TikTok, Inc. v. Garland

LII note: The U.S Supreme Court has now decided TikTok, Inc. v. Garland

Issues

Does the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to TikTok, violate the First Amendment?

This case asks the Supreme Court to determine if the Protecting Americans from Foreign Adversary Controlled Applications Act violates the First Amendment. TikTok claims that its American subsidiary TikTok Inc. is protected by the First Amendment and that the Act is subject to strict scrutiny. TikTok argues that the government’s purported interests are facially deficient and not narrowly tailored. On the other hand, Attorney General Merrick Garland contends TikTok’s U.S. subsidiary does not grant it First Amendment protections, and even if it does the Act is not subject to heightened scrutiny. Further, Garland asserts that the Act promotes two compelling national security interests and is narrowly tailored. The outcome of this case has significant implications for foreign relations, the proper scope of Congress’s ability to regulate speech, and civil rights.

Questions as Framed for the Court by the Parties

Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

Facts

TikTok Inc.is a U.S. corporation that operates the social-media platform TikTok domestically. The TikTok platform is owned by ByteDance, a company incorporated in the Cayman Islands and headquartered in China. TikTok has 170 million monthly users in the United States. The application’s algorithm, or recommendation engine, selects specific videos to show each user. ByteDance developed the original source code for this algorithm and continues to refine it.

Concerns about the Chinese government’s influence over TikTok began in 2018 when ByteDance released the platform in the United States. In 2019, President Trump issued Executive Order 13873 , declaring a national emergency to combat foreign adversaries’ exploitation of technology. Subsequently, the Committee on Foreign Investment in the United States began investigating ByteDance’s potential national security risks. In 2022, President Biden withdrew Trump’s executive order and issued Executive Order 14034 , recommending legislative actions to protect user information from foreign adversaries that own the applications.

In 2021 and 2022, TikTok submitted iterations of their proposed National Security Agreement (“NSA”) to respond to the government’s concerns. The Executive Branch deemed the NSA insufficient to mitigate ByteDance’s national security risks. Most importantly, under the NSA, data of U.S. users would still be shared with China, and ByteDance would retain control over TikTok in the United States. The Executive Branch decided divestment would best address national security concerns.

Congress passed the Protecting Americans from Foreign Adversary Applications Act (“Act”); and, on April 24, 2024, President Biden signed the Act into law. The Act identifies the People’s Republic of China as well as three other countries as foreign adversaries of the United States. The Act prohibits the distribution or maintenance of controlled applications by foreign adversaries. The Act specifically names TikTok and ByteDance. Section 2(c) of the Act creates an exemption for qualified divestitures , allowing ByteDance to sell the domestic subsidiary of TikTok Inc. The Act bans TikTok starting on January 19, 2025, unless ByteDance divests.

After the Act’s passage, TikTok and ByteDance, BASED Politics, and TikTok creators (“Firebaugh”) filed suit against the United States seeking an injunction and a declaratory judgment that the Act was unconstitutional. These three actions were brought before, and then consolidated by, the US Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”). The D.C. Circuit denied each of the petitions. It held that the Act permissibly restricted a “foreign adversary nation” in its ability to gather data on American citizens through TikTok.

The D.C. Circuit, “assumed without deciding” that strict scrutiny applied to the Act and found it constitutional. TikTok petitioned the United States Supreme Court for a writ of certiorari , seeking review of whether the Act violates the First Amendment. On December 18 th , 2024, the Court granted a review of this question.

Analysis

LEVEL OF FIRST AMENDMENT SCRUTINY

TikTok claims the Act violates the First Amendment. TikTok explains that U.S. subsidiary TikTok Inc. is legally separate from its foreign parent company. As a result, TikTok argues that TikTok Inc. has its own First Amendment rights. TikTok asserts that the Act burdens its protected expression by classifying it as a banned foreign adversary-controlled application simply because ByteDance operates it. TikTok argues that even a qualified divestiture under the Act causes expressive harm, equating divestiture to imposing the death penalty on the app. TikTok asserts that divestiture would isolate American users from global content and make the domestic platform less competitive.

TikTok argues that the Act is content and speaker based, which warrants strict scrutiny. TikTok holds that the Act is content based because the government justifies the Act by referring to the content of TikTok’s speech. TikTok claims that the government’s interest in preventing content manipulation by China directly targets content advancing China’s goals. TikTok maintains that the Act distinguishes between general content-sharing applications, like TikTok, and platforms focused on specific content like travel information. TikTok contends that because the Act explicitly names TikTok, it is a speaker-based restriction subject to strict scrutiny. Further, TikTok asserts that the Act does not pass strict scrutiny. TikTok distinguishes the instances in which the Court has upheld speech restrictions under strict scrutiny by claiming that the Act is broader and merely a prophylactic response to a potential risk. TikTok asserts that the Act also fails under the more permissive intermediate scrutiny , which demands less important goals and less strict tailoring.

TikTok content creator Firebaugh argues that the Act impairs Americans’ First Amendment freedom to communicate “through their chosen medium.” Firebaugh contends that TikTok offers an unparalleled platform for expression, underscoring the fact that users have achieved greater success with their content on this specific app. Firebaugh asserts that the Act also implicates users’ First Amendment right to select the editor and publisher of their content. Like how American authors can choose to work with German-owned Penguin Books to publish their work, Firebaugh argues that the Court must protect creator’s right to work with TikTok. Moreover, Firebaugh asserts that the Act prevents users from exercising their First Amendment right to receive information from TikTok.

On the other hand, Attorney General Merrick Garland (“Garland”) claims that the Act does not infringe on the First Amendment. First, Garland states that ByteDance has no First Amendment rights because it is a foreign organization. Next, Garland says that TikTok has no First Amendment claim because the Act focuses on the content manipulation risk from ByteDance’s algorithm and recommendation engine. The U.S. subsidiary does not speak for itself, Garland asserts, but rather serves as “a compelled mouthpiece for ByteDance’s speech.” Garland argues that the Act does not affect the U.S. subsidiary’s speech, because it allows a post-divestiture TikTok to use the same recommendation engine.

Further, Garland argues that the Act does not regulate the speech of TikTok users in any capacity. Garland maintains that the Act only regulates social media providers, not users’ free speech rights on other social media platforms or post-divestiture TikTok. Garland notes that if ByteDance fails to divest TikTok, affecting users’ speech by eliminating the app in the United States, ByteDance’s actions will directly cause this effect. This result of ByteDance’s decision, Garland contends, does not implicate the First Amendment.

Garland claims that even if the Act does implicate the First Amendment, strict scrutiny would not apply. Garland argues that because the Act is a neutral regulation of content with only an incidental burden on expression, intermediate scrutiny at most would be appropriate. First, Garland contends that the Act does not target constitutionally protected speech but instead addresses the manipulation of content by a foreign adversary. Thus, Garland posits that any burden on speech is merely incidental. Second, Garland argues that the Act is entirely content-neutral. Garland explains that the Act equally targets anti-China, pro-U.S. and pro-China, anti-U.S. content manipulation efforts by China. Third, Garland maintains that the Act is at most a time, place, or manner restriction where ample alternative communication methods exist. Garland also stresses that TikTok overstates the likelihood that ByteDance squanders the opportunity to divest the platform.

WEIGHING GOVERNMENT INTERESTS

TikTok claims that the Act’s purported government interests in restricting speech are facially deficient. TikTok contends that the government’s interest in preventing the manipulation of content on the app ignores that TikTok Inc. is a domestic speaker that chooses how to present its content. TikTok argues that banning its app due to foreign influence over the algorithm would be like prohibiting foreign-made political propaganda films, which the government could not do.

Additionally, TikTok claims that the government’s alleged interest in protecting American’s data is insufficient. TikTok argues that the Act’s primary purpose is to target manipulation of content by China. TikTok points to the fact that the Act only applies to certain apps and allows divestiture only if the foreign owner retains no influence over the recommendation algorithm. TikTok maintains that even if Congress passed the Act in part to protect users’ data, the government cannot provide the required proof that this was Congress’s sole motivation.

Conversely, Garland asserts that the Act promotes two key compelling government interests. First, Garland claims the Act addresses the risk of a foreign adversary manipulating users’ content. Garland explains that the Act does not prevent the display of identical content and viewpoints on post-divestiture TikTok. Garland argues the Act addresses China’s ability to manipulate the recommendation engine rather than targeting specific content. Garland references statutes allowing the government to block corporate mergers as examples where Congress has previously taken necessary action to diminish national security risks from foreign adversaries. Next, Garland contends that the government has a compelling interest in protecting American data from China. Garland highlights prolonged efforts by China to engage in cyber espionage against the U.S. government, including stealing the information of 147 million Americans from a credit-reporting agency.

Further, Garland explains that the Chinese government can require the cooperation of U.S. subsidiaries of Chinese companies and can use this as a strategy for cyber espionage. Garland argues that the Act thus responds to the legitimate government interest in preventing ByteDance from cooperating with China to collect the data of American citizens. Not only does TikTok collect data on location information, Garland maintains, but the app also tracks users’ images, metadata, and biometric information.

WHETHER THE ACT IS NARROWLY TAILORED

TikTok argues that the Act is not narrowly tailored because less speech-restrictive alternatives exist. TikTok claims the government showed no evidence of considering alternatives. TikTok suggests disclosure as a mechanism for alerting citizens to potential cyber espionage pursued through the platform. TikTok points out that the Court has found disclosure requirements to be less restrictive of First Amendment rights. TikTok also asserts that the government did not consider heightened measures for data protection of online platforms. Lastly, TikTok argues that no evidence shows Congress examined and found the National Security Agreement inadequate.

Conversely, Garland maintains that the Act is narrowly tailored to adequately safeguard compelling government interests. Garland asserts that the Act aims to eliminate China’s control over the app to prevent the exchange of information from ByteDance to the Chinese government. Garland contends that divestiture aims to best protect user data from foreign adversaries. Garland also counters that TikTok’s proposed alternative solutions fail to sufficiently remedy the government’s concerns. Garland argues that disclosure does not address the risk of the Chinese government requiring ByteDance to share user data.

Discussion

SCOPE OF CONGRESSIONAL POWER AND ITS IMPLICATIONS

In Support of TikTok, the CATO Institute claims upholding the Act on content manipulation grounds would effectively give Congress the power to decide what is true. The CATO Institute argues that such power would make it harder for Americans to ascertain the truth of certain speech by preventing free discussion and opening the door for accidental censorship of true statements—both of which would be exacerbated by the government’s tendency to twist expression in its favor. Further, the CATO Institute asserts that, in some cases, Congress would be able to maliciously censor disfavored speech by cherry-picking particular falsehoods as a justification to shut down certain sites.

Additionally, Donald J. Trump, in support of neither party, contends that the Act encroaches on the Executive authority to act as the exclusive representative of the United States in foreign affairs. Similarly, Professor Milton Mueller, in support of TikTok, argues that imposing a flat ban on TikTok without considering less restrictive alternatives will impair America’s foreign relations by discrediting America’s status as a beacon of free speech and potentially causing retaliatory measures from trade partners.

Conversely, Chairman of the House Committee on the Chinese Communist Party Representative John Moolenaar, in support of Garland, claims that the Act is within Congress’s constitutional powers to regulate foreign and domestic commerce. The Act, Moolenaar maintains, is supported by extensive legislative fact-finding showing that TikTok poses a substantial national security threat. Concerning this threat, Moolenaar argues that the Act is simply the next step in a longstanding history of congressional legislation combatting foreign control of American companies.

Senator Mitch McConnell claims that TikTok’s suit is a merely delay tactic designed to drag out divestiture until the incoming presidential administration, who may be friendlier to TikTok, takes office. McConnell contends the Act was backed by two consecutive presidential administrations and the divestiture date has already been extended once before. Therefore, McConnell argues that the Supreme Court should see through this last-minute attempt to game the system.

RELIANCE ON NATIONAL SECURITY JUSTIFICATIONS

In support of TikTok, the American Civil Liberties Union (“ACLU”) contends that national security justifications should trigger increased vigilance because Congress may overlook constitutional rights in its haste to protect national security. The ACLU claims that allowing the Act to stand would erode the strict scrutiny standard.

Asian Americans Advancing Justice (“AAJC”), in support of TikTok, maintains that deference to national security has historically supported appalling civil rights violations directed at Asian Americans, such as the internment camps of World War II. This history, AAJC argues, causes Asian Americans to fear participating in public discourse; and, the Act would further suppress the voices of an already marginalized group. Further, AAJC contends that approving the Act would incorporate Congress’s discriminatory policies into modern First Amendment jurisprudence.

On the other hand, Advancing American Freedom (“AAF”), in support of Garland, argues that finding the Act unconstitutional would make it unfeasible to prevent foreign governments from interfering with domestic speech through noncoercive means. Allowing this interference, AAF posits, would turn the First Amendment on its head.

Further, AAF asserts that the Act primarily affects the Chinese Communist Party, which it describes as a foreign adversary and proven enemy of free speech. AAF argues that, for the United States to continue to be a global beacon of free speech, its public discourse must be protected from foreign corruption. AAF contends that an adversary’s hostile actions should not be protected by the law when that same adversary patently disregards “the law and the civilization on which it rests.”

Conclusion

Authors

Written by: Alexandra Fertig and Garrett Taylor

Edited by: Alexander Strohl

Additional Resources