Well, that was fast. In the blink of an eye last week, TikTok—the social-media platform used by over 170 million Americans but owned by a foreign company with connections to the Chinese government—went dark in the United States. This followed the Supreme Court’s per curiam decision in TikTok v. Garland (No. 24-565), upholding the “Protecting Americans from Foreign Adversary Controlled Applications Act” (PAFACA), which effectively required TikTok to cease operations in the United States unless it separated U.S. operations from Chinese control. And then, before many users even missed it, the platform was back, with a message stating: “Thanks for your patience and support. As a result of President Trump’s efforts, TikTok is back in the U.S.!”
This whirlwind was set in motion at the end of the first Trump administration—when the President issued an executive order prohibiting certain transactions involving TikTok’s Chinese parent company, ByteDance—and came to a stop (for now) on the eve of the second, when the still president-elect promised to issue an executive order delaying enforcement of the statute banning it. (President Biden had similarly stated that he would not enforce the ban in the waning hours of his term.) The politics surrounding this rapid turn of events have been exhaustively reported and are of little concern to us. What interests us is the fact that, while the Government may not currently be enforcing it, the Supreme Court has unanimously upheld a law that effectively eliminates one of the country’s most popular and widely used forums.
As noted, PAFACA was the culmination of several years’ worth of bipartisan concern about the relationship between TikTok and the Chinese government. The principal concern is that the app collects vast swaths of personal data from its users, including names, ages, phone numbers, IP addresses, social-network connections, and even the content of private messages. And in many instances, it not only collects the data of users (who have, knowingly or not, “consented” to giving up their data), but also of the individuals in the users’ “contacts”—people who may not themselves use TikTok at all. National security experts have warned that this data can easily be digested and used by China, a foreign adversary, because ByteDance, which owns TikToks’s algorithm is subject to Chinese laws requiring it to “assist or cooperate” with the Chinese government’s “intelligence work” and to provide the government with “access and control [of the] private data” the company holds. In addition, the U.S. government has expressed concern about a foreign adversary being able to control the algorithm that decides what tens of millions of U.S. citizens view and engage with on the app.
In light of these concerns, Congress enacted PAFACA in April 2024. The Act does not, strictly speaking, “ban” TikTok. But it makes it unlawful for any entity to provide services to “distribute, maintain, or update” a “foreign adversary controlled application” in the United States and specifically designates TikTok as such an entity. Given the significant penalties involved for entities that help maintain TikTok, there has been general agreement that the Act effectively bans TikTok unless it undergoes a “qualified divestiture,” and that it was not feasible for ByteDance to actually accomplish a qualified divestiture before the effective date of January 19th. While plainly targeted at TikTok, the Act similarly “bans” any other application that is “controlled by a foreign adversary,” provided that it enables users to generate, share, and view content and has more than a million monthly users. However, the Act carves out an exception for an application “whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.”
Needless to say, the Act posed an existential threat to TikTok, and also a significant potential hardship on users, particularly the significant number of users who rely on TikTok to make a living. So, TikTok Inc. (the U.S. entity that runs the app) and ByteDance (the Chinese parent company), along with two groups of TikTok users and creators, filed petitions for review in the D.C. Circuit challenging the Act’s constitutionality under the First Amendment. The D.C. Circuit consolidated and denied the petitions, holding that the Act does not violate the petitioners’ First Amendment rights. The petitioners then applied for injunctive relief in the Supreme Court and the Court construed the applications as petitions for certiorari and granted them. The case then advanced at a rapid pace: With the Act set to go into effect on January 19th, the Court granted cert on December 18th, held argument on January 10th, and issued its decision on January 17th.
In a per curiam opinion, the Court unanimously affirmed the D.C. Circuit and upheld the PAFACA Act. The essential question in the case—as in most First Amendment cases—was whether the Act is subject to First Amendment scrutiny and, if so, what degree of scrutiny. On the broader question, the Court (with the exception of Justice Sotomayor, who abstained from this portion of the opinion) observed that it is not obvious that the First Amendment applies at all to PAFACA, as it does not directly regulate protected expressive activity. It doesn’t actually ban TikTok and it does not directly burden the First Amendment rights of either TikTok or its users. The only party that is directly regulated—ByteDance—is simply required to divest from the platform, not shut it down. Nevertheless, the Court recognized that—given the complexity of divesting—the Act would have the indirect effect of shutting TikTok down, which does implicate the First Amendment rights of both TikTok and its users. Therefore, the Court “assume[d] without deciding that the challenged provisions … are subject to First Amendment scrutiny.”
The next question was: What level of scrutiny applies? As the Court observed, the general test for deciding whether to apply strict or intermediate scrutiny to a statute burdening speech is whether it is content-based or content-neutral. “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Content-neutral laws, by contrast, can be upheld “if [they] advance[] important governmental interests unrelated to the suppression of free speech and do[] not burden substantially more speech than necessary to further those interests.” Most of the Court (Justice Gorsuch excepted) agreed that, at least as applied to the petitioners, PAFACA is content-neutral and therefore subject to only intermediate scrutiny. The specific provisions challenged are facially content neutral, as they do not target any particular speech based on its content. Rather, they impose prohibitions on assisting or maintaining a specific application, TikTok, based upon national-security concerns having nothing to do with the content of speech the platform hosts. While the petitioners pointed out that the Act favored certain types of speech by exempting foreign-adversary controlled apps that primarily host “product reviews, business reviews, or travel information and reviews,” that was not the provision that the petitioners challenged. Finally, the Court concluded that the challenged provisions were supported by content-neutral justifications—namely, the desire to prevent China from collecting vast amounts of sensitive data. That justification also justified the TikTok-specific provisions of the Act, which might otherwise raise concerns that a particular platform is being targeted based on the speech it hosts or moderates. Here, the divestiture requirement was not “a subtle means of exercising content preference,” so the Court concluded that the Act is content-neutral and that strict scrutiny does not apply. In so doing, it stressed the narrowness of its holding, which rested on TikTok’s unique scale and susceptibility to the control of a foreign adversary.
Having established that the Act—or, more specifically the particular provisions of the Acts challenged by the petitioners—is content-neutral, the Court had little difficulty concluding that standard of review was satisfied. Even the petitioners agreed that “the Government has an important and well-grounded interest in preventing China from collecting the personal data of tens of millions of U.S. TikTok users.” While the petitioners contended that it was “unlikely” China would in fact compel TikTok to turn over user data (since it has more effective and efficient ways of spaying on Americans), the Court felt it must “accord substantial deference to the predictive judgments of Congress.” And in this case, the record reflected that China had already engaged in extensive efforts to accumulate datasets on U.S. persons. (The record may, in fact, reflect much more than that. The Government submitted classified evidence in support of the Act, which the petitioners were unable to review; the Court, however based its decision solely on the public record, “without reference to the classified evidence the Government filed below.”) The Court was less persuaded by the Government’s secondary interest in preventing China from controlling TikTok’s recommendation algorithm. That justification is arguably content-based, but the Court brushed it aside as the record made clear that the principal (and sufficient) justification was Congress’s well-supported concern about Chinese data-collection. And it concluded that—at least as applied to the petitioners (TikTok and certain TikTok users), the Act was “sufficiently tailored to address the Government’s interest.” While the petitioners suggested a number of less restrictive alternatives, the Court stressed that it affords “latitude” for the Government to design regulatory solutions when addressing content-neutral interests. As the challenged provisions are not “substantially broader than necessary” to address the Government’s data-collection concerns, it did not matter to the Court whether there may be other, less restrictive, regulatory paths to the Government’s content-neutral goal.
In sum, an effectively unanimous Court had little difficulty brushing aside the petitioners’ challenge, while taking care not to decide more than was necessary to dispose of this unique and important case. Two Justices separately concurred. Justice Sotomayor joined most of the Court’s opinion but would have directly held (rather than “assume[d] without deciding”) that the Act implicates the First Amendment, notwithstanding that it only indirectly burdens speech.
Justice Gorsuch concurred in the judgment only, stressing that, with only “a fortnight to resolve, and finally on the merits, a major First Amendment dispute affecting more than 170 million Americans,” the best he could do was to “sketch out only a few, and admittedly tentative, observations.” Those observations? (1) The Court was right not to endorse the Government’s asserted interest in preventing China from controlling TikTok’s algorithm, because “[o]ne man’s ‘cover content manipulation’ is another’s ‘editorial discretion,’” and Americans have a right to receive information, even if it is curated by a foreign adversary (and even, it seems Gorsuch would agree, if it is foreign propaganda). (2) The Court was right not to consider the Government’s classified evidence, which subverted the adversarial process. And, most significantly, (3) Gorsuch had “serious reservations” about whether the Act is in fact “content neutral” and thus escapes strict scrutiny. Justice Gorsuch has expressed a concern in the past that fussing over tiers of scrutiny can “do more to obscure than to clarify the ultimate constitutional questions.” Nevertheless, “whatever the appropriate tier of scrutiny,” Justice Gorsuch was “persuaded that the law before us seeks to serve a compelling interest” and that it “appears appropriately tailored to the problem it seeks to address.”
In the spirit of Justice Gorsuch, we’ll offer just two “tentative observations.” First, notwithstanding that the Court’s decision has in some respects been overtaken by events (including, in particular an Executive Order instructing the Department of Justice not to take any action to enforce the Act for 75 days), the Court’s decision is a pretty big deal. The Court has unanimously upheld a statute that effectively bans one of the country’s most widely used public forums, and the fact that the Government may not immediately enforce the Act doesn’t erase that significant decision. At a minimum, this means the Trump Administration will have the upper hand in any negotiations with TikTok/ByteDance over divestment, as the proverbial writing is on the wall. Second, and conversely, the decision is so full of caveats and “we need not decides” that it’s difficult to discern what impact it might have beyond the immediate confines of TikTok’s challenge. Most significantly, the Court avoided a potentially consequential decision on whether statutes like PAFACA—which might incidentally burden speech but are more directly focused on corporate structure—implicate the First Amendment at all. And even with respect to PAFACA itself, the Court did not address whether the Act would survive challenges from other entities that fall under its definition of entities controlled by foreign adversaries (but are not expressly singled out, like TikTok). As the Court implicitly noted, those entities might have a stronger argument that the Act is not content-neutral, since the provision defining foreign-adversary-controlled entities includes a content-specific carve-out for applications whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews. And the Court’s holding with respect to TikTok was expressly based on the unique scope of its data-collection powers and the national-security risks that may pose. In short, by emphasizing that “[o]ur analysis must be understood to be narrowly focused in light of the[] circumstances,” the Court may have been hanging a Bush v. Gore-like asterisk on the decision: “Not to be cited back to us in other contexts.”