From Trump’s just-filed friend-of-the-court transient within the TikTok divestment case:
Introduction and Curiosity of Amicus Curiae …
Amicus curiae President Donald J. Trump (“President Trump”) is the forty fifth and shortly to be the forty seventh President of the US of America. On January 20, 2025, President Trump will assume duty for the US’ nationwide safety, international coverage, and different important government features. This case presents an unprecedented, novel, and troublesome stress between free-speech rights on one facet, and international coverage and national-security issues on the opposite. Because the incoming Chief Govt, President Trump has a very highly effective curiosity in and duty for these national-security and foreign-policy questions, and he’s the precise constitutional actor to resolve the dispute by way of political means.
President Trump additionally has a novel curiosity within the First Modification points raised on this case. By means of his historic victory on November 5, 2024, President Trump obtained a strong electoral mandate from American voters to guard the free-speech rights of all Individuals—together with the 170 million Individuals who use TikTok. President Trump is uniquely located to vindicate these pursuits, as a result of “the President and the Vice President of the US are the one elected officers who characterize all of the voters within the Nation.”
Furthermore, President Trump is without doubt one of the strongest, prolific, and influential customers of social media in historical past. Constant along with his commanding presence on this space, President Trump at the moment has 14.7 million followers on TikTok with whom he actively communicates, permitting him to judge TikTok’s significance as a novel medium for freedom of expression, together with core political speech. Certainly, President Trump and his rival each used TikTok to attach with voters in the course of the latest Presidential election marketing campaign, with President Trump doing a lot extra successfully. As this Courtroom instructs, the First Modification’s “constitutional assure has its fullest and most pressing utility exactly to the conduct of campaigns for political workplace.”
Additional, President Trump is the founding father of one other resoundingly profitable social-media platform, Fact Social. This offers him an in-depth perspective on the extraordinary authorities energy tried to be exercised on this case—the facility of the federal authorities to successfully shut down a social-media platform favored by tens of hundreds of thousands of Individuals, based mostly largely on issues about disfavored content material on that platform. President Trump is keenly conscious of the historic risks introduced by such a precedent. For instance, shortly after the Act was handed, Brazil banned the social-media platform X (previously referred to as Twitter) for greater than a month, based mostly largely on that authorities’s disfavor of political speech on X. See, e.g., Brazil’s Supreme Courtroom Lifts Ban on Social Media Website X, CBS NEWS (Oct. 8, 2024).
In gentle of those pursuits—together with, most significantly, his overarching duty for the US’ nationwide safety and international coverage— President Trump opposes banning TikTok in the US at this juncture, and seeks the flexibility to resolve the problems at hand by way of political means as soon as he takes workplace. On September 4, 2024, President Trump posted on Fact Social, “FOR ALL THOSE THAT WANT TO SAVE TIK TOK IN AMERICA, VOTE TRUMP!”
Moreover, President Trump alone possesses the consummate dealmaking experience, the electoral mandate, and the political will to barter a decision to avoid wasting the platform whereas addressing the nationwide safety issues expressed by the Authorities—issues which President Trump himself has acknowledged. See, e.g., Govt Order No. 13942, Addressing the Menace Posed by TikTok, 85 Fed. Reg. 48637, 48637 (Aug. 6, 2020); Concerning the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297 (Aug. 14, 2020). Certainly, President Trump’s first Time period was highlighted by a sequence of coverage triumphs achieved by way of historic offers, and he has an important prospect of success on this newest nationwide safety and international coverage endeavor.
The 270-day deadline imposed by the Act expires on January 19, 2025—at some point earlier than President Trump will assume Workplace because the forty seventh President of the US. This unlucky timing interferes with President Trump’s capability to handle the US’ international coverage and to pursue a decision to each defend nationwide safety and save a social-media platform that gives a well-liked car for 170 million Individuals to train their core First Modification rights. The Act imposes the timing constraint, furthermore, with out specifying any compelling authorities curiosity in that individual deadline. The truth is, the Act itself contemplates a 90-day extension to the deadline beneath sure specified circumstances. Pet.App.97a, § 2(a)(3)(A)-(C).
President Trump, due to this fact, has a compelling curiosity because the incoming embodiment of the Govt Department in seeing the statutory deadline stayed to permit his incoming Administration the chance to hunt a negotiated decision of those questions. If profitable, such a decision would obviate the necessity for this Courtroom to resolve the traditionally difficult First Modification query introduced right here on the present, extremely expedited foundation.
Abstract of Argument
President Trump takes no place on the deserves of the dispute. As an alternative, he urges the Courtroom to remain the statute’s efficient date to permit his incoming Administration to pursue a negotiated decision that would forestall a nationwide shutdown of TikTok, thus preserving the First Modification rights of tens of hundreds of thousands of Individuals, whereas additionally addressing the federal government’s nationwide safety issues. If achieved, such a decision would obviate the necessity for this Courtroom to resolve extraordinarily troublesome questions on the present, extremely expedited schedule.
There’s ample justification for the Courtroom to remain the January 19 deadline—by which divestment for ByteDance should happen, or else TikTok will face an efficient shut-down in the US—whereas it considers the deserves of the case. First, this Courtroom has aptly cautioned towards deciding “unprecedented” and “very vital constitutional questions” on a “extremely expedited foundation.” As a result of Act’s deadline for divestment and the timing of the D.C. Circuit’s determination, this Courtroom now faces the prospect of deciding extraordinarily troublesome questions on precisely such a “extremely expedited foundation.” Staying this deadline would supply respiratory area for the Courtroom to think about the questions on a extra measured schedule, and it might present President Trump’s incoming Administration a chance to pursue a negotiated decision of the battle. Certainly, the Courtroom lately pursued the same course in Zubik v. Burwell, vacating lower-court choices and pausing the enforcement of HHS’s contraceptive mandate towards spiritual organizations to “enable the events ample time to resolve any excellent points between them.”
Second, three options of the Act increase issues about doable legislative encroachment on prerogatives of the Govt Department beneath Article II. First, the Act dictates that the President should make a specific national-security dedication as to TikTok alone, whereas granting the President a higher “diploma of discretion and freedom from statutory restriction” as to all different social-media platforms. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936). Second, the Act mandates that the President should train his energy over international affairs “by way of an interagency course of” commanded by Congress, as a substitute of exercising his sole discretion over the deliberative processes of the Govt Department.
Third, the Act—on account of its signing date—now imposes a deadline for divestment that falls at some point earlier than the incoming Administration takes energy. Particularly when considered together, these distinctive options of the Act increase vital issues about doable legislative encroachment upon the President’s prerogative to handle the Nation’s geopolitical, strategic relationships general, and with certainly one of our most important counterparts, China, particularly. That is an space the place the Nation should “communicate … with one voice,” and “[t]hat voice have to be the President’s.” Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (quotation omitted).
Third, the First Modification implications of the federal authorities’s efficient shuttering of a social- media platform utilized by 170 million Individuals are sweeping and troubling. There are legitimate issues that the Act might set a harmful international precedent by exercising the extraordinary energy to close down a complete social-media platform based mostly, largely, on issues about disfavored speech on that platform. Maybe not coincidentally, quickly after the Act was handed, one other main Western democracy—Brazil— shut down one other whole social-media platform, X (previously referred to as Twitter), for greater than a month, apparently based mostly on that authorities’s need to suppress disfavored political speech.
Furthermore, regardless of the Act’s monumental influence on the speech of 170 million TikTok customers, the D.C. Circuit’s opinion grants solely cursory consideration to the free-speech pursuits of Individuals, whereas granting decisive weight and near-plenary deference to the views of national-security officers. But the historical past of the previous a number of years, and past, contains troubling, well- documented abuses by such federal officers in in search of the social-media censorship of bizarre Individuals.
In gentle of the novelty and issue of this case, the Courtroom ought to take into account staying the statutory deadline to grant extra respiratory area to deal with these points. The Act itself contemplates the potential for a 90-day extension, indicating that the 270-day deadline lacks talismanic significance. Such a keep would vitally grant President Trump the chance to pursue a political decision that would obviate the Courtroom’s must resolve these constitutionally vital questions….
Conclusion
President Trump takes no place on the underlying deserves of this dispute. As an alternative, he respectfully requests that the Courtroom take into account staying the Act’s deadline for divestment of January 19, 2025, whereas it considers the deserves of this case, thus allowing President Trump’s incoming Administration the chance to pursue a political decision of the questions at problem within the case.
The transient was written by John Sauer, whom Trump has tapped because the incoming nominee for Solicitor Common.
