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TikTok v. Garland

Supreme Court of the United States · 2025 · Constitutional Law

Constitutional LawFirst AmendmentFreedom of SpeechContent NeutralityIntermediate ScrutinyNational SecurityFirst Amendmentcontent-neutral law

Facts

Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act after years of governmental concern about TikTok's relationship with China. The Act makes it unlawful to provide certain services to distribute, maintain, or update applications operated by ByteDance Ltd. or TikTok in the United States unless the platform undergoes a qualified divestiture that removes foreign-adversary control and certain operational ties. TikTok has more than 170 million U. S. users, collects extensive user data, and its proprietary recommendation algorithm is owned, developed, and maintained by ByteDance Ltd., which has operations in China and is subject to Chinese laws requiring cooperation with Chinese intelligence work. Petitioners argued that because divestiture within the statutory timeframe was commercially infeasible, the Act effectively bans TikTok in the United States and burdens First Amendment activity.

Issue

Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to TikTok, ByteDance, and TikTok users and creators, violates the First Amendment. More specifically, the question was whether the challenged provisions should be treated as content based and, if not, whether they survive the applicable level of First Amendment scrutiny.

Rule

Assuming a regulation of non-expressive activity that disproportionately burdens expressive activity triggers First Amendment scrutiny, content-based laws are subject to strict scrutiny, while content-neutral laws are subject to intermediate scrutiny. A content-neutral law will be sustained if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests. Speaker-specific distinctions do not trigger strict scrutiny when they are justified by a special characteristic of the regulated speaker rather than a content preference.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Congress enacts a statute requiring a video-sharing app, HarborLoop, to cease U.S. operations unless its Singapore parent completes a divestiture eliminating control by an entity that Congress has designated as aligned with a foreign adversary. The record shows HarborLoop collects extensive location, contact-list, and device data from 90 million U.S. users, and Congress states its principal concern is preventing that foreign government from obtaining the data.

If HarborLoop challenges the law under the First Amendment, what is the most likely standard of review and result?

Explanation. The majority assumed without deciding that a law regulating nonexpressive activity but disproportionately burdening expression may receive First Amendment scrutiny. It then held that a law targeting foreign-adversary control and justified by a content-neutral data-collection rationale is content neutral, so intermediate scrutiny applies. Under that standard, the law is valid if it advances an important interest unrelated to suppression of speech and does not burden substantially more speech than necessary. A conditional ban tied to divestiture directly addressing foreign access to sensitive user data would likely satisfy that test. (Derived from TikTok v. Garland (n.d.).)