TikTok Inc. v. Garland, 2025 U.S. LEXIS 366 (Supreme Court January 17, 2025)( Roberts, Thomas, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, Jackson)
On January 19th, 2025, the Protecting Americans from Foreign Adversary Controlled Applications Act will make in unlawful for companies in the United States to provide services, distribute, maintain, or update the social media platform Tik-Tok, unless U.S. Operation of the platform is severed from Chinese control. The question is whether this violates the 1st Amendment. The Court determined that the standard of review would be intermediate scrutiny. The Act provides two means by which an application may be designated an “foreign adversary-controlled application”.
First the Act expressly designates any application that is operated, directly or indirectly, by ByteDance Limited or Tik-Tik or subsidiary thereof.
Second, the Act establishes a general designation framework. The Act prohibition takes effect 270 days after the application is designated a foreign adversary-controlled application. The Act exempts a foreign adversary-controlled application if the application undergoes a qualified divestiture. 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 1st Amendment scrutiny. The Court has not previously articulated a clear framework determining whether a regulation of non-expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review. “We need not do so here.”
The Court assumes without deciding that the challenged provisions fall within this category and is subject to first amendment scrutiny. As applied to petitioners here the challenge provisions are facially content neutral and are justified by a content-neutral rational. The question before the Court is whether the Act violates the 1st Amendment as applied to petitioners. Strict scrutiny is not triggered. This holding is narrow. Data collection and analysis is a common practice in the digital age. Tik-Tok’s scale and susceptibility to foreign adversary control, together with vast swaths of sensitive data the platform collects, justifies differential treatment to address the governments national security concerns. A law targeting any other speaker would by necessity entail a distinct inquiry in separate considerations. No more than intermediate scrutiny is in order. As applied to petitioners, the Act satisfies intermediate scrutiny. The challenge provisions further an important government interest unrelated to the suppression of free expression and do not burden substantially more speech than necessary to further that interest.
There is no doubt that more than 170 million Americans receive a distinctive and expressive outlet for expression, means of engagement, and source of community. But Congress has determined that divestiture is necessary to address well-supported national security concerns. First Amendment is not violated.