EXCLUSIVE — Advancing American Freedom, the conservative nonprofit advocacy group founded by former Vice President Mike Pence, filed an amicus brief on Monday urging the Supreme Court to uphold legislation mandating the divestment of TikTok from its Chinese owners or face removal from digital app stores.
The 20-page brief emphasizes national security concerns tied to TikTok’s ownership by ByteDance, a company headquartered in China and subject to influence from the Chinese Communist Party, and urges the nine justices to uphold the law known as the Protecting Americans from Foreign Adversary Controlled Applications Act.
“TikTok is digital fentanyl, a 21st-century technological weapon being used by the Chinese Communist Party to target the American people,” Pence said in a statement to the Washington Examiner accompanying the brief filed in the case TikTok v. Garland. “Our government’s first job is to defend our nation and its citizens. The Supreme Court should uphold the law forcing the sale of TikTok to protect the security and privacy of the American people.”
The Protecting Americans from Foreign Adversary Controlled Applications Act requires ByteDance to divest its ownership of TikTok or face a nationwide ban on its operation. The U.S. Court of Appeals for the District of Columbia Circuit recently upheld the law, rejecting TikTok’s arguments that the measure violated the First Amendment and due process protections.
The AAF brief underscores the argument that TikTok’s ownership poses a significant threat to national security.
“The Constitution empowers Congress to defend our nation against threats from adversaries,” lawyers for AAF told the Supreme Court of the law, which passed both chambers in a bipartisan fashion in April and was signed by President Joe Biden. “The First Amendment is not an open door to our adversaries, and there is no First Amendment that applies to the Chinese Communist Party.”
The brief also highlights that lower courts previously subjected the law to the highest level of scrutiny and still upheld it, arguing that the Supreme Court must now do the same to “protect the American people.”
In April, AAF launched a $2 million ad campaign urging the Senate to pass the divest-or-ban law. While President-elect Donald Trump and his former vice president were previously on the same page about trying to ban the app in 2020, Trump has said he now has a “warm spot” for the foreign-owned social media company after it aided his 2024 reelection and has vowed to try to “save” the app.
TikTok has challenged the legislation as unconstitutional, arguing that its forced sale violates free speech protections and due process rights. The company filed an emergency motion with the Supreme Court following the appeals court ruling.
The foreign-owned Big Tech company also argues in its appeal that a ban would cause up to 170 million users of the app to suffer “immediate harm” if the law goes into effect on Jan. 19, adding that “countless small businesses who rely on the platform” will suffer substantial and unrecoverable monetary and competitive harms.
Opposition to the legislation has emerged from unexpected quarters, including some lawmakers and advocacy groups. Sens. Ed Markey (D-MA) and Rand Paul (R-KY) issued a joint letter to Biden on Friday asking for a 90-day extension to the law’s implementation, saying it would be unrealistic for parent company ByteDance to find a new owner in the short amount of time before the law goes into effect.
Oral arguments are scheduled for Jan. 10, ahead of the law’s implementation deadline, which is one day before Trump is set to take office on Jan. 20. The parties face a short turnaround to file simultaneous opening briefs and a joint appendix by 5 p.m. Eastern time on Dec. 27, followed by reply briefs due by 5 p.m. on Jan. 3, and the justices have an even shorter amount of time to render a decision.
The Supreme Court has several options for addressing the TikTok ban. It could promptly affirm the D.C. Circuit’s decision in a summary ruling, relying on Judge Douglas Ginsburg’s opinion, or reverse it, though that would require a more fully developed explanation of errors by lower courts.
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Alternatively, the court might issue a temporary injunction to allow time for a full written opinion or delay ruling on the petition for certiorari, forcing the Biden administration to decide whether to extend the compliance deadline, according to South Texas College of Law professor Josh Blackman.
If neither the Supreme Court nor the White House acts by Jan. 19, TikTok would be banned under the current law.
Read the full brief below:
Advancing American Freedom (AAF) amicus brief in TikTok v. Garland by kaelandeese on Scribd
