On Friday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit denied TikTok’s request for stay of the enforcement of the federal law imposing a ban in the United States if its Chinese owner, ByteDance, does not sell its U.S. operations to an American company.
Absent the stay, the law required ByteDance to sell its U.S. operations or face a ban starting January 19, 2025.
As I discussed in my December 6 post, “Federal Court Upholds TikTok Ban“, the 2024 law signed by President Biden was enacted due to national security concerns out of a fear that Chinese authorities could compel ByteDance to share American user data or manipulate content on the platform. TikTok has disputed the government’s security concerns.
The ban on TikTok, which is used by more than 170 million American users, is opposed by advocates of free speech and TikTok users who use the platform for social or business purposes.
Following the December 6, 2024 decision, TikTok and ByteDance filed an emergency motion seeing a temporary delay of enforcement to allow the Supreme Court to review the case and for the incoming administration to determine its stance on the matter.
In a two-page order, the Circuit Court stated:
The petitioners now seek a “temporary pause” in order “to create time for further deliberation.” They argue the injunction will “permit the Supreme Court to consider this case in a more orderly fashion” and “give the incoming Administration time to determine its position on this exceptionally important matter.” The petitioners are not, however, “merely seeking a stay of [this] court’s order, but an injunction against the enforcement of a presumptively valid Act of Congress.” Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers). Such a “temporary injunction against enforcement is in reality a suspension of an act, delaying the date selected by Congress to put its chosen policies into effect.” Heart of Atlanta Motel, Inc. v. United States, 85 S.Ct. 1, 2 (1964) (Black, J., in chambers). That is particularly true here because the Act reflects a deliberate choice on the part of the Congress and the President to set a firm 270-day clock — subject to one (and only one) extension of up to 90 days granted by the President if certain conditions are satisfied — after which the prohibitions of the Act take effect with respect to TikTok. See Op. 18–19.
The petitioners have not identified any case in which a court, after rejecting a constitutional challenge to an Act of Congress, has enjoined the Act from going into
effect while review is sought in the Supreme Court. The petitioners rely upon their claims under the First Amendment to justify preliminarily enjoining the Act. As to those claims, this court has already unanimously concluded the Act satisfies the requirements of the First Amendment under heightened scrutiny. In light of that decision, the time available to the petitioners to seek further review in the Supreme Court, and the interest i0n preserving the Supreme Court’s discretion to determine whether and to what extent to grant any interim injunctive relief while that Court considers a petition for a writ of certiorari, a temporary injunction of the Act from this court is unwarranted.
A copy of the order can be found here.
The outcome of the TikTok case will have broad implications for the balance between national security interests and free speech.
While TikTIk and ByteDance have publicly stated they will not sell their U.S. operations, it has been reported that TikTok and ByteDance are exploring potential buyers to avoid the ban.
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