TikTok Inc. v. Garland
604 U. S. ____ (2025) (2025)
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Rule of Law:
A federal law requiring the divestiture or banning of a social media platform controlled by a foreign adversary does not violate the First Amendment when it is content-neutral, serves an important government interest in national security by preventing data collection, and is narrowly tailored to achieve that interest under intermediate scrutiny.
Facts:
- TikTok is a social media platform launched in 2017 that allows users to create, publish, view, share, and interact with short videos, accumulating over 170 million users in the United States.
- TikTok's "For You" page uses a proprietary algorithm developed and maintained in China by its ultimate parent company, ByteDance Ltd., to tailor personalized content feeds based on user interactions.
- ByteDance Ltd. is a privately held company with operations in China, and is subject to Chinese laws requiring it to "assist or cooperate" with Chinese Government intelligence work and grant access and control over private data.
- In August 2020, President Trump issued an Executive Order finding TikTok a national security threat due to its data collection and susceptibility to Chinese Government influence, prohibiting certain transactions.
- President Trump subsequently ordered ByteDance Ltd. to divest its U.S. TikTok operations and user data, leading to negotiations with the Biden administration for a non-divestiture remedy.
- Throughout 2021 and 2022, ByteDance Ltd. negotiated with Executive Branch officials to develop a national security agreement, but the officials ultimately determined the proposed agreement did not adequately mitigate risks to U.S. national security, and negotiations stalled.
- Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act, which makes it unlawful for entities to provide services to "distribute, maintain, or update" designated "foreign adversary controlled applications" in the U.S.
- The Act expressly designates applications operated by ByteDance Ltd. or TikTok as "foreign adversary controlled applications," imposing prohibitions that take effect 270 days after enactment unless a "qualified divestiture" occurs.
Procedural Posture:
- In August 2020, President Trump issued an Executive Order finding TikTok a national security threat and prohibiting certain transactions; federal courts enjoined these prohibitions.
- President Trump then ordered ByteDance Ltd. to divest its U.S. TikTok operations; ByteDance Ltd. and TikTok Inc. filed suit in the D.C. Circuit challenging the constitutionality of this order, but the case was placed in abeyance for review by the Biden administration and negotiations.
- ByteDance Ltd. and TikTok Inc., along with two groups of TikTok users and creators (creator petitioners), filed petitions for review in the D.C. Circuit, challenging the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.
- The D.C. Circuit consolidated and denied the petitions, holding that the Act does not violate petitioners’ First Amendment rights, assuming strict scrutiny applied but finding the Act satisfied it.
- Chief Judge Srinivasan concurred in part and in the judgment, believing the Act was subject to intermediate scrutiny and was constitutional under that standard.
- The Supreme Court of the United States granted certiorari to decide whether the Act, as applied to petitioners, violates the First Amendment.
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Issue:
Does the Protecting Americans from Foreign Adversary Controlled Applications Act, which effectively bans the social media platform TikTok unless it undergoes a qualified divestiture from Chinese control, violate the First Amendment rights of TikTok and its users?
Opinions:
Majority - Per Curiam
No, the Protecting Americans from Foreign Adversary Controlled Applications Act does not violate the First Amendment rights of TikTok or its users because it is a content-neutral regulation that survives intermediate scrutiny. The Court assumes, without deciding, that the Act triggers First Amendment scrutiny because it imposes a disproportionate burden on expressive activities, effectively banning TikTok in the U.S. The Act's provisions are facially content neutral and justified by a content-neutral rationale: preventing China from collecting vast amounts of sensitive data from U.S. TikTok users. This justification is unrelated to the suppression of free speech and does not target particular speech content or viewpoint. The Court finds that the Act's TikTok-specific distinctions are justified by the platform's "special characteristics"—its scale, susceptibility to foreign adversary control, and vast data collection—and therefore do not trigger strict scrutiny. Applying intermediate scrutiny, the Court determines that preventing China from leveraging its control over ByteDance Ltd. to capture U.S. user data is an important government interest, especially given China's history of data accumulation for intelligence. The Court accords substantial deference to Congress's predictive judgments regarding national security threats. The Act is also sufficiently tailored because it directly and effectively serves the government's interest through a conditional ban, requiring a qualified divestiture rather than an outright prohibition, and is not substantially broader than necessary. The Court rejects petitioners' proposed less-restrictive alternatives, emphasizing that the government is afforded latitude in designing regulatory solutions for content-neutral interests. Finally, even if the government's "foreign adversary control" rationale were content-based, the Court concludes that Congress would have passed the Act based on the data collection justification alone, supported by the legislative record focusing overwhelmingly on these concerns.
Concurring in part and concurring in judgment - Sonia Sotomayor
Yes, I agree with the Court's judgment that the Act is constitutional, but I write separately because there is no need to "assume without deciding" that the Act implicates the First Amendment; it clearly does. TikTok's actions of compiling and curating content constitute expressive activity, and laws that disproportionately burden such activity are subject to heightened scrutiny under the First Amendment, as established in cases like Arcara v. Cloud Books, Inc. and Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue. The Act explicitly bars the distribution of TikTok's speech in the U.S. unless it undergoes divestiture, which is a direct burden. Furthermore, the Act limits TikTok's collaboration regarding its content recommendation algorithm even post-divestiture and implicates content creators' right to expressive association with their preferred publisher, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. These clear First Amendment implications necessitate scrutiny.
Concurring in judgment - Neil Gorsuch
Yes, I concur in the judgment that the Act is constitutional, but express several reservations given the expedited review process. I agree with the Court's decision to not endorse the government's "covert manipulation of content" justification for the law, as this concept is problematic under the First Amendment, which protects editorial discretion and the free flow of ideas, even if those ideas align with a foreign adversary. I also agree that the Court should not consider classified evidence withheld from petitioners, raising significant constitutional concerns about due process. While I have serious reservations about whether the law is "content neutral" and thus avoids strict scrutiny, I am persuaded that the Act serves a compelling government interest: preventing a foreign adversary from harvesting vast amounts of personal information from millions of Americans. The record establishes that TikTok collects extensive data, including from non-users, and Chinese law enables the PRC to compel ByteDance to surrender this data, which could be used for espionage or blackmail. Finally, the Act appears appropriately tailored, as Congress and the President spent years exploring alternatives with TikTok before concluding they were insufficient, with the record suggesting alternatives like warnings or data export bans would not effectively address the unique national security threats posed by a foreign adversary's control over TikTok's complex software and its potential to steal data.
Analysis:
This case reinforces the Supreme Court's approach to national security legislation impacting First Amendment rights, particularly in the digital age. By assuming First Amendment applicability but ultimately applying intermediate scrutiny, the Court signaled a willingness to balance free speech concerns with compelling government interests in national security. The emphasis on the "special characteristics" of TikTok (foreign adversary control, scale, sensitive data collection) creates a carve-out that may limit the direct precedential impact on other platforms, but it provides a framework for future challenges to similar legislation regarding foreign-controlled technology. The Court's deference to Congress's predictive judgments on national security threats also highlights the judiciary's cautious role in this sensitive area, particularly when a law is justified by content-neutral concerns like data privacy and espionage.
