Episode 125
Opinion Summary: TikTok Inc. v. Garland | Date Decided: 1/17/25 | Case No. 24–656
Case Info: TikTok Inc. v. Garland | Date Decided: 1/17/25 | Case No. 24–656
Link to Docket: Here.
Question Presented: Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to Petitioners, violates the First Amendment.
Holding: The challenged provisions do not violate petitioners’ First Amendment rights.
Result: Affirmed.
Voting Breakdown: The Supreme Court wrote a Per Curiam unanimous opinion. Justice Sotomayor wrote an opinion that concurred in part and concurred in the judgment. Justice Gorsuch wrote an opinion that concurred in the judgment.
Link to Opinion: Here.
Oral Advocates:
- For petitioners TikTok Inc., et al.: Noel J. Francisco, Washington, D. C.
- For petitioners Firebaugh, et al.: Jeffrey L. Fisher, Melo Park, Cal.
- For respondent: Elizabeth B. Prelogar, Solicitor General, Department of Justice, Washington, D. C.
Website Link to Oral Argument: Here.
Apple Podcast Link to Oral Argument: Here.
Transcript
Vs Garland, case number 24 656.
Speaker A:The question presented in this case is whether the Protecting Americans from Foreign Adversary Controlled Applications act, as applied to petitioners violates the First Amendment.
Speaker A:The Supreme Court wrote a per curiam opinion.
Speaker A:Justice Sotomayor wrote an opinion that concurred in part and concurred in the judgment.
Speaker A:Justice Gorsuch wrote an opinion that concurred in the judgment.
Speaker A:Please note that this summary is read by an automated voice per curiam opinion.
Speaker B: ,: Speaker B:The Protecting Americans from Foreign Adversary Controlled Applications act will make it unlawful for companies in the United States to provide services to distribute, maintain, or update the social media platform TikTok unless US operation of the platform is severed from Chinese control.
Speaker B:Petitioners are two TikTok operating entities and a group of US TikTok users.
Speaker B:We consider whether the act as applied to petitioners violates the First Amendment.
Speaker B:In doing so, we are conscious that the cases before us involve new technologies with transformative capabilities.
Speaker B:This challenging new context counsels caution on our part.
Speaker B:As justice Frankfurter advised 80 years ago, in considering the application of established legal rules to the totally new problems raised by the airplane and radio, we should take care not to embarrass the future.
Speaker B:Northwest Airlines Inca v.
Speaker B:Minnesota, 322 U.S.
Speaker B:292, 319 44.
Speaker B:That caution is heightened in these cases.
Speaker B:Given the expedited time allowed for our consideration, our analysis must be understood to be narrowly focused in light of these circumstances.
Speaker B:TikTok is a social media platform that allows users to create, publish, view, share, and interact with short videos overlaid with audio and text.
Speaker B: Since its launch in: Speaker B:Those users are prolific content creators and viewers.
Speaker B: In: Speaker B:tikTok users uploaded more than 5.5 billion videos, which were in turn viewed more than 13 trillion times around the world.
Speaker B:TikTok is operated in the United States by TikTok Inc.
Speaker B:An American company incorporated and headquartered in California.
Speaker B:TikTok InKater's ultimate parent company is ByteDance Latitude, a privately held company that has operations in China.
Speaker B:ByteDance owns TikTok's proprietary algorithm, which is developed and maintained in China.
Speaker B:The company is also responsible for developing portions of the source code that runs the TikTok platform.
Speaker B:ByteDance LLTD is subject to Chinese laws that require it to assist or cooperate with the Chinese government's intelligence work and to ensure that the Chinese government has the power to access and control private data the Company holds.
Speaker B:In recent years, U.S.
Speaker B:government officials have taken repeated actions to address national security concerns regarding the relationship between China and TikTok.
Speaker B:Congress enacted the Protecting Americans From Foreign Adversary Controlled Applications Act.
Speaker B:Publications L.
Speaker B:Sto Ocemnaste Michelnik Pingeschent, Age 138 Statutes 955.
Speaker B:The act makes it unlawful for any entity to provide certain services to distribute, maintain, or update a foreign adversary controlled application in the United States.
Speaker B:Section 2A1.
Speaker B:Entities that violate this prohibition are subject to civil enforcement actions and hefty monetary penalties.
Speaker B:See sections 2d1a.d2b.
Speaker B:The act provides two means by which an application may be designated a foreign adversary controlled application.
Speaker B:First, the act expressly designates any application that is operated directly or indirectly by ByteDance, Linted, or TikTok, or any subsidiary or successor thereof.
Speaker B:Section 2G 3A.
Speaker B:Second, the act establishes a general designation framework for any application that is both one operated by a covered company that is controlled by a foreign adversary and two Determined by the President to present a significant threat to the national security of the United States following a public notice and reporting process.
Speaker B:2G 3B.
Speaker B:In broad terms, the act defines covered company to include a company that operates an application that enables users to generate, share, and view content and has more than 1 million monthly active users.
Speaker B:Section 2A.
Speaker B:The act excludes from that definition a company that operates an application whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews.
Speaker B:Section 2G 2B.
Speaker B:The Act's prohibitions take effect 270 days after an application is designated a foreign adversary controlled application.
Speaker B:Section 2A2.
Speaker B: ,: Speaker B:The act exempts a foreign adversary controlled application from the prohibitions if the application undergoes a qualified divestiture.
Speaker B:Section 2C1.
Speaker B:A qualified divestiture is one that the President determines will result in the application no longer being controlled by a foreign adversary.
Speaker B:Section 2G 6A.
Speaker B:The President must further determine that the divestiture precludes the establishment or maintenance of any operational relationship between the United States operations of the application and any formerly affiliated entities that are controlled by a foreign adversary, including any cooperation with respect to the operation of a content recommendation algorithm or an agreement with respect to data sharing.
Speaker B:Section 2G.6B.
Speaker B:The act permits the President to grant a one time extension of no more than 90 days with respect to the prohibition's 270 day effective date if the President makes certain certifications to Congress regarding progress toward a qualified divestiture.
Speaker B:Section 2 At the threshold, we consider whether the challenged provisions are subject to First Amendment scrutiny.
Speaker B:Laws that directly regulate expressive conduct can but do not necessarily trigger such review.
Speaker B:See RAV.
Speaker B:V.
Speaker B:St.
Speaker B:Paul, 505 U.S.
Speaker B: ,: Speaker B:We have also applied First Amendment scrutiny 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 on upon those engaged in protected First Amendment Activities.
Speaker B:Arkara vs.
Speaker B:Cloudbooks, Inc.
Speaker B:478 U.S.
Speaker B: ,: Speaker B:This Court has not articulated a clear framework for determining whether a regulation of non expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review.
Speaker B:We need not do so here.
Speaker B:We assume without deciding that the challenge provisions fall within this category and are subject to First Amendment scrutiny.
Speaker B:We have identified two forms of content based speech regulation.
Speaker B:First, a law is content based on its face if it applies to particular speech because of the topic discussed or the idea or message expressed.
Speaker B:Read, 576 US at 163 CID at 163 to 164 explaining that some facial distinctions define regulated speech by subject matter, others by the speech's function or purpose.
Speaker B:Second, a facially content neutral law is nonetheless treated as a content based regulation of speech if it cannot be justified without reference to the content of the regulated speech or was adopted by the government because of disagreement with the message the speech conveys.
Speaker B:Idir at 164 quoting Ward vs Rock Against Racism, 491 U.S.
Speaker B: ,: Speaker B:As applied to petitioners, the challenged provisions are facially content neutral and are justified by a content neutral rationale.
Speaker B:The challenge provisions are facially content neutral.
Speaker B:They impose TikTok specific prohibitions due to a foreign adversary's control over the platform and make divestiture a prerequisite for the platform's continued operation in the United States.
Speaker B:They do not target particular speech based upon its content.
Speaker B:Contrast, e.g.
Speaker B: ,: Speaker B:Contrast eg.
Speaker B:Holder v.
Speaker B:Humanitarian Law Project, 561 U.S.
Speaker B: ,: Speaker B:Nor do they impose a restriction, penalty, or burden by reason of content on TikTok, a conclusion confirmed by the fact that petitioners cannot avoid or mitigate the effects of the act by altering their speech turner the mares 5:12 US at 6.
Speaker B:44.
Speaker B:As to petitioners, the act thus does not facially regulate particular speech because of the topic discussed or the idea or message expressed.
Speaker B:Read, 576 USA at 163.
Speaker B:The government also supports the challenge provisions with a content neutral justification preventing China from collecting vast amounts of sensitive data from 170 million US TikTok users to apartment6.28.
Speaker B:That rationale is decidedly content agnostic.
Speaker B:It neither references the content of speech on TikTok nor reflects disagreement with the message such speech conveys.
Speaker B:Compare Ward, 491 U.S.
Speaker B:at 792 to 793 holding noise control and sound quality justifications behind city sound amplification guideline were content neutral.
Speaker B:Because the data collection justification reflects a purpose unrelated to the content of expression, it is content neutral.
Speaker C:Ed.
Speaker B:At 791.
Speaker B:On this understanding, we cannot accept petitioners call for strict scrutiny.
Speaker B:No more than intermediate scrutiny is in order.
Speaker B:As applied to petitioners, the act satisfies intermediate scrutiny.
Speaker B:The challenged 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.
Speaker B:The government has an important and well grounded interest in in preventing China from collecting the personal data of tens of millions of US TikTok users.
Speaker B:Nor could they.
Speaker B:The platform collects extensive personal information from and about its users.
Speaker B:HR rep.
Speaker B:At 3.
Speaker B:Public reporting has suggested that TikTok's data collection practices extend to age, phone number, precise location, Internet address, device used phone contacts, social network connections, the content of private messages sent through the application, and videos watched.
Speaker B:1 app 241 draft National Security Agreement Noting that TikTok collects user data, user content, behavioral data including keystroke patterns and rhythms, and device and network data, including device contacts and calendars.
Speaker B:For the foregoing reasons, we conclude that the challenge provisions do not violate petitioners First Amendment rights.
Speaker B:The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed.
Speaker B:Justice Soto, Mayor, concurring in part and concurring in the judgment, I join all but Part 2A of the Court's per curiam opinion, I see no reason to assume without deciding that the act implicates the First Amendment because our precedent leaves no doubt that it does.
Speaker B:TikTok engages in expressive activity by compiling and curating material on its platform.
Speaker C:Justice Gorsuch concurring in the judgment.
Speaker C:We have had a fortnight to resolve, finally and on the merits, a major First Amendment dispute affecting more than 170 million Americans.
Speaker C: th,: Speaker C:Given those conditions, I can sketch out only a few and admittedly tentative observations.
Speaker C:First, the Court rightly refrains from endorsing the government's asserted interest in preventing the COVID manipulation of content as a justification for the law before us.
Speaker C:One man's covert content manipulation is another's editorial discretion.
Speaker C:Journalists, publishers, and speakers of all kinds routinely make less than transparent judgments about what stories to tell and how to tell them.
Speaker C:Second, I am pleased that the Court declines to consider the classified evidence the government has submitted to us.
Speaker C:But shielded from petitioners and their counsel, efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns.
Speaker C:Usually the evidence used to prove the government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.
Speaker C:Third, I harbor serious reservations about whether the law before us is content neutral and thus escapes strict scrutiny.
Speaker C:More than that, while I do not doubt that the various tiers of scrutiny discussed in our case law rational basis, strict scrutiny, somethings in between can help focus our analysis, I worry that litigation over them can sometimes take on a life of its own and do more to obscure than to clarify the ultimate constitutional questions.
Speaker C:Fourth, whatever the appropriate tier of scrutiny, I am persuaded that the law before us seeks to serve a compelling interest preventing a foreign country designated by Congress and the President as an adversary of our nation from harvesting vast troves of personal information about tens of millions of Americans.
Speaker C:The record before us establishes that TikTok mines data both from TikTok users and about millions of others who do not consent to share their information.
Speaker C:And because the record shows that the People's Republic of China PRC can require TikTok's parent company to cooperate with its efforts to obtain personal data, there is little to stop all that information from ending up in the hands of a designated foreign adversary, the PRC may then use that information to build dossiers for blackmail, conduct corporate espionage, or advance intelligence operations.
Speaker C:To be sure, assessing exactly what a foreign adversary may do in the future implicates delicate and complex judgments about foreign affairs and requires large elements of prophecy.
Speaker C:Finally, the law before us also appears appropriately tailored to the problem it seeks to address.
