese Communist Party (CCP) from accessing U.S. consumer data and influencing Americans through TikTok’s algorithm.
However, TikTok and ByteDance assert that they have never shared and will not share U.S. user data with the CCP, despite China’s counterespionage law requiring such cooperation if requested.
The petition to the appeals court argues that the law imposes an unprecedented nationwide ban on a single speech platform, barring Americans from a global online community.
“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 one billion people worldwide,” TikTok said in its May 7 filing.
“There is no question: The act will force a shutdown of TikTok by Jan. 19, 2025.”
Before the law was passed, lawmakers in Congress received classified national security intelligence briefings. It was concluded that TikTok poses a “grave risk” to national security, according to Rep. John Moolenaar (R-Mich.), chairman of the House Select Committee on the CCP.
Proposed Schedule
The parties proposed a briefing schedule that aims to ensure enough time for legal proceedings before the law’s prohibitions take effect.The proposed schedule includes opening briefs for both TikTok and creator petitioners due on June 20, followed by amicus curiae briefs on June 27.
The respondent’s consolidated answering brief is proposed for July 26, with amicus curiae briefs in support of the respondent due by Aug. 2. Reply briefs for both TikTok and creator petitioners are proposed for Aug. 15.
The parties request that oral arguments be scheduled for the earliest possible date in the court’s September 2024 sitting.
