In a recent federal appeals court ruling, the decision not to temporarily block TikTok’s ban was handed down, setting the stage for a clash before the Supreme Court over whether the law should go into effect while the social media platform’s challenge is being considered.
Last week, the Washington DC Circuit Court of Appeals unanimously upheld the law, paving the way for it to go into effect on January 19. Days later, TikTok asked the court to temporarily suspend the ban while the company asks the Supreme Court to consider its challenge to the law. The appeals court unanimously denied the request in a brief unsigned order, calling such a block “unwarranted.”
The TikTok ban has been one of the most closely watched federal laws in recent years, and the law was widely expected to end up before the conservative-majority Supreme Court.
The law requires the platform to be sold to a new, non-Chinese owner or be banned in the United States. After the January deadline, U.S. app stores and internet services could face hefty fines for hosting TikTok if it isn’t sold. (Under the law, the president can grant a one-time extension of the deadline.)
The company had indicated in court papers that if the appeals court refused to grant a temporary reprieve, it would ask the Supreme Court to intervene on an emergency basis to temporarily block the law for now. That request could be made at any time.
The company’s lawyers argued before the appeals court that refusing to temporarily block the law would force the Supreme Court to hear the case on its so-called “phantom” docket “in a matter of weeks (and over the holidays, to boot).”
“Out of respect for the Supreme Court’s essential role, this Court should grant a preliminary injunction that would allow for a more deliberate and orderly process,” they wrote in their court papers.
The Biden administration, meanwhile, has urged the appeals court not to issue a temporary stay of the law, arguing that doing so could allow the company to wait months to appeal the case to the Supreme Court, effectively halting the law indefinitely.
Congress passed the ban with bipartisan support earlier this year, and President Joe Biden signed it into law in April. The move follows years of concerns in Washington that the app’s Chinese parent company, ByteDance, poses a national security risk.
The Washington, D.C. Circuit ruled last week that the law does not violate the U.S. Constitution, saying it meets a legal standard known as strict scrutiny that must be met for government restrictions on free speech to stand.
“The Act was the product of extensive, bipartisan action by Congress and successive presidents. It was carefully crafted to address only control by a foreign adversary, and it was part of a broader effort to address a well-documented national security threat posed by the People’s Republic of China,” the ruling said. “Under these circumstances, the provisions of the Act before us stand up to the closest scrutiny.”
TikTok’s lawyers, however, say the Supreme Court should have the final say in the case given the sensitivity of the legal issues at the heart of the case.
“This Court’s decision that the Act meets strict scrutiny is sure to attract the Supreme Court’s attention,” they wrote in court papers. “It is, at a minimum, a thorny question whether the Act is the rare law that would survive strict scrutiny.”
ByteDance has previously indicated that it would not sell TikTok.
This story has been updated with additional details.
Clare Duffy and Brian Fung of Fatshimetrie contributed to this report.