Lawmakers, former officials weigh in on TikTok ban as case heads to Supreme Court

Top lawmakers, First Amendment advocacy groups and President-elect Trump weighed in Friday on a law that could ban TikTok in the U.S., as the Supreme Court prepares to take up the case.

The court agreed last week to hear TikTok’s challenge to the law, which requires its China-based parent company ByteDance to divest from the app by Jan. 19 or face a ban.

The case is being heard at a speedy pace, with oral arguments set for Jan. 10 and a possible decision just days before the ban is set to go into effect.

Here’s a look at who is supporting each side in the blockbuster First Amendment case.

Uphold TikTok ban

The Biden administration, which is defending the law, insists it complies with the First Amendment because any free speech concerns are superseded by the government’s compelling national security interest.

“The First Amendment would not have required our Nation to tolerate Soviet ownership and control of American radio stations (or other channels of communication and critical infrastructure) during the Cold War, and it likewise does not require us to tolerate ownership and control of TikTok by a foreign adversary today,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief on Friday.

Senate Minority Leader Mitch McConnell (R-Ky.)

Sen. Mitch McConnell urged the court last week to reject TikTok’s request to delay the law.

McConnell’s filing, which was submitted shortly before the court decided to take up the case in full, dismissed TikTok’s First Amendment claim and argued against moving the Jan. 19 deadline.

“The topsy-turvy idea that TikTok has an expressive right to facilitate the CCP censorship regime is absurd,” McConnell’s counsel Michael A. Fragoso wrote. “Would Congress have needed to allow Nikita Khrushchev to buy CBS and replace The Bing Crosby Show with Alexander Nevsky?”

Select Committee on the CCP

Reps. John Moolenaar (R-Mich.) and Raja Krishnamoorthi (D-Ill.), the chair and ranking member, respectively, of the House Select Committee on China’s Communist Party, submitted a joint brief detailing Congress’s “extensive legislative factfinding” on the threat posed by China.

“Congress therefore determined that addressing this existing and future threat for designated social media applications, including TikTok, required excising the foreign adversary control from the applications,” their attorney wrote.

Former FCC Chair Ajit Pai

Ajit Pai, who led the Federal Communications Commission (FCC) under Trump, filed an amicus brief supporting the divest-or-ban law alongside Thomas Feddo, who previously oversaw the Committee on Foreign Investment in the United States.

The pair pointed to their own experience in arguing that the government’s concerns are “well-founded” and the law’s approach is “nothing new or extraordinary.”

“As amici curiae know well from their prior government service, DOJ’s concerns are well founded,” they wrote. “The United States has long had significant and legitimate public policy concerns over PRC-based corporate control of businesses in the United States generally—and more recently, with TikTok in particular. “

Mike Pence’s political advocacy group

Advancing American Freedom, a conservative political advocacy group founded by former Vice President Mike Pence, submitted a brief contending that ruling for TikTok would effectively be acquiescing to the Chinese Communist Party (CCP).

“The CCP does not respect free speech, either in China or in America. The First Amendment is not, and should not be read as, a means of granting the Chinese government the power to do what the American government could not: manipulate what Americans can say and hear,” the group wrote.

Two former attorneys general

Two former attorneys general in Republican administrations filed a joint brief backing the ban: Michael Mukasey, who served under former President George W. Bush, and Jeff Sessions, who served under Trump.

Their brief was joined by more than a dozen former national security officials.

“Having failed to effectively confront the enduring national security threat that TikTok and its relationship with the CCP poses to American’s and their data, TikTok now seeks to wrap itself in the American fag, citing the First Amendment as the core reason the government ought not be able to force divestiture,” the officials’ attorney wrote.

“But the Act doesn’t even implicate the First Amendment.”

22 Republican-led states

Led by Montana and Virginia, 22 Republican state attorneys general are backing the TikTok ban, saying their states are “grateful that Congress acted to protect the American people.”

The brief invokes TikTok’s ongoing challenge to a Montana law that bans the platform in the state, saying TikTok has taken contradictory positions.

“TikTok asks this Court to declare that the peoples’ representatives are powerless at all levels of government to stop a hostile foreign power from spying on Americans. TikTok and the Chinese Communist Party cannot hide behind the First Amendment,” the brief reads.

Preserve TikTok

TikTok has asked the justices to invalidate the ban for violating the free speech rights of the platform and its tens of millions of U.S. users, describing the law as an “unprecedented action” that is “at war with the First Amendment.”

“Petitioners do not contest Congress’s compelling interest in protecting this Nation’s security, or the many weapons it has to do so. But that arsenal simply does not include suppressing the speech of Americans because other Americans may be persuaded,” TikTok wrote in its brief.

Trump

Trump formally got involved in the litigation Friday for the first time, insisting he can negotiate a resolution to save TikTok once he takes office, so the justices should delay the ban in the meantime.

Trump took no position on the First Amendment issues at the center of the case but said a political resolution could obviate the court’s need to resolve the controversial free speech question.

“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns,” wrote D. John Sauer, Trump’s nominee for U.S. solicitor general, which would have him take over managing the government’s defense of the ban.

Sens. Ed Markey and Rand Paul, and Rep. Ro Khanna

Sens. Ed Markey (D-Mass.) and Rand Paul (R-Ky.) and Rep. Ro Khanna (D-Calif.) jointly filed a brief arguing that the law does not withstand First Amendment scrutiny.

All three lawmakers have previously voiced concerns about the divest-or-ban law. Their filing Friday contends there are “less restrictive” alternatives that could address the government's concerns.

“History has shown time and time again that the government is too quick to prohibit speech when faced with the specter of foreign interference or security risks. That track record should cause this Court to view skeptically the government’s assertions here that national security demands speech prohibitions,” they wrote.

First Amendment and internet advocacy groups

The American Civil Liberties Union teamed up with a coalition of First Amendment and internet advocacy groups, like the Electronic Frontier Foundation and the Center for Democracy and Technology, to support TikTok.

The groups said the federal government has failed to present sufficient evidence to justify forcing millions of Americans off a platform “uniquely suited to how they want to speak and share.”

Free speech groups like the Knight First Amendment Institute and the Foundation for Individual Rights and Expression (FIRE) similarly filed briefs backing TikTok. FIRE’s brief was also joined by conservative influencer CJ Pearson.

Social and racial justice organizations

Several social and racial justice organizations, like Stop AAPI Hate and GLAAD, an LGBTQ media advocacy organization, also are supporting TikTok at the high court.

They hailed the platform as a “modern-day digital town square that empowers diverse communities, often neglected by other media outlets.”

“Amici also harbor serious misgivings that the Government’s stated rationale for censoring 170 million U.S. voices on TikTok arises from, and perpetuates, our nation’s history of weaponizing pretextual national security concerns to demonize immigrants and minorities,” their brief states.

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