Supreme Court needs to step in before January TikTok ban, ACLU says

The American Civil Liberties Union (ACLU) has formally appealed to the U.S. Supreme Court to block the expected TikTok ban, which looms over the social media company as January approaches.

“The Constitution imposes an extraordinarily high bar on this kind of mass censorship. The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world,” wrote deputy director of ACLU’s National Security Project Patrick Toomey. The amicus brief was submitted together by the ACLU, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University.

TikTok and its allies have called the ban a violation of the First Amendment right to free speech, and the company has consistently denied any connections to Chinese government intelligence or the sharing of American users’ data, which is the leading justification for the forced divestment of TikTok from Chinese ownership.

Barring an intervention by the highest court, the ban, signed by President Biden in April, will go into effect Jan. 19. TikTok could still divest from its parent company, ByteDance, to comply with the law and halt an outright ban, but it has resisted any sale so far. This week, the District of Columbia Court of Appeals denied an emergency injunction submitted by TikTok that would delay the ban’s effect until the Supreme Court could render an opinion under strict scrutiny. The Appeals court argued that highest scrutiny had been reached, and that national security interests justified the U.S. government’s action.

The ACLU and its partners argue the court’s reasoning is incorrect. “The D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok,” wrote the ACLU. “While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not.”

The ACLU has retained that the TikTok ban is a violation of federally protected rights, including free speech, calling the forceable sale “unconstitutional” in a statement released in March. A few months prior the civil rights organization argued that a ban on any such social media app would be “a dangerous act of censorship.”

“Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes,” wrote Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University, “and we should be very wary of letting the practice take root here.”