The US Department of Justice filed a response on Friday (January 3) urging the Supreme Court to reject President-elect Donald Trump’s request to postpone the implementation of legislation that would force TikTok’s Chinese parent company to sell the app or face a ban in the US by January 19.
The Protecting Americans from Foreign Adversary Controlled Applications Act received bipartisan support in Congress and was signed into law by President Joe Biden in April 2024. Under its provisions, ByteDance must sell TikTok to a US-based company to continue operating in America.
In a new filing obtained by NBC News, lawyers for the Justice Department addressed ByteDance’s First Amendment challenge, stating “The Act does not warrant heightened First Amendment scrutiny because it does not impose a burden on any cognizable First Amendment rights of ByteDance, its US subsidiary, or TikTok’s users.”
The filing came in response to a request made by Donald Trump’s legal team, led by D. John Sauer, for the Supreme Court to extend the deadline beyond January 19 to allow for a potential “political resolution.”
However, the Justice Department argued that a delay would constitute a temporary injunction, which would require ByteDance to demonstrate a likelihood of success in their case, a threshold the department claims has not been met, NBC reported.
“The Act does not warrant heightened First Amendment scrutiny because it does not impose a burden on any cognizable First Amendment rights of ByteDance, its US subsidiary, or TikTok’s users.”
US Department of Justice Lawyers
TikTok has already appealed to the Supreme Court for a temporary pause to the law, invoking the First Amendment and arguing that “Congress has enacted a massive and unprecedented speech restriction” by targeting the app.
The timing of the ban taking effect is particularly significant as it is set to take place just one day before Trump’s inauguration.
Sauer, who is also Trump’s pick for US solicitor general, had earlier wrote that “President Trump takes no position on the underlying merits of this dispute. Instead, he respectfully requests that the Court consider staying the Act’s deadline for divestment of January 19, 2025, while it considers the merits of this case.”
However, Trump’s public statements on TruthSocial have opposed the ban. He recently shared a graphic claiming his TikTok account outperforms those of various public figures and media outlets in viewership, though NBC News notes these statistics have not been independently verified.
The Supreme Court has scheduled arguments for January 10, leaving just nine days before the potential ban takes effect. The case centers on ByteDance’s lawsuit challenging the law on First Amendment grounds, arguing it violates free speech rights.
NBC reports, citing the DOJ’s filing, that the Department maintained that the legislation specifically targets foreign adversary control rather than speech content.
“The Act does not warrant heightened First Amendment scrutiny because it does not impose a burden on any cognizable First Amendment rights of ByteDance, its US subsidiary, or TikTok’s users,” lawyers for the department wrote in the filing cited by NBC.
“The Act satisfies any level of First Amendment scrutiny, and this Court should uphold it,” they reportedly said.
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