WASHINGTON (CN) — A D.C. Circuit panel Friday denied TikTok’s request to pause an impeding ban, setting up an emergency appeal to the Supreme Court with less than five weeks before the ban takes effect.
The decision comes one week after the D.C. Circuit upheld the bipartisan Protecting Americans from Foreign Adversary Controlled Applications Act as constitutional, citing the government’s national security concerns regarding the app’s Chinese ownership.
‘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 panel said in a two-page per curiam order.
TikTok had requested the emergency injunction on Monday, arguing that without an injunction the Supreme Court would not have enough time to properly review the First Amendment issues that would result from banning an app used by nearly 170 million Americans.
Further, the injunction would grant incoming President Donald Trump time to decide how his administration would handle the app and concerns surrounding Chinese parent company ByteDance, “which could moot both the impending harms and the need for Supreme Court review,” TikTok said in its motion.
A TikTok spokesperson reiterated its intent to bring the issue before the high court in an emailed statement Friday.
“As we have previously stated, we plan on taking this case to the Supreme Court, which has an established historical record of protecting Americans’ right to free speech,” the spokesperson said. “The voices of over 170 million Americans here in the US and around the world will be silenced on Jan. 19, 2025, unless the TikTok ban is halted.”
The three-judge panel heavily sided with points the Justice Department raised in its opposition to the freeze earlier this week, noting that such an injunction would require the court to move against a “presumptively valid act of Congress.”
The Justice Department wrote in its reply brief Wednesday that courts, including the Supreme Court, traditionally presume that congressional acts should remain in effect until the justices reach a final decision, and thus an injunction would upend that tradition.
“That practice reflects the ‘presumption of constitutionality which attaches to every act of Congress,’” the Justice Department said in its reply brief.
The panel noted that both Congress and President Joe Biden agreed upon the 270-day window from April 24, when Biden signed the act into law, in which TikTok could divest itself from ByteDance.
The statute also included a one-time, 90-day extension, which Biden could only grant if there was some “progress towards a qualified divestiture,” another term for the stateside version of TikTok fully freeing itself from ByteDance control.
If the D.C. Circuit were to grant the injunction, the panel would be delaying the date selected by two higher branches of government, a move made particularly difficult without explicit precedent to rely on.
In the order, the panel explained that those First Amendment concerns were already addressed in its initial ruling and were rejected unanimously.
U.S. Circuit Judges Donald Ginsburg and Neomi Rao — Ronald Reagan and Trump appointees, respectively — determined that the federal statute satisfied “strict scrutiny,” the highest level of review applied to potential First Amendment violations.
Chief U.S. Circuit Judge Sri Srinivasan, a Barack Obama appointee, wrote in a concurring opinion that he felt the case only required the lower “heightened scrutiny” standard.
“In light of that decision, the time available to the petitioners to seek further review in the Supreme Court, and the interest in 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,” the panel wrote.
If the Supreme Court decides not to intervene, TikTok may turn to Trump, who pledged in September to save the platform after he takes office on Jan. 20 — a reversal from his efforts to force the app’s divestiture during his first term.
Trump has not commented on the D.C. Circuit’s ruling, leaving his intentions unclear. However, potential members of his cabinet, such as Secretary of State-nominee Marco Rubio and Federal Communications Commission chair-nominee Brendan Carr have supported a ban over national security concerns.
The case stems from a lawsuit filed by TikTok at the D.C. Circuit to block the ban, which it described as an obvious, extraordinary and unconstitutional restriction of speech. A group of TikTok content creators filed a similar lawsuit, arguing that the ban would deprive them of their livelihoods, and joined TikTok in its request for an injunction.
Lawmakers slipped a sweeping foreign-aid package into the act that also included around $95 billion for Ukraine, Israel and Taiwan. The act passed with a wide bipartisan margin as Congress argued the platform posed a national security threat. Biden signed it into law April 24.