In his first term, President Trump tried to ban TikTok. Now he’s changed his tune: he’s asking the Supreme Court to delay enforcement of the federal ban that’s set to take effect on January 19. The reason: so that, after he takes office on January 20, he can use his “consummate dealmaking expertise” (his words) to make a deal that would save the platform while addressing national security concerns.
It’s not clear what brought Trump around—though he recently said he has a “warm spot” in his heart for TikTok because it might have helped him win the election. But whatever his motivation, his Supreme Court brief presents good reasons that the Court should take seriously.
Before we get to those, a review of the law: the TikTok ban is part of the Protecting Americans from Foreign Adversary Controlled Applications Act, which President Biden signed into law last April. The new law requires U.S. app stores to stop carrying TikTok, and U.S. servers to stop hosting it, by January 19–unless TikTok’s Beijing-based parent, ByteDance, turns its U.S. operations over to a different owner with no ties to Bytedance, China, or any other “foreign adversary.” ByteDance says that’s impossible because TikTok is an integrated global platform and relies on a content-recommendation engine developed and maintained in China. That makes the law effectively a ban.
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The law also authorizes the president to impose that same sort of ban on any other large social-media platform that he concludes is controlled by a foreign adversary and poses a significant threat to national security.
The law prompted several First Amendment lawsuits, including one from my public-interest law firm, the Liberty Justice Center, which the Supreme Court will hear today on Friday, January 10.
And, the other week, President Trump stepped into the cases with an amicus (“friend of the court”) brief.
Part of that brief argues that the ban intrudes on the President’s authority with respect to foreign policy—an argument the parties in the case haven’t made.
But another part of Trump’s brief provides strong support for the argument we have made: that the ban violates the First Amendment, and is designed not to protect national security but to suppress speech the government doesn’t like.
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Trump points out that the TikTok ban doesn’t just affect TikTok–it affects “the free-speech interest of the over 170 million Americans who use TikTok” to engage in “the entire range of protected freedom of expression,” including “core political speech.”
That’s true. For example, the client we represent, BASED Politics, uses TikTok to share ideas about individual liberty and free markets with a “Gen Z” audience it can’t reach anywhere else. And, as Trump’s brief says, both he and Kamala Harris used TikTok to connect with voters during the election.
Trump also highlights the most disturbing aspect of the TikTok ban: that it’s part of broader efforts by governments, in the U.S. and worldwide, to control speech on social media. Shortly after Biden signed the ban, Brazil shut down X for refusing to censor content the government found objectionable. And the TikTok ban followed four years of U.S. government efforts to censor social media–from suppression of the Hunter Biden laptop story, to mass-censorship of dissent from official government views on COVID.
Trump’s brief does go wrong in one respect, though: asking the Court to delay the law’s enforcement instead of declaring it unconstitutional.
A delay would be better than allowing the law to take effect as scheduled. But there’s no reason for the Court to wait on President Trump. The ban violates the First Amendment, so the Court can and should strike it down right now.
After all, to protect their right to free speech, Americans should be able to rely on the First Amendment—and shouldn’t have to depend on having the “consummate dealmaker” as their president.
Jacob Huebert is President of the Liberty Justice Center and lead attorney for BASED Politics, Inc. in its U.S. Supreme Court case challenging the federal TikTok ban.
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