First Steps of Free Speech Litigation: Crucial First Amendment Questions Prompted by TikTok v. Garland

ByteDance, TikTok, and a group of U.S. TikTok users and content creators argued that the ban violated their First Amendment rights. However, the Supreme Court disagreed, issuing a per curiam opinion supporting the “ban-or-sell” law. Yet the Supreme Court left a fundamental question in First Amendment litigation unaddressed by avoiding an in-depth discussion on who the relevant “speakers” were in the case and whether there was a “right to receive” the information in the social media context.

This article addresses what the Supreme Court’s ruling means for First Amendment litigation, looking specifically at the issues arising when foreign entities are involved, when the speech at issue exists only on a social media platform, when the speakers are individuals as opposed to governments, and when the audience may have a right to receive the information.

A Fundamental Question Left Unanswered

Despite the ruling, the Supreme Court sidestepped a crucial question: Is the First Amendment implicated? The Court “assume[d] without deciding” that the law was subject to First Amendment scrutiny. This assumption allowed the Court to unanimously conclude that the law withstood intermediate scrutiny under its First Amendment jurisprudence.

While the Court did not issue a direct holding based on whether the First Amendment applied, the opinion discussed, in dicta, circumstances under which the First Amendment may be implicated. The justices distinguished between laws governing corporate ownership abroad and those regulating expressive conduct. The Court stated, “a law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny.”

Key factors influencing this determination included the TikTok Act’s focus “on a foreign government, the congressionally determined adversary relationship between that foreign government and the United States, and the causal steps between the regulations and the alleged burden on protected speech.” These considerations, according to the Supreme Court, influence “whether First Amendment scrutiny applies” at all.

Ultimately, the majority bypassed addressing whether the regulated non-expressive conduct required heightened scrutiny. Instead, they assumed it did, without making a definitive ruling, and proceeded to evaluate the case under intermediate scrutiny. This leaves an open question of whether the government can adopt laws that would not survive First Amendment scrutiny as long as those laws only target foreign adversarial governments.

Although the decision was unanimous, Justice Sonia Sotomayor’s concurrence highlighted a division within the Court regarding whether the law warranted First Amendment scrutiny in the first place. She agreed that the law withstood intermediate scrutiny but argued there was no need to “assume” its applicability to the First Amendment. In her view, the law clearly “implicate[d] the First Amendment because” it restricts entities “from distributing TikTok’s speech in the United States” and affects content creators’ “right to associate” with their preferred publisher “for the purpose of speaking.”

While not deciding this fundamental issue, the majority opinion disagreed with Justice Sotomayor’s rationale. The majority reasoned that the law “does not regulate the creator petitioners at all” and affects only ByteDance and TikTok “through the divestiture requirement.”

During oral arguments, justices across the ideological spectrum questioned whether the law truly concerned content creators’ “expression” or was primarily about national security concerns over data collection by a foreign corporation. Chief Justice John Roberts, for example, noted that Congress was not really “concerned about the content” on TikTok but rather was “concerned about what the foreign adversary [was] doing.” Justice Ketanji Brown Jackson argued that the TikTok Act was not about speech in the first place. Instead, in Justice Jackson’s view, the law controlled TikTok’s “right of association” with a foreign entity. Finally, Justices Elena Kagan and Clarence Thomas observed that the law only addressed foreign ownership of TikTok, questioning how that can limit TikTok’s First Amendment speech.

Are You a First Amendment Speaker and Is Your Speech Protected?

TikTok v. Garland underscores an emerging divide over when First Amendment scrutiny should apply. The decision reminds both plaintiffs and defendants that, in addition to satisfying traditional constitutional standing in First Amendment cases, before a court can consider the merits of a free speech claim under heightened scrutiny, the plaintiff must demonstrate that the First Amendment protects the speech at issue. In TikTok v. Garland, the majority cast doubt on the First Amendment protections claimed by various purported “speakers.”

Foreign Entities

The Court first questioned whether ByteDance, a foreign-controlled and operated entity, had any First Amendment rights. Drawing on Agency for International Development v. Alliance for Open Society International Inc., the Court reiterated that “[f]oreign organizations operating abroad have no First Amendment rights.”

In Agency for International Development, the Court examined whether foreign affiliates of American companies operating overseas should enjoy the same First Amendment rights as their domestic counterparts. The plaintiffs argued that any compelled speech imposed on their foreign affiliates might be wrongly attributed to the American organizations, thus infringing on their First Amendment rights. They relied on cases where the First Amendment prevented the government from forcing one corporate speaker to host another’s speech.

But the Court rejected that argument, noting that the domestic entities voluntarily chose to affiliate with foreign entities. More importantly, these foreign organizations operating abroad “do not possess rights under the U.S. Constitution.” The fundamental principle remains that foreign organizations operating outside the United States lack First Amendment rights and cannot seek free speech protection.

Social Media and Content Moderation

TikTok v. Garland also implicates how the First Amendment interacts with U.S.-based social media companies and their content creators. The Supreme Court recently addressed this interplay in Moody v. NetChoice, LLC. In NetChoice, the Court examined whether the First Amendment applies to social media platforms engaging in content moderation. According to the Court, laws restricting “platforms’ selection, ordering, and labeling of” content creators’ posts infringe on those social media companies’ protected expression.

Drawing on precedent like Miami Herald Publishing Co. v. Tornillo, the Court reiterated that forcing a private entity to host speech with which it disagrees violates the First Amendment. In Tornillo, a Florida law requiring newspapers to provide a right of reply was struck down because it interfered with “exercise of editorial control and judgment.” A right of reply refers to an individual’s right to defend oneself against public criticism in that newspaper where the criticism was lodged. Forcing a newspaper or social media platform to run things like a right of reply violates that platform’s First Amendment editorial speech rights.

Applying that precedent to the social media context, the NetChoice Court emphasized that social media platforms, like traditional media, engage in expressive activities by curating and presenting third-party content—i.e., content moderation. Content moderation includes deciding “which posts to remove, label, or demote.” This conduct is expressive activity protected by the First Amendment because it involves “editorial judgments influencing the content of [their] feeds.”

Social media platforms do not lose First Amendment protection simply because they convey user-generated content. The platforms’ editorial choices contribute a “distinctive expressive offering” through “curating their feeds” and “combining ‘multifarious voices.’” The government, therefore, cannot mandate changes to these choices “to advance its own vision of ideological balance.”

The Supreme Court has also reminded litigants that content creators likewise have First Amendment protection for online posts. In Mahanoy Area School District v. B.L., a school suspended an angry cheerleader for her profanity-laden Snapchat post lamenting the fact that she failed to make the varsity cheer team. The school suspended her from the junior varsity cheer squad for a year, citing violations of team and school rules. The Supreme Court held that the suspension impermissibly infringed on the cheerleader’s off-campus free speech rights.

The majority first acknowledged that while schools can regulate some “off-campus speech,” the cheerleader’s suspension was unjustified. Students maintain First Amendment rights even on school grounds, but First Amendment protection may be diminished at school given “that schools at times stand in loco parentis, i.e., in the place of parents.” Off-campus speech, however, “will normally fall within the zone of parental, rather than school-related, responsibility.” Given that the First Amendment–protected online speech occurred far from the school setting and did not disrupt school activities, the Court held that the cheerleader’s suspension violated the First Amendment.

The Right to Receive Information

A final First Amendment theme mentioned in passing, though not discussed, by the Court in TikTok v. Garland was whether the right to receive information under the First Amendment was implicated. The Supreme Court did not directly address the question raised by TikTok: whether the “ban-or-sell” law violated the First Amendment rights of TikTok users—not just content creators—to access “a distinct medium for expression, associat[e] with another speaker or preferred editor, and recei[ve] information and ideas.”

The Court previously noted in Martin v. City of Struthers that the First Amendment protects one’s “right to receive” literature, just as “freedom embraces the right to distribute literature.” Along similar lines, in Lamont v. Postmaster General of United States, the Court held that imposing an “affirmative obligation” on plaintiffs to request access to certain literature would have an unconstitutional “deterrent effect” on speech. The Supreme Court in TikTok declined to decide whether the First Amendment “right to receive” extends into the social media context.

The Supreme Court has held that this right-to-receive principle applies to one’s private home. In Stanley v. Georgia, it overturned a law that made it a crime to possess pornographic films in one’s home. The Court reasoned, “this right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” That First Amendment right, therefore, enables individuals, without government intervention, to “satisfy [their] intellectual and emotional needs in the privacy of [their] own home.”

Individuals, according to Stanley, even have the right to privately view materials whose public distribution could be banned under Roth v. United States, a case that permitted laws restricting the distribution of obscene materials. Therefore, in Stanley, it seemed relevant that the information at issue was being received in a private rather than a public setting. The First Amendment right to receive information, obscene or otherwise, in one’s own home has not been seriously questioned since Stanley.

But how far should Stanley and Martin reach? On the one hand, the Supreme Court has emphasized the narrow application of Stanley. In United States v. 12 200-Foot Reels of Super 8mm. Film, for example, the Court questioned how far the right to receive information extends beyond the home. It cautioned against “overlook[ing] the explicitly narrow and precisely delineated privacy right on which Stanley rests. That holding reflects no more than what Mr. Justice Harlan characterized as the law’s ‘solicitude to protect the privacies of the life within (the home).’”

On the other hand, three justices in a concurring opinion to Board of Education, Island Trees Union Free School District No. 26 v. Pico expressed interest in extending Stanley’s “right to receive information” from the private home setting to the shelves of a public school library. In Pico, three justices argued that the First Amendment right to receive information articulated in Stanley should protect students’ rights to receive particular books in school libraries because “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”

That said, only three justices joined that argument in Pico, and no Supreme Court case has discussed the matter since.

Is It Unprotected Government Speech?

Sometimes the speech at issue in First Amendment litigation is, in fact, government speech, which does not carry any First Amendment implications. The en banc Fifth Circuit is currently addressing whether a public library’s decision to remove books qualifies as such government speech, or alternatively whether library patrons have a free speech right to receive information.

In that case, Little v. Llano County, a panel majority applied First Amendment scrutiny to a public librarian’s book removal decision, citing patrons’ free speech right to “receive information and ideas” from books at public libraries. The majority opinion in the since-vacated Llano County decision would have simply extended Stanley’s First Amendment protection onto library patrons’ rights to have public library shelves stocked with their books of choice.

The dissent, however, argued the First Amendment was not implicated in that case because public library patrons do not have the free speech right to receive every book they wish to read at a public library. Instead, according to the dissent, the public librarian’s curation choices “are government speech, to which the Free Speech Clause does not apply.”

The dissent in Llano County cited three opinions from separate circuits holding there was no First Amendment protection when the speaker was the government rather than a person.

In Sutliffe v. Epping School District, for instance, a town’s decision to not include a nonprofit group’s hyperlink on the town’s website did not implicate the First Amendment because the decision of what to include on the town’s own website was “an expressive act by the government.”

In Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources, similarly, a state agency’s decision to not place a nonprofit group’s two-page pamphlet about asbestos on display racks in state parks did not implicate the First Amendment. Rather, the agency’s selection of materials to be placed on display racks was expressive and unprotected government speech.

Finally, in People for the Ethical Treatment of Animals, Inc. v. Gittens, a public art program solicited designs for sculptures of animals to be displayed around the District of Columbia. The plaintiff animal rights activist sued the district for violating its free speech rights by rejecting a design displaying “a sad, shackled circus elephant with a trainer poking a sharp stick at him.” The D.C. Circuit rejected First Amendment implications because the district itself was speaking by choosing some designs over others. The court noted that the decision to include certain exhibits over others is the same as in the public library scenario, where “the government speaks through its selection of which books to put on the shelves and which books to exclude.”

These cases demonstrate that one’s right to receive information or ability to speak in a public setting may not be protected First Amendment speech. If the government provides the platform—such as a display rack, library shelf, or public art program—then the government may be the speaker, removing it from the scope of First Amendment protection.

The Importance of Identifying the “Speaker”

TikTok v. Garland raised (but punted on) on a common issue in First Amendment litigation: determining who the “speaker” is in free speech clause cases. That issue is crucial for asserting or defending free speech claims. Litigants must assess whether a speaker’s free speech rights are even implicated to justify heightened First Amendment scrutiny. When drafting a free speech complaint or defending an action, it is vital to consider the interplay of facts, including whether foreign entities are involved, the context of social media, whether the speakers are individuals or the government, and whether the right to receive this information is implicated.