Welcome to scot Discust, a project of the Federalist Society for Law and Public Policy Studies. Our contributors joined us from around the country to bring you expert commentary on US Supreme Court cases as they are argued and the decisions are issued. The Federalist Society takes no position on particular legal or public policy issues. All expressions are those of the speaker. Hello, and welcome to SCO Discust. I'm your host, Kyle hammernis On, behalf of the faculty division
of the Federalist Society. We are here today to discuss TikTok versus Garland, which was decided by the Court on January seventeenth, twenty twenty five. It is my honored to introduce our guests today. D'arpana Chef d'arpana is a public interest litigator specializing in constitutional cases to protect free expression, property rights, economic liberty, and other individual liberties. She also has served as Vice president of Litigation for their found
for Individual Rights and Expression for four years. And with that, I'd like to hand things that we try to guess.
Great well.
Thank you so much for that kind introduction, and it's a pleasure to be here to talk about this important case. The court upheld the federal law that would conditionally ban TikTok in the United States if the applications of the apps Chinese parent company byte Dance did not sell to US assets. So notably, the court assumed without deciding that as a threshold matter, the law triggered First Amendment scrutiny.
And I'll dive into this aspect in a little more detail later, but the takeaway here is that if the.
Court decided the law did not trigger the First.
Amendment, then that would have sort of been the end of the analysis, the end of the case. The court then concluded that the challenge provisions were content neutral regulations, meaning that they're not regulations that targeted the content of the expression. If it had been, that would have triggered the highest level of scrutiny strict scrutiny, meaning the law would have had to be narrowly tailored to further a
compelling government interest. But because the law is content neutral, the court applied intermediate scrutiny and ruled that it satisfied this standard because the law further the government's important interest in protecting Americans data.
From a foreign adversary.
Justices Soda Mayora and Justice Corsich issued separate concurrences.
But before we.
Get into the kind of the details there at the outset, I wanted to note that how narrow the Court's opinion is, and it's really limited to the unique facts in this case. There were a lot of a meekest brief, a lot of interest in this case on all sides, and I think that the Court did a good job and really narrowing its ruling to the unique facts of this case. For one, you know, the Court notes that it involves
quote new and transformative technology. It's a case that involves app that's owned and controlled by an undisputed foreign adversary, therefore implicates grave national security concerns, and it involves a largely unprecedented regulation. You know this, this act of forcing divestiture is you know, without precedent in previous years, and it's the culmination of five years of the government's efforts to address this national security problem, involving two separate administrations.
And then of course you have the.
Whole procedural history involving a very expedited consideration at several places, both in the Court's opinion and Justice cours of just concurrence. They emphasize that the court had just two weeks to review the briefing, hear arguments, and decide the case. So with that background, let's look a little more closely at the facts which are integral to the opinions issued today. So for those who might not know, uh TikTok is a social media platform that was launched in twenty seventeen.
It has over one hundred and seventy.
Million users just in the United States and over a billion users worldwide. And on TikTok, people create and publish videos that can be overlaid with audio or texts, so it's an expressive medium. Its parent company is Byteedance, which is a Chinese company that owns the platform's proprietary algorithm. Now that algorithm is I guess the secret sauce. It recommends videos to a user based on the user's interactions
with the platform. Now, under Chinese law, byte Dance is required to share its data and assist and cooperate with the Chinese government's intelligence work. Therein lies the national security concerns. Now, the Court devotes quite a few pages to detailing the background of this law that involve five years of the federal government trying to address the concern that TikTok automatically
captures vast loss of information from its users. That information includes the names, ages, phone numbers, phone contacts, social network connections, precise location, internet addresses, the device used, the content of the messages, and even keystroke patterns. And so in the five years leading up to this law you had. In August twenty twenty, under President Trump, there was an executive order to.
Basically do the same kind of thing and require.
Protection of Americans data, and there was years of negotiation with the Executive branch to resolve these national security concerns. Those negotiations stall and it never resulted any kind of final agreement on the heels of that Congress and acts, the Protecting Americans from Foreign Adversary Controlled Applications Act, which is the law at issue here, and it requires the divestger of TikTok within two hundred and seventy days of
the act's passage. The Act excludes, importantly applications other apps that have the primary purpose of posting product, business, or travel information and reviews. The case at present is basically two cases. They are consolidated cases. Consolidated cases one brought by TikTok and byteedance, and the other brought by a group of TikTok.
Users and creators.
And these petitioners claim that the federal law as applied to them violates the First Amendment. Now, the DC Circuit upheld the law on applying strict scrutiny, and the Chief judge their judge Treaty Vason concurred in that result, but
would have upheld the law under intermediate scrutiny. The Court granted start in this case on December eighteenth and held oral argument last Friday, January tenth, and basically before or the court it had three options whether that can strike down the law, uphold the law, or stay the law, which is one of the anekest briefsume that was filed by the President and President of the incoming President Trump to stay the law to give the administration a little
more time to try to work out some kind of deal. Now, the threshold question in this case is whether the challenge provisions are even subject to the First Amendment. Now Here, the court assumes, but doesn't decide, that the First Amendment is implicated.
In a footnote, the court clarifies.
That to the extent, well to the extent any clarification is even needed. Foreign entities operating abroad do not have First Amendment rights. So any expressive activity by byteedance that's occurring abroad is not protected by the First Amendment.
And that's an important point.
That distinguishes, I think, a lot of the other hypotheticals and things that were brought up in oral argument.
Next, the Court.
Notes that they're at least two ways in which the First Amendment could be implicated and therefore trigger heightened scrutinary heightened scrutiny. Without that, a law must only be rationally related to a legitimate government interest. So the first way the petitioners argue is that the law regulates expressive conduct. So listeners might be familiar with the O'Brien standard.
This is the case of US versus.
O'Brien, which upheld the law criminalizing the burning of a draft card under intermediate scrutinary under intermediate scrutiny because the burning of the draft card is expressive conduct. Now, the Court rejects this argument, saying it's not clear that the Act itself directly regulates protected expressive activity. The law doesn't regulate TikTok users at all, and it's only regulating the
corporate control of TikTok. And petitioners quote have not identified any case in which this Court has treated a regulation of corporate control as a direct regulation of expressive activity or semi expressive conduct, and the Court hesitates to break that new ground in this unique case.
So again the Court highlighting what a unique case this is, and you know, kind of limiting its holding.
It's worth noting that the government's brief points out that under the petitioner's argument, if you have any law.
That implicates.
Expressive activity, then if that triggers heightened scrutiny scrutiny, then you would also, for example, antitrust laws could be enforced against social media companies and those laws would be subject to heightened First Amendment scrutiny just because it triggers it affects the social media companies and their expression. The second way the petitioners argue that the law triggers First Amendment scrutiny is that the law imposes a disproportionate burden on
protected its expression. And there's a number of facets to this. It burdens the generation of content, it burdens the moderation of content, It burdens access.
To a distinct communication medium.
It burdens the expressive association rights, so the right to associate with specific speakers, and it burdens the right to receive information and ideas. And the Court notably finds that it has recognized all of these facets as protected First Amendment interests. Importantly, the Court says, and I quote, an effective ban on a social media platform with one hundred and seventy million US users certainly burdens those users expressive activity in a non trivial way.
But the Court notes that it has.
Not articulated a clear framework for determining when regulation of non expressive conduct that disproportionately burdens those engaged in expressive activity triggers heightened re view, and it declines to do so in this case. And so again the Court is
emphasizing the narrowness of its ruling. It specifically says that a law targeting foreign adversaries control over communications platform is in many ways different than the kind of regulations of non expressive activity that the Court has subjected to First Amendment scrutiny. So those it highlights two specific differences here.
First you have a congressional determination that the entity is a foreign adversary, and second you have a link of causal steps between the regulation and the alleged burden, And both of those points I think are significant for future cases or what that means in future First Amendment cases.
On the first point at oral argument, I think petitioners raised a couple of hypotheticals, including one or a couple of counterfactuals, I should say, including one about how Politico is owned by a German company, and then other examples of foreign owned media or communication companies. But that this case involves an undisputed foreign adversary that's backed by the record and years of deliberation by coordinate branches of the
federal government is a distinguishing feature. So you know, we're not concerned about Germany or German owned companies and what they might do with American data in the same way we are with a foreign adversary like China. Second, the important takeaway there is that the concern the court's concern
over the causal chain. A lot of the focus in the briefing and at oral argument was that the burdens on protected expression are in fact because of China's policies and actions, not the regulation itself, and that concern over a causal chain and kind of the First Amendment context has popped up last.
Term, and you know, over and over again in these social media cases.
Is so last term, listeners might recall in Murphy versus Missouri, the Court was concerned that the censorship alleged a challenge in that case about social media platforms was the result of social media platforms themselves and their policy decisions, not any actions by the government.
So that's the recurring theme that we may see in future cases.
Now.
Just just as Soda Mayor concurred and focused on kind of criticizing the Court for sidestepping this decision instead of saying clearly that the Act triggers First Amendment scrutiny, kind of she criticizes the Court for just assuming that without deciding it. She says, the court's own cases make clear that the First Amendment is implicated, and that's absolutely right.
As the Court itself acknowledges, you know, it acknowledges that the editorial decision, the moderation of content, access to a distinct communication medium, the expressive association, all of those are recognized First Amendment rights, and it cites those cases.
But just as.
Sodamayor fails to address kind of the Court's distinctions that it draws about why this case is different than those cases. And so for those of us concerned with protecting free expression, I think that's an important limiting principle of this decision. So, now that the Court assumes that the law triggers First Amendment, it needs to decide whether the law targets speech based on its message or its content, or whether the law is content neutral. It finds it rules that the law
is facially content neutral. The law is actually targeting the corporate control by a foreign adversary.
It does not target speech based on content.
It does not regulate speech that's based on the function or purpose. And third, it does not restrict, penalize, or burden speech because of its content. And we know that because the petitioners can't avoid the regulation by simply.
Altering their speech.
So if the algorithm was still allowed from the Chinese government and TikTok is divested, they could still say all of the pro Chinese speech that was on there, or they could still say everything that's being said on TikTok. Now it's not about the content. The petitioners argued also that the law was content based on his face because of that exclusion, the exclusion for apps that are primarily
designed for product and business reviews or travel information. But the Court notes that this is because this is an as applied challenge by petitioners, it doesn't need to decide whether that exclusion is content based.
Now I'm not sure if that's exactly right.
I feel like there's some mental gymnastics going on there, and I think just as Corsach's concurrence alludes to this point that you know, maybe it is in fact the law is in fact content based.
So I'll get to that in a bit.
But for the time being, the Court notes that this law is at least supported by a content neutral justification, and that justification is preventing China from collecting vast amounts of personal sensitive data from the one hundred and seventy million US TikTok users, and that purpose is completely.
Unrelated to the content of expression.
The law doesn't reference the content of speech on TikTok, and it doesn't reflect disagreement with the messages on TikTok, and the Court rejects the idea that the specific provisions about TikTok should trigger strict scrutiny because it's a restriction based on the identity of the speaker. Again, the Court emphasized the narrow narrowness of its ruling, which kind of goes to show that you couldn't use this ruling to
justify all efforts to protect data. Of course, data protection and you know, privacy issues are rampant in social media and online, and so I think the court's very careful to note that it's not saying that kind of justification would justify any regulationist speech, but that this case is unique. Its focuses on TikTok scale and its susceptibility to control by a foreign adversary that makes this justification okay in this circumstance. The Court also rejects the argument that the
Act is under inclusive because of that exclusion provision. The Court finds that the government had a good reason to single out TikTok because of its history. I think the record is very clear about the way TikTok is handled American data, Americans data, and how it's shared that data
and the government. The Court also notes that the government is not required to address all aspects of a problem and one fell swoop, so it can target the problem imposed by TikTok and then address maybe separately, other issues, like I think one of the examples that came up in oral argument was Timu and other Chinese own websites that that.
Might also be collecting data.
Finally, the Court finds that the law is sufficiently tailored so there is an important government interest in protecting Americans data, and that interest is sufficiently sufficiently furthered by this law under intermediate scrutiny. The law does not need to be the least speech restrictive means. And that's a crucial distinction, because if the court had found that strict scrutiny applied, then it would need to make that determination that this
law was the least speech restrictive means. It also knows that it's a conditional not outright van so the TikTok could, you know, just as long as it was divesting itself a foreign control, then everything would be okay. It Also, the court also addresses the alternatives posed by petitioners, like disclosure requirements or restrictions on data sharing, and found that those alternatives don't undermine the conclusion that the law is
not substantially broader than necessary. And finally, the Court addresses the government's other rationale, which is preventing the covert manipulation of content.
It rejects to.
I guess, declines to consider this rationale, finding that the law would have been passed anyway. Congress would have passed the law overwhelmingly just because of the data protection rationale. And the Court notes that it's an open question as to what is the appropriate level of scrutinary scrutiny when you have a mixed justification. So that's another important takeaway. That is an open question that might have to be
addressed by the Court at a later time. And in another case, now, as I mentioned, Justice Gorsag issued a concurrence. He is a great line at the top of it. He makes four points. One is that he's pleased that the Court rightly refuses to consider that the government's rationale about content manipulation. Echoing Justice Harlan from the seminal decision of Cohen versus California, he says, one man's covert content manipulation is another's editorial discretion, and of course editorial discretion
is protected by the First Amendment. He also notes that the court rightly refuses to consider classified evidence. That was an important thing that was also brought up at oral argument. You know, the government below introduced a lot of classified evidence that was.
Not privy to the petitioners in.
This case and their serious due process concerns by doing that, in which one party doesn't have access to the information. So the Court was right to reject that classified evidence or not considerate in making this ruling. And third Justice Gorsic raised serious concerns about whether the law is content neutral and therefore escapes strict scrutiny. I think that goes to kind of a heart of an issue that was not decided by the courts, kind of determining the level
of scrutiny that applies. Where you have just just as Soda Mayor and her concurrence saying, well, we should have decided that this triggered First Amendment scrutiny period based on the Court's decision, and then Justice Gorsage saying that.
You would have applied strict scrutiny and.
That the law does and would have upheld the law under that heightened scrutiny. Under strict scrutiny because the law serves the compelling interest and that it is narrowly tailored to serve that interest. So that's just the wrap up I guess of the Court's decision.
Yeah, this is a matter of full.
Disclosure, as I was formally involved with both FIRE and IJ.
They both submitted an a meekest brief.
In this case and argued that it was strict scrutiny should apply and that the TikTok band should be invalidated as a violation.
I think there are some you know, I.
Sympathize with the concerns that a lot of folks have that sometimes national security is just invoked as a talisman.
To justify speech restrictions. I am, in.
My own personal capacity, I kind of agree with the courts concerned about this. I think the records very clear here. You know, we're not dealing with just the invocation of national security. You have a five year period of Congress and the federal government, both under two separate administrations, trying to.
Deal with this.
And I think the Court is respectful and notes in its opinion that it owes a certain amount of deference to its coordinate branches. I mean, they're not going to be experts on the national security issue. That said, I think that is an important thing that could distinguish this case from other efforts where it is just sort of national security is just invoked as a talisman, has got a magic phrase to justify speech restrictions or restrictions and other civil liberties.
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