FREE SPEECH
Does the Federal Ban on TikTok, an Application Owned by a Corporation with Significant Ties to China, Violate the First Amendment?
Does the Federal Ban on TikTok, an Application Owned by a Corporation with Significant Ties to China, Violate the First Amendment?
The Protecting Americans from Foreign Adversary Controlled Applications Act makes it “unlawful for any entity to distribute, maintain, or update” a “foreign adversary controlled application” in the United States. The act specifically applies to TikTok and its parent company ByteDance, which maintains significant operations in China. But the act provides that an application may be removed from the act’s coverage at any time if a “foreign adversary” no longer controls it and no longer has an “operational relationship” with it. The act takes effect with respect to TikTok on January 19, 2025.
TikTok, Inc. v. Garland
Docket No. 24-656
Argument Date: January 10, 2025
From: The D.C. Circuit
by Steven D. Schwinn, University of Illinois Chicago School of Law, Chicago, IL
As a general matter, a content-based regulation of speech violates the First Amendment unless the regulation is narrowly tailored to achieve a compelling government interest. Under this most demanding test, called strict scrutiny, most government regulations will fail.
Does the act regulate the content of speech at all, and, if so, is it narrowly tailored to meet the government’s national security interests?
In April 2024, Congress passed, and President Joe Biden signed, the Protecting Americans from Foreign Adversary Controlled Applications Act. The act makes it “unlawful for any entity to distribute, maintain, or update” a “foreign adversary controlled application” in the United States. Pub. L. No. 118-50, Div. H, 138 Stat. 955, § 2(a)(1).
The act defines “foreign adversary controlled application” as “a website, desktop application, mobile application, or augmented or immersive technology application that is operated, directly or indirectly,” by one of two distinct groups. The first group consists of ByteDance and related entities, including TikTok. § 2(g)(3)(A). ByteDance owns TikTok. ByteDance is a private corporation incorporated in the Cayman Islands and has significant operations in China. ByteDance is owned by institutional investors around the world, its own global workforce, and 21 percent by a Chinese national who resides in Singapore. (The parties characterize the relationship between ByteDance and the Chinese government differently.) TikTok, Inc. is an American corporation located in California.
The second group includes any “covered company” that is “controlled by a foreign adversary” (defined as China, Russia, North Korea, or Iran) and “determined by the President to present a significant threat to the national security….” § 2(g)(1), (3)(B), and (4). A “covered company” is a company that operates an application that allows users to interact with each other and has more than 1 million active monthly users, but not companies “whose primary purpose is to allow users to post product reviews, business reviews, or travel information or reviews.” § 2(g)(2). This describes many social-media applications like TikTok.
The act authorizes the attorney general to sue third-party service providers for civil penalties and declaratory and injunctive relief. § 2(d).
The act takes effect with respect to TikTok on January 19, 2025. § 2(a)(2). But it also provides that an application may be removed from the act’s coverage at any time if it executes a “qualified divestiture.” Under the act, a “qualified divestiture” means a transaction that the president determines will result in the application’s “no longer being controlled by a foreign adversary” and “precludes the establishment or maintenance of any operational relationship between the United States operations” of the application “and any formerly affiliated entities that are controlled by a foreign adversary.” § 2(g)(6).
As a practical matter, all this means that the act would effectively ban TikTok in the United States unless ByteDance sells TikTok to another company not controlled by a foreign adversary and with no “operational relationship” to TikTok’s U.S. operations before January 19, 2025.
ByteDance, TikTok, and others filed three petitions for review in the D.C. Circuit, arguing (as relevant here) that the act violates the First Amendment. (The act provides for exclusive judicial review in the D.C. Circuit.) The D.C. Circuit denied the petitions for review and later denied the petitioners’ motions for injunctions pending appeal. The Court then granted this expedited appeal, ordered the parties to submit simultaneous briefs, and scheduled oral arguments on January 10, 2025.
As a general matter, a content-based regulation of speech violates the First Amendment unless the regulation is narrowly tailored to achieve a compelling government interest. Under this most demanding test, called strict scrutiny, most government regulations will fail.
Here, the parties wrangle over whether the act regulates the content of speech at all. If it does, they wrangle further over whether the act is narrowly tailored to achieve the government’s two asserted national security interests:
Preventing a foreign adversary from collecting Americans’ data.
Preventing a foreign adversary from manipulating content on TikTok.
The government argues first that the act doesn’t even implicate the First Amendment. According to the government, that’s because the act simply prohibits foreign-adversary ownership and control of applications; it does not regulate speech. Moreover, the government contends that TikTok has no First Amendment right to be controlled by a foreign adversary, and that TikTok users have no First Amendment right to use an application controlled by a foreign adversary.
But even if the First Amendment applies, the government argues that it passes scrutiny. The government contends that the act is only subject to intermediate scrutiny (and not strict scrutiny), “because it is a content-neutral regulation of conduct that only incidentally affects protected speech.” The government says that its national security interests behind the act do not transform the act into a content-based regulation of speech. According to the government, its “interest in preventing a foreign adversary from harvesting Americans’ sensitive data does not involve speech at all.” Its “interest in preventing covert content manipulation by a foreign adversary seeks to prevent all such manipulation regardless of the content or viewpoint being advanced.”
That said, the government argues that the act would survive any level of scrutiny, including strict scrutiny. The government says that the act is “narrowly tailored” to advance its “compelling national-security interests in preventing mass data collection and covert content-manipulation by a foreign adversary.” As to the former interest, the government contends that the act “surgically address[es] the risk by requiring only that TikTok be divested from a company subject to [Chinese government] control, which could leave all protected expression on the platform unchanged.” As to the latter interest, the government asserts that “the Act requires only divestiture of TikTok.” The government claims that it needs to demonstrate that the act is narrowly tailored to serve just one of these interests, not both (even though the government says that the act is narrowly tailored to meet both). And it says that the petitioners’ proposed alternative methods to meet these national security interests do not, in fact, satisfy those interests.
Finally, the government argues that the Court has upheld other, “far more direct restrictions on speech under strict scrutiny,” including “a ban on certain communications to foreign terrorist organizations.” And it says that Congress was aware of constitutional concerns when it designed the act and so “limited the Act’s reach to the applications directly posing known national-security threats.” The government claims that the classified record in this case “describes the threat landscape in more detail and thus provides further support for the statute’s constitutionality.”
The petitioners counter that the act is subject to strict scrutiny. They say that TikTok “is an American company engaged in editorial curation for the U.S. TikTok platform,” and that its “expressive activity” is fully protected speech. Moreover, they say that TikTok’s relationship with ByteDance constitutes “expressive associat[ion]” that is also protected. “The severe burden imposed on this protected expression by banning Petitioners from operating the U.S. platform is thus undeniable.”
Moreover, the petitioners argue that the act burdens speech “for content-based and speaker-based reasons.” They say that the act covers applications based on their content, and that it “singles out TikTok for worse treatment than all other speakers.” The petitioners contend that Congress tailored the act this way based on its concern “that a foreign adversary might manipulate the mix of content on the TikTok platform to influence Americans’ views.”
The petitioners argue that the act fails under strict scrutiny, and even under intermediate scrutiny. They claim that the government’s interest in content manipulation “is either (1) an impermissible attempt to prohibit Americans from disseminating protected speech that may further foreign interests, or (2) an overbroad attempt to prevent ‘covert’ foreign influence without Congress even having considered whether the traditional remedy of disclosure would be ineffective.” They say that the government’s interest in data protection “does not work out because (1) the Government cannot show that Congress would have passed the Act for the non-content-based reason alone; and (2) the Act is woefully underinclusive as to data security since its scope is based on content.” The petitioners contend that Congress failed to consider “a host of other less-restrictive alternatives” to the TikTok-specific provision in the act.
Finally, the petitioners argue that the government “failed to justify treating TikTok worse than all other speakers.” They say that Congress had no good reason to single out TikTok and “subject[] it to more than the Act’s generally-applicable process and standard, which Congress itself deemed to adequately address alleged adversary-controlled applications.”
If the Court upholds the act, and if TikTok cannot execute a “qualified divestiture” by January 19 (as TikTok itself maintains), TikTok will effectively become unavailable in the United States. The petitioners claim that it “is technologically and commercially infeasible for TikTok Inc.” to severe its “operational relationship with ByteDance affiliates, ‘including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing’” before the January 19 deadline. According to the petitioners, “In short, if the Act’s prohibitions take effect, they will ‘render the TikTok platform inoperable in the United States.’”
That’s a big deal. Since TikTok launched in 2017, it has grown to more than 170 million American users every month, and more than 1 billion users worldwide. Today, according to the petitioners, TikTok is “one of the world’s most widely used speech platforms.” According to the petitioners, “[s]eventeen percent of U.S. adults regularly get news from TikTok—including 39 percent of adults younger than 30.” Notably, the platform even played an important role in the 2024 elections, at every level of the ballot. For example, videos by the two major presidential candidates racked up over 6 billion views. TikTok’s sweeping reach and impact are undeniable, and its loss in the U.S. market would be significant, whatever one thinks about it.
On the other hand, if the Court strikes the act as it applies to TikTok, the ruling could affect national security. The government says that TikTok’s connection to the Chinese government poses significant national security threats. According to the government, these include the threat that the Chinese government could collect sensitive information from TikTok users, and the threat that the Chinese government could manipulate TikTok’s content. Importantly, it claims that the classified record describes those threats in greater detail. If the Court strikes the act, these threats could materialize. (Note, however, that the petitioners challenge only the portion of the act that specifically targets ByteDance and TikTok—the first covered group, described above. The petitioners point out that the act contains a severance provision, so that if the Court strikes that portion, the second, general group (any “covered company” that is “controlled by a foreign adversary”) could remain on the books, and could cover TikTok, if the president—who will be President-Elect Trump by the time the Court rules—determined that it remained a national security threat. If so, this could mitigate the national security impact of a ruling in favor of the petitioners.) consider its lightning fast track at the Court. The D.C. Circuit upheld the act on December 6. The Court agreed to hear the appeal on December 18. It directed the parties to submit simultaneous briefs by December 27. And it set oral arguments for January 10. The Court does not usually move anywhere near this quickly. The speed of the case underscores its importance.
Notably, President-Elect Donald J. Trump filed an amicus brief opposing a ban on TikTok (he formerly supported a ban) and asking the Court to stay “the statutory deadline…to allow his incoming Administration the opportunity to seek a negotiation resolution of these questions.” He notes that he “alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged.”
This is an extraordinary request, with little or no legal support. Don’t expect the Court to entertain this.