WASHINGTON (CN) — All eyes are on the Supreme Court after TikTok filed an emergency appeal Monday challenging a ban on the popular social site, but there’s no guarantee the justices will emerge as the app’s savior.
TikTok asked for a high court freeze of the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act on First Amendment grounds after the D.C. Circuit rejected its injunction request on Friday. The app said the ruling's flawed legal rationale was a gateway to curb free speech.
"Fear-mongering about national security cannot obscure the threat that the Act itself poses to all Americans," TikTok wrote in its emergency application.
Although the contentious case is being closely watched by the public, legal experts say there’s no guarantee the Supreme Court will hear the case or reverse the lower court ruling.
“There are certain factors to this that the Supreme Court in the past has taken cases like this,” Daniel Solove, a professor of intellectual property and technology law at George Washington University Law School said. “It involves free speech, it's a very popular platform with millions of users, it's an issue that's very much in the news, but that does make the Supreme Court more likely to take cases. There's also a lot of cases like that the Supreme Court doesn't take, so it's really hard to predict.”
Lawmakers passed the law in a sweeping foreign aid package in April, citing national security concerns about the platform’s parent company, ByteDance, being controlled to some degree by the Chinese government. The law requires any application controlled by a country the U.S. designates as a foreign adversary to cut ties with its parent entity or face fines and a general ban in the U.S.
Wayne Unger, an assistant professor of law at Quinnipiac University School of Law, said the high court has a history of reining in congressional authority when lawmakers step out of bounds, but the national security interests in this case could weigh in favor of upholding the law.
“The fact that Congress vetted this, decided this and then in a very bipartisan way enacted this bill off of the great vetting that Congress does — the congressional investigation before it actually passes a bill — for those reasons, I expect the court to give some deference to Congress more so on their national security determination, not necessarily because they’re Congress,” Unger said.
Last term, the justices recognized that social media apps themselves can have First Amendment rights just like their users, and TikTok claims the law violates its protected speech rights by preventing the app from disseminating speech from millions of users.
But like individuals, platforms’ constitutional rights are not absolute.
“If the government has a strong enough interest, like national security, it can in fact infringe on free speech,” Solove said. “Free speech is balanced; it's not absolute. But there's a threshold, and so the whole point of the judicial review, the whole reason and the whole protection of the right, turns on the scrutiny of the government interest. Did the government make its case that it really does have to do this?”
Like the D.C. Circuit, the Supreme Court will likely consider the ban under strict scrutiny — the most difficult burden for the government to meet. Unger said the justices are unlikely to rule that national security concerns about Chinese government access to users' data aren’t a compelling government interest, but the law must closely hew to those concerns to pass muster.
“The national security interest is in relation to China, and so to mitigate that Chinese risk, either ban or sell,” Unger said. “There is a way in which the speech can continue, so it's not an outright total ban, but it is mitigating that national security risk from China.”
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