Welcome back, Deadline: Legal Newsletter readers. And thanks to Jessica Levinson for guest writing last week's recap on Donald Trump's New York sentencing. This week was packed with legal news ahead of Trump's inauguration on Monday — so let's jump right in.
TikTok lost its Supreme Court battle against a U.S. ban that's set to start Sunday, but it still might win the political war. The justices rejected a First Amendment challenge from the popular social media app, citing national security fears of Chinese control. But the app's fate is unclear as Trump returns to the White House with an apparent openness to keeping TikTok alive. In a video posted to the app after the ruling, TikTok CEO Shou Chew – who's expected to attend Trump's inauguration as an honored guest — praised the president-elect for his "commitment to work with us to find a solution that keeps TikTok available in the United States."
The First Amendment also featured in a SCOTUS hearing this week involving pornography. Texas is defending a state law requiring age verification to access sexual content online, and the adult industry raised a free speech challenge. One of the more memorable lines from the hearing was Justice Samuel Alito asking how the popular website Pornhub compares to the old Playboy magazine. We expect a ruling by July in the case with vast implications for constitutional rights.
The justices added a new batch of appeals to review, including a case about LGBTQ-themed books. The case brought by a religious rights group asks the court to resolve a contentious question: "Do public schools burden parents' religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents' religious convictions and without notice or opportunity to opt out?"
And we finally got to see Jack Smith's report — the volume on the federal election interference case, anyway. Attorney General Merrick Garland released that part of the special counsel's report, and one interesting aspect was Smith's explanation for not alleging insurrection. A conviction under that charge could have disqualified Trump from office. But of course, the Supreme Court's immunity ruling, which Smith subtly critiqued in his report, would have blocked a trial on any charges before the election.
Smith's classified documents volume is still secret. That's partly because Garland agreed to shelve it while the DOJ tries to revive charges against former Trump co-defendants Walt Nauta and Carlos De Oliveira. The legal concern is that it could unduly prejudice defendants who might still face a jury trial. Recall that Trump-appointed Judge Aileen Cannon dismissed the documents case last year, and DOJ withdrew its appeal on Trump's case after the election, due to a federal policy against prosecuting sitting presidents. While public release of the report isn't imminent, Cannon presided over litigation this week about whether Garland can share it secretly with select members of Congress, a matter that prosecutors argued is none of the judge's business. Nonetheless, she held a hearing Friday and was reportedly skeptical of DOJ's urgency to share the report with Congress.
Read the rest of this week's legal rundown here.
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