On December 16, the Liberty Justice Center and a group of TikTok creators applied to the U.S. Supreme Court for an injunction against the federal law that will ban TikTok, effective January 19, 2025, unless the Court intervenes. The application asks the Court to temporarily block enforcement of the ban while the Court considers the creators’ forthcoming petition to hear their First Amendment challenge to the law and until the Court issues a final order in the case. The application also invites the Court to consider the application itself as their petition for certiorari—that is, their petition asking the Court to hear the case—in the interest of ruling on the case as soon as possible.
As the petition explains, if the ban takes effect, it will violate the First Amendment rights of the millions of Americans who use TikTok to share and hear speech—and will shut down political speech on the platform the day before President Trump takes office. In particular, the ban will do irreparable damage to the Liberty Justice Center’s client, BASED Politics, a nonprofit that uses social media platforms including TikTok to publish educational content on free markets and individual rights. The ban would prevent BASED Politics from engaging in core political speech and from communicating with its audience about President Trump’s actions upon taking office, including the implementation of tariffs, the release of hostages in the Middle East, cuts by the Department of Government Efficiency, and the potential abolition of the Department of Education.
The TikTok ban was enacted through the Foreign Adversary Controlled Applications Act, signed into law by President Biden in April 2024. The Act would make it illegal for U.S. users to “access, maintain, or update” any apps owned by “foreign adversaries”—defined specifically to include TikTok—as of January 19.
The Liberty Justice Center filed a First Amendment challenge to the ban on June 6, arguing that banning an entire platform violates the free speech rights of millions. The Liberty Justice Center’s lawsuit on behalf of BASED Politics was combined with two other challenges to the ban—one filed by a group of TikTok content creators and one by TikTok Inc. and its parent company ByteDance—for oral arguments before the U.S. Court of Appeals for the District of Columbia. Though they brought separate cases, BASED Politics and the other creator petitioners joined together for their current Supreme Court application.
Despite the significant threat that it poses to the free speech of millions, and an emergency petition requesting the court temporarily halt enforcement of the ban until after the Supreme Court hears the case, the U.S. Court of Appeals for the District of Columbia upheld the ban on December 6, deferring to the Department of Justice’s claims that TikTok could threaten national security through use of Americans’ data and promotion of content that disserves the U.S. government’s interests. The creators argue in their Supreme Court petition that such speculative future harms have never sufficed to suppress free speech and that the First Amendment does not allow such deference to government assertions about national security.
“If it takes effect, the TikTok ban will shut down the speech of millions of Americans—including our clients’ speech on important political ideas and events. We urge the Supreme Court to take up this important First Amendment case and issue an immediate order halting the ban until it can issue a final decision,” said Jacob Huebert, President of the Liberty Justice Center. “Ultimately, the Court must make clear that the government cannot escape the First Amendment’s restrictions by simply saying the words ‘national security.’”
BASED Politics Inc. v. Garland was filed in the United States Court of Appeals for the District of Columbia on June 6, 2024.
The Liberty Justice Center’s legal filings in BASED Politics Inc. v. Garland are available here.