Plain English
Words these pages use because the courts use them. The case went through two courts, the D.C. Circuit and the Supreme Court, and a few words only matter after the ruling, in the case that came after it.
The courts
- D.C. Circuit
- The U.S. Court of Appeals for the District of Columbia Circuit, in Washington. The law sends every challenge to it first, and to no other court.
- Panel
- The three judges of an appeals court who hear a case or a motion. The D.C. Circuit has about a dozen judges, and different panels handle different steps.
- Merits panel
- The panel that will decide a case itself, as opposed to the ones that handle motions along the way.
- Attorney General
- The head of the Justice Department. The law gives this office alone the job of enforcing it, which is why the case is named after one.
- Solicitor General
- The lawyer who argues the federal government’s cases in the Supreme Court. Elizabeth Prelogar held the job when this case was argued.
- Per curiam
- Latin for “by the court.” An opinion that no one justice signs, issued in the name of the whole Court.
- Concurring opinion
- A justice who agrees with the result writing separately to give other or extra reasons. Concurring “in the judgment” means agreeing with the result but not the Court’s reasoning.
The paperwork
- Docket
- The court’s numbered list of everything filed in a case. Entry 42 is the forty-second thing filed.
- Petition for review
- How a case under this law starts: a request made straight to the appeals court, with no trial court first.
- Exclusive jurisdiction
- Being the only court allowed to hear a kind of case. The law gave that to the D.C. Circuit.
- Consolidated
- Separate cases joined so they’re briefed, argued and decided together.
- Brief
- A side’s written argument to the court.
- Amicus brief
- A brief from someone who isn’t a party, a “friend of the court,” giving the court a view of the case.
- Declaration
- A written statement a witness signs under penalty of perjury. There was no trial here, so the evidence was mostly declarations.
- Record
- Everything a court has in front of it to decide a case: the filings, the declarations, the evidence.
- Classified evidence
- Material the government keeps secret for national security. It filed some here for the judges alone, which the other side never got to see or answer.
- Special master
- Someone a court appoints to help with a task. TikTok asked for one with a security clearance to review the secret evidence.
How the case moved
- Application
- A request to the Supreme Court for emergency help before it has taken a case. Here, to pause the law before it took effect.
- Injunction
- A court order stopping something. One “pending review” pauses a law while a higher court looks at the case.
- Certiorari
- The Supreme Court agreeing to hear a case. Here it treated TikTok’s emergency applications as requests for it and granted them two days later.
- Question presented
- The exact question the Supreme Court agrees to answer. Here there was one: does the law, as applied to TikTok and the creators, violate the First Amendment.
- As applied
- A challenge to how a law works on the people bringing it, not to every possible use of it. The Supreme Court looked only at the part of the law that names TikTok.
- Oral argument
- The time the lawyers spend answering the judges’ questions in court. No witnesses, no new evidence and no jury.
- Divided argument
- Two lawyers splitting one side’s time. TikTok’s lawyer and the creators’ lawyer shared the challengers’ side.
- Rebuttal
- The few minutes the side that brought the case gets at the end, to answer the other side.
- Mandate
- The formal order that closes an appeal and makes the decision final in the court below.
- Moot
- No longer a live question, so there’s nothing left for a court to decide.
The law
- Divestiture
- Selling off a business, or enough of it that the seller no longer controls it.
- Qualified divestiture
- A sale the President finds ends a foreign adversary’s control and leaves no “operational relationship” with ByteDance. Only that lifts the law’s ban.
- Operational relationship
- The tie the law says can’t survive the sale, “including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing.”
- Foreign adversary
- A country the law treats as one: China, Russia, Iran and North Korea.
- App stores and hosting
- What the law actually forbids, which is offering the app in an app store or hosting it. So it binds companies like Apple, Google and Oracle, not TikTok’s users.
- Civil penalty
- A fine, not a crime. The law sets it at up to $5,000 for each US user reached through a violation.
- The one extension
- The law let the President add up to 90 days, once, if he told Congress a sale was in sight and showed binding agreements. No President used it.
- The general track
- The law’s second route, which lets the President name other apps controlled by a foreign adversary later. TikTok was named in the law itself.
- Recommendation algorithm
- The software that picks which video each user sees next on the “For You” feed. ByteDance owns it, and it’s developed and maintained in China.
- Executive order
- A written order from the President to the executive branch, published in the Federal Register.
- Non-enforcement
- The executive branch choosing not to bring cases under a law, here on the President’s orders. The law itself stays on the books.
- CFIUS
- The Committee on Foreign Investment in the United States, the federal panel that reviews foreign purchases of US businesses for security risks.
- National security agreement
- A contract setting the security conditions a company operates under. TikTok’s draft ran about 90 pages and was never signed.
- Project Texas
- TikTok’s plan to keep US users’ data in the United States, stored with Oracle and run by a separate US company. TikTok says it spent more than $2 billion on it.
- IEEPA
- The International Emergency Economic Powers Act, the 1977 law President Trump used for his 2020 ban. Courts found it couldn’t reach this kind of communication.
The free-speech test
- First Amendment
- The part of the Constitution that bars the government from “abridging the freedom of speech.” Courts check laws that burden speech with one of a few tests.
- Assume without deciding
- A court treating something as true for the sake of argument, because the answer wouldn’t change the result, and leaving the real question open.
- Heightened scrutiny
- Any of the stricter tests a court uses when a law burdens speech, instead of just asking whether the law is reasonable.
- Strict scrutiny
- The hardest test. The government needs a compelling reason and the narrowest way of getting there. Most laws that get it fail.
- Intermediate scrutiny
- The middle test. The government needs an important reason that isn’t about suppressing speech, and a law that doesn’t burden much more speech than it has to.
- Content-based
- Aimed at what is said, its topic, idea or message. A content-based law gets strict scrutiny.
- Content-neutral
- Applying whatever is said, like a limit on how loud a speaker can be. A content-neutral law gets intermediate scrutiny.
- Singling out a speaker
- A law aimed at one speaker. Courts look harder when that’s a way of getting at what the speaker says.
- Tailoring
- Whether a law fits its reason, covering what the problem needs and not much more.
- Less restrictive alternative
- Another way of meeting the same goal that burdens less speech. If one would work as well, the law can fail.
- Underinclusive
- Covering too little of the problem a law claims to fix, which can suggest the stated reason isn’t the real one.
- Deference
- A court giving weight to another branch’s judgment, here Congress’s predictions about national security.
- Covert content manipulation
- The government’s second reason: that China could secretly have ByteDance change what Americans see on TikTok. The Supreme Court didn’t rest on it.
The other claims
- Equal protection
- The Constitution’s promise that the government won’t treat people differently without a good enough reason.
- Bill of attainder
- A law that punishes a named person or group without a trial. The Constitution forbids Congress to pass one.
- Taking
- The government seizing private property, which the Constitution allows only with fair payment.
The case after the case
- Standing
- The right to bring a case at all. A challenger has to show a real injury of their own, caused by what they’re challenging, that a court could fix.
- Deadline to sue
- The time limit for bringing a case, also called a statute of limitations. This law allows 90 days after the government action being challenged.
- Motion to dismiss
- Asking a court to end a case without deciding who is right, for a reason like filing too late or having no standing.
- Ripe
- Ready for a court. A challenge to something that hasn’t happened yet comes too early.
- Pseudonym
- A made-up name, here “John Doe,” that a court lets a party use to keep their identity off the public record.
- Certified index
- The government’s official list of what’s in the record behind the decision being challenged. Briefing usually follows it.
- Motion to govern
- The parties’ proposal to the court for how a case should go on from here.
- FOIA
- The Freedom of Information Act, which lets anyone ask a federal agency for its records, and sue if it refuses.
The stamp on a ruling
- Granted
- The court said yes to the request on this card, whichever side made it.
- Denied
- The court said no to the request on this card.
- Affirmed
- The court above agreed with the court below and left its ruling as it was.
- Referred
- The court didn’t decide the request yet. It passed it on to the judges who will decide the whole case.