Episode description

In this case, the court considered this issue: Does the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to TikTok, violate the First Amendment?

The case was decided on January 17, 2025.

In a per curiam opinion, the Court held that the challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate TikTok’s First Amendment rights.

First, the Court determined that intermediate scrutiny applies because the law is content-neutral; it targets TikTok not based on the content of speech on the platform, but because of China’s ability to access sensitive data from 170 million U-S users through its control of ByteDance. While laws that discriminate among different speakers often raise First Amendment concerns, TikTok’s unique characteristics—its massive scale and susceptibility to foreign adversary control—justify treating it differently from other platforms. The law does not reflect a preference for certain content or viewpoints, so it is subject to intermediate scrutiny. In other words, the law must further an important government interest unrelated to the suppression of free expression and not burden substantially more speech than necessary to further that interest.

Under that test, the law was sufficiently tailored to serve the government’s important interest in preventing China from collecting vast amounts of sensitive user data. Congress had substantial evidence of the extensive personal information TikTok collects and China's ability to compel Chinese companies to surrender data. Rather than banning TikTok outright, the law allows the platform to continue operating if ByteDance divests it to eliminate Chinese control. While there may be less restrictive alternatives like disclosure requirements or data sharing restrictions, Congress retains latitude to choose its preferred regulatory solution so long as it does not burden substantially more speech than necessary to achieve its goal.

Justice Sonia Sotomayor wrote separately concurring in part and concurring in the judgment.

Justice Neil Gorsuch wrote an opinion concurring in the judgment.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.