TikTok Inc. v. Merrick Garland, argued before Chief Judge Sri Srinivasan, Circuit Judge Neomi Rao, and Senior Circuit Judge Douglas H. Ginsburg in the U.S. Court of Appeals for the District of Columbia Circuit on September 16, 2024. Argued by Andrew J. Pincus (TikTok petitioners),  Jeffrey L. Fisher (TikTok creator petitioners), and Daniel Tenny (on behalf of Merrick Garland).

Background on the case, excerpted from the Brief of the TikTok Petitioners (citations omitted):

TikTok is an innovative online platform used by 170 million Americans. These Americans form part of a unique global community with more than 1 billion users worldwide, with whom they create, share, and view videos—“speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

All that will end on January 19, 2025, when the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act”) will ban TikTok throughout the country.

The Act is unprecedented. Never before has Congress expressly singled out and shut down a specific speech forum. Never before has Congress silenced so much speech in a single act….

Congress provided no justification for banning TikTok by fiat, while creating substantive and procedural protections, as well as unexplained exclusions, for all other companies alleged to pose the same risks.

Without findings, the Court is left with statements of individual Members and a single committee report. Many of those Members criticized cherry-picked content on TikTok, merely reinforcing the Act’s unconstitutionality. The report invoked national security, pointing to the speculative possibility that TikTok could be misused in the future.

But a claim of national security does not override the Constitution….

The First Amendment requires this Court to examine such an extraordinary speech restriction with the utmost care and most exacting scrutiny….

Issues Presented, also from the Brief of Petitioners:

1. Whether the Act violates the First Amendment.


2. Whether the Act violates equal protection.


3. Whether the Act is a Bill of Attainder.


4. Whether the Act effects an unconstitutional taking.

Resources:

• Public Redacted Brief for Respondent


• CourtListener case docket for TikTok Inc. v. Merrick Garland


• Background on United States v. O’Brien

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