Constitutional Law: Terms and Conditions Apply: A Legal Analysis of Supreme Court Free Speech Case - TikTok v. Garland

Written by Dashaun Brown, Rowen Hamilton, Yaquelin Hinojosa-Fuentes, Munpreet Kaur, Yulin Chao

Edited by Rowen Hamilton and Anna Ramesh

Background and Overview

TikTok—a social media platform and U.S. subsidiary owned by the Chinese company, ByteDance—has challenged Congress's recent legislation to combat Chinese influence in U.S. media and data sharing. Because ByteDance manages business in China, Congress demands ByteDance to sell TikTok to an approved buyer as a way to evade data collection and espionage. This is essentially a ban of the platform if the sale was not completed within the timeframe specified by Congress.

The Protecting Americans from Foreign Adversary Controlled Applications Act (also called PAFACA) was signed into law in April 2024, and it allows the President to require a company owned by a foreign adversary to divest if deemed a national security threat. TikTok has speech rights similar to how a person has speech rights, but these can be abridged if they pose a substantive threat to a compelling Governmental interest.

TikTok joined in a lawsuit with TikTok creators to challenge the provisions of the PAFACA. They claim TikTok and its users have had their First Amendment rights violated. In the case Tiktok v. Garland (also called TikTok Inc. et al. v. Garland), TikTok argued that the PAFACA is content-based, so strict scrutiny should apply. TikTok also argued that the government has ignored less restrictive alternative measures such as banning TikTok from sharing sensitive data with anyone, a plausible option since TikTok's data is stored in Virginia. TikTok argued that mandating the company to switch algorithms would be a bad business decision, and they argued the entity can choose to shut down its platform instead of complying with Chinese pressure.

The D.C. Circuit Court was the first to hear the case because the scope of the law was nationwide. The circuit court agreed with the Government's national security justifications for forcing the divestiture from ByteDance, so TikTok appealed to the Supreme Court. The SCOTUS decided that the PAFACA does not violate TikTok or their creator's First Amendment rights, agreeing with the lower court. The SCOTUS determined that China could possibly access sensitive data from millions of users through control of ByteDance. The SCOTUS found the law does not suppress free speech by preferring particular forms of speech over others—i.e. other platforms and their algorithms—and it does not substantially inhibit speech further than necessary to satisfy the compelling interest of the Government.

Precedent

TikTok v. Garland references a vast number of cases. For brevity, listed below are key takeaways from each ruling that were cited in TikTok v. Garland:

Northwest Airlines, Inc. v. Minnesota (1944): Cases involving novel and emerging technologies are difficult to understand. In order not to "embarrass the future," the SCOTUS should narrowly tailor the decision to the case's specific circumstances.

TikTok Inc. v. Trump (2020) and Marland v. Trump (2020): Before TikTok v. Garland, President Trump invoked Executive authority under the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act to prohibit certain transactions involving ByteDance Ltd. or its subsidiaries that were identified by the Secretary of Commerce.

TikTok Inc. v. Committee on Foreign Investment (2021): In February 2021, the D. C. Circuit placed the case in abeyance to permit the Biden administration to review the matter and to enable the parties to negotiate a non-divestiture remedy that would address the Government's national security concerns. This case outlines the legality of this negotiation.

R. A. V. v. St. Paul (1992): Laws that directly regulate expressive conduct can trigger strict scrutiny.

Arcara v. Cloud Books, Inc., (1986): First Amendment strict scrutiny is applicable in "cases involving governmental regulation of conduct that has an expressive element," and to "some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."

Moody v. NetChoice, LLC (2024): The ban of an algorithm could burden First Amendment activities because an entity "'exercising editorial discretion in the selection and presentation' of content is 'engaged in speech activity'" (Arkansas Ed. Television Comm'n v. Forbes (1998) is cited internally)

City of Ladue v. Gilleo (1994): "Laws that foreclose an entire medium of expression" could be subject to strict scrutiny under the First Amendment.

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006): Citizens have a "right to associate for the purpose of speaking" as a "'right of expressive association.'"

Martin v. City of Struthers (1943): Freedom of speech and press in the First Amendment "embraces the right to distribute literature and necessarily protects the right to receive" the contents of this expression.

Turner Broadcasting System, Inc. v. FCC (1994): First, the First Amendment affirms "the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Second, laws that "discriminate among media, or among different speakers within a single medium" may constitute First Amendment violations and thus demand strict scrutiny unless "the differential treatment is 'justified by some special characteristic of ' the particular [speaker] being regulated" (Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue (1983) is cited internally). Third, "a regulation need not be the least speech-restrictive means of advancing the Government's interests" to survive scrutiny.

Reed v. Town of Gilbert (2015): Laws that directly target the content matter of speech "are presumptively unconstitutional" unless they are narrowly tailored to serve compelling state interests." Also, "a facially content-neutral law" is considered "content-based regulation of speech" if it "cannot be 'justified without reference to the content'" or was "adopted by the government 'because of disagreement with the message the speech conveys'" (Ward v. Rock Against Racism (1989) is cited internally).

Carey v. Brown (1980): A ruling that found a law unconstitutional that targeted content by prohibiting all residential picketing except "peaceful labor picketing."

Holder v. Humanitarian Law Project (2010): A ruling that found a law constitutional that targeted the function/purpose of speech by prohibiting providing material support to terrorists.

Citizens United v. Federal Election Comm'n (2010): Cases involving "the identity of the speaker" can often be "a means to control content." In TikTok v. Garland, the identity of TikTok was associated with China, so its speech rights could be abridged.

Williams-Yulee v. Florida Bar (2015): "The First Amendment imposes no freestanding underinclusiveness limitation." Although cases and laws may have multiple challenges, the SCOTUS "need not address all aspects of a problem in one fell swoop" in order to rule.

Brown v. Entertainment Merchants Assn. (2011): As a counterexample to TikTok v. Garland, this case reviewed a law that singled out video game purveyors. The law disfavored the entity without a persuasive reason to target "a particular speaker or viewpoint."

United States v. Albertini (1985): Intermediate scrutiny is achieved "so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation" and does not act beyond its necessary goals.

Clark v. Community for Creative Non-Violence (1984), Members of City Council of Los Angeles v. Taxpayers for Vincent (1984), and McCullen v. Coakley (2014): Regulations can be valid even if there are less restrictive "alternative regulatory methods" if the government's scope is sufficiently narrow and if the government has exhausted similar alternatives.

Effects of TikTok v. Garland

By allowing the U.S. government to compel TikTok's Chinese parent company to divest the app or risk ban, the verdict of this case determines that laws aimed at countering threats to national security override free speech protections. As a result, legislators may feel more comfortable passing bills that dictate ownership of social networking websites if they believe data is at risk to foreign threats. This ruling serves as an additional verdict that affirms the government's power to regulate technology companies if a compelling state interest that supersedes free speech exists.

Terms and Definitions

Divest/Divestiture. "The partial or full disposal of a company's or other entity's operations or assets through sale, exchange, closure, or bankruptcy."

Facially. "Pertaining to or immediately noticeable in something's appearance or obvious characteristics (like a statute)" For example, a law that explicitly excludes a racial minority from holding office is facially discriminatory while a law that creates an informal regime of discrimination—one not outlined or stated by the intent of the law directly—is as-applied discrimination.

Freestanding Underinclusiveness Limitation. a provision that would automatically invalidate a law simply because it is considered underinclusive, meaning it doesn't address all aspects of a problem, or affects some but not others similarly situated.

Intermediate Scrutiny. Intermediate scrutiny is a form of judicial review to determine a statute's constitutionality when the government passes a statute which discriminates against, negatively affects, or creates some kind of classification affecting certain protected classes. The challenged law must (1) further an important government interest and (2) must do so by means that are substantially related to that interest.

Strict Scrutiny. Strict scrutiny is a form of judicial review that determines the constitutionality of government action that burdens a fundamental right or involves a suspect classification. Strict scrutiny is the highest standard, and the action must (1) serve a compelling state interest and (2) be narrowly tailored to achieve this interest.

Subsidiary. A daughter company that is subject to a controlling shareholder, a parent company.