WASHINGTON- President-elect Donald Trump is telling the Supreme Court that he can reach a deal that will resolve the national security dispute over TikTok and preserve the video site for 170 million Americans.
All the judges need to do, he says, is step aside and stay a pending law that could shut down TikTok on Jan. 19, the day before Trump takes office again.
“Only President Trump possesses the consummate experience in reaching agreements, the electoral mandate and the political will to negotiate a resolution that saves the platform,” his lawyer said in a brief filed as a friend of the court late Friday.
His plan might work, at least to buy more time.
The justices had agreed to make an expedited ruling on the potentially momentous issue involving social media and free speech.
“I think the court is likely to see great benefit in issuing a stay and little drawback,” said UC Berkeley Law Dean Erwin Chemerinsky. “The case raises a novel and very difficult First Amendment issue. “Never before has the government attempted to ban a media outlet, but there is also a history of judicial deference to national security claims.”
Before Trump's intervention, TikTok appeared to face an uphill battle in court.
The House and Senate had passed legislation by large bipartisan majorities requiring the platform to separate from its Chinese owner or close in this country.
President Biden signed the bill into law in April. And according to its terms, it was to come into force in 270 days.
Although judges have no qualms about striking down federal regulations, they are cautious about striking down an act of Congress, particularly one that is based on threats to national security.
The U.S. appeals court in Washington cited national security when it upheld the law earlier this month. In a 3-0 decision, the justices said the law did not target speech or expression. Rather, lawmakers were convinced that the Chinese parent company could collect personal data on millions of Americans, the judges said.
If the law went into effect on January 19, Apple, Oracle and other US companies could have faced large civil fines if they had continued to work with TikTok.
Trump's lawyer, D. John Sauer, filed a friend-of-the-court brief that differed in tone and substance from all the others. Instead of weighing in on the First Amendment question the justices had agreed to decide, he explained why Trump was better positioned to decide it.
“Through his historic victory on November 5, 2024, President Trump received a powerful electoral mandate from American voters to protect the free speech rights of all Americans, including the 170 million Americans who use TikTok,” wrote. “In addition, President Trump is one of the most powerful, prolific and influential social media users in history.”
Noting that Trump has 14.7 million followers on TikTok, Sauer argued that the president-elect is well positioned “to evaluate the importance of TikTok as a unique medium for free expression, including core political speech.”
He also wrote that as the founder of another social media platform, Truth Social, Trump has “deep insight into the extraordinary government power attempted to be exercised in this case: the power of the federal government to effectively shut down a social network.” -Media platform favored by tens of millions of Americans.”
“In light of these interests, including, most importantly, his overall responsibility for the national security and foreign policy of the United States, President Trump opposes banning TikTok in the United States at this time and seeks the ability to resolve the issues at hand through political means once he takes office.”
In 2020, Trump had expressed alarm about TikTok due to its Chinese ownership. Lawmakers later heard classified reports that convinced them that foreign ownership posed a danger.
But by the time the law won approval, Trump had switched sides. He said he believed TikTok helped him win the support of young voters.
“TikTok had an impact, so we're looking at it,” he told reporters two weeks ago. “I have a warm little place in my heart.”
A year ago, his lawyer Sauer came under fire from some legal experts for boldly claiming that Trump, as a former president, had absolute immunity from criminal charges for his official acts while in office.
But in July he won a 6-3 Supreme Court ruling that gave him and Trump what they had sought.
Sauer will now represent Trump and his administration before the Supreme Court as U.S. attorney general.
He did not say exactly what the court should do now, only that it “should consider postponing the statutory deadline to give more breathing room” to the incoming administration and that a provision of the law allowed for a 90-day extension before it took effect. .
The court requested responses to the competing briefs by next Friday. He scheduled two hours of discussion for January 10.
It is not certain that the judges will easily comply with Trump's request.
Two weeks ago, Trump's former lawyer Noel Francisco filed an appeal on behalf of TikTok urging the judges to briefly suspend the law. But the justices ignored that suggestion and said they would decide whether the divestment law violated the First Amendment.
“I'm skeptical that Trump's intervention will make a difference,” said Alan Rozenshtein, a University of Minnesota law professor who has written about the pending legislation.
He noted that the Supreme Court denied TikTok's request to stay the law because it did not believe TikTok could meet the requirements for a stay: a reasonable chance to win on the merits.
“Trump's argument doesn't change that,” he said. “It may be bad luck for TikTok (and Trump) that the law goes into effect the day before the inauguration, but that's life.”
