SCOTUS Turns TikTok Ban Case Into TikTok-Style Short Attention Span Theater
TikTok is famous for its short attention span theater aspect of just watching some very short videos, without often having the time to go all that deep. The Supreme Court, however, is more known for being slow and methodical. However, the Supreme Court surprised many people yesterday by embracing its inner vertical screen dance moves, by doing the 20-second clip version of taking a case: it issued an order with an extraordinarily accelerated timeline to hear a challenge to the TikTok ban law.
It’s something the Supreme Court didn’t need to do, but did. And it’s going to ruin a lot of lawyers’ holidays.
A couple of weeks ago, the DC Circuit upheld the TikTok ban, which is set to go into effect a month from today. As we noted at the time, the ruling has massive problems regarding the First Amendment, mainly in taking the government’s word that as long as they say “national security” enough times, the government is allowed to get past any First Amendment concerns. This sets a dangerous precedent that the mere invocation of national security, without substantiation, is enough to curtail free speech.
To understand how crazy this is, just think of how the Pentagon Papers case would have turned out had that been the prevailing wisdom at the time.
TikTok had asked the DC Circuit to stay the ruling while it could appeal to the Supreme Court, and the DC Circuit refused. It then immediately went to the Supreme Court’s (don’t call it the) Shadow Docket to ask for an injunction to stop the law from going into effect.
In that filing, TikTok’s lawyers noted that they were specifically asking for an injunction to prevent the law from going into effect on January 19th, but were also willing for the Justices to consider the filing to be a cert petition to move the case from the shadow docket to the regular docket.
Furthermore, this Court may wish to consider construing this application as a certiorari petition and granting it
What the lawyers almost certainly meant was that if the Supreme Court was interested in doing a full briefing and oral arguments on this case it should (1) issue the injunction as requested and (2) simultaneously schedule briefing and oral arguments sometime in the coming months (already an accelerated pace).
But the underlying idea was that there should be more thoughtful consideration of this issue, not a rushed process within the next four weeks.
The Justices went in a different direction though, issuing an order that doesn’t issue the injunction, but instead calls for oral arguments on January 10th and asks for briefs (both sides’ openings, plus amici briefs) by December 27th, next week.
None of the timing on this makes any sense at all.
The parties are directed to file electronically simultaneous opening briefs, limited to 13,000 words, and a joint appendix on or before 5 p.m. (EST), Friday, December 27, 2024. Reply briefs, limited to 6,000 words, are to be filed electronically on or before 5 p.m. (EST), Friday, January 3, 2025. Any amicus curiae briefs are to be filed electronically on or before 5 p.m. (EST), Friday, December 27, 2024.
TikTok has existed in the US for years. We’ve had four years of (mostly moral panic-driven nonsense) debate over the alleged risks of TikTok, and they all remain entirely hypothetical. Even the DC Circuit ruling more or less admitted that the supposed harms were hypothetical. At some point in the future, everyone claims, the Chinese government could abuse its power to demand info on TikTok users, or they could start tweaking the algorithm to push a narrative they prefer.
But there’s no indication that either thing is happening today. If TikTok is pushing pro-China messaging, it’s doing an absolutely terrible job of it, as American opinions of China are at all-time lows. You’d think if China was really using TikTok for propaganda, they’d at least try to make themselves look good.
So, really, there’s no compelling reason not to grant an injunction, schedule briefing on a still-accelerated, but non-crazy timeline for some point in the spring, and let everyone get on with their lives.
Instead, SCOTUS is doing a rush job, where a bunch of lawyers (many of whom are underpaid civil society/public interest lawyers, not wealthy corporate lawyers) are going to have to ruin their holidays to brief a case that never should have gone this way in the first place.
The failure to issue an injunction at least suggests the Justices are not predisposed to overturn the DC Circuit’s opinion, but there are a lot of unknowns. I’ve now talked to half a dozen lawyers and the general summary about how the Justices are likely to come down in this case generates a giant ¯\_(ツ)_/¯. Nobody knows. It could be a 9-0 decision. It could be a weird 5-4 decision where the usual groupings are all mixed up.
But it’s going to be done in a rushed fashion, without anything approaching the normal time to prepare.