by Dennis Crouch
The Supreme Court’s December 18, 2024 order in TikTok v. Garland is an extraordinary intervention by the Court (especially for its speed) and will likely address a number of novel constitutional questions about government regulation of social media and national security, especially in light of the ongoing economic “war” with China. The order consolidates two emergency applications seeking to block enforcement of the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) before its January 19, 2025 effective date. That statute would effectively ban TikTok from operating within the US unless it is fully divested from Chinese government control.
PAFACAA, signed into law on April 24, 2024, specifically targets applications controlled by designated foreign adversaries, with TikTok being the only platform currently affected. The legislation prohibits entities from distributing, maintaining, or updating foreign adversary controlled applications within U.S. borders through app stores or internet hosting services. For TikTok, these prohibitions take effect on January 19, 2025, unless the platform executes a “qualified divestiture” that would sever its ties to ByteDance and, by extension, the People’s Republic of China (PRC).
- TikTok December 18 Order
- TikTok Lower Court Rulings
- TikTok Emergency Application
- Firebaugh Emergency Application
The first application comes from TikTok Inc. and its parent company ByteDance Ltd., which argue that the Act’s effective ban on their operation of the TikTok platform in the United States constitutes an impermissible content-based restriction on speech. They emphasize that TikTok Inc. is an American company engaging in protected First Amendment activity through its curation and moderation of user content. The companies contend that concerns about potential Chinese government influence cannot justify the Act’s “massive and unprecedented speech restriction” affecting 170 million American users. Their application stresses that less restrictive alternatives were available, including their proposed National Security Agreement featuring third-party monitoring and data protections.
The second application was filed by a group of TikTok content creators, including Brian Firebaugh (@cattleguy), Chloe Joy Sexton (@chloebluffcakes), Talia Cadet (@taliacadet), and others who use the platform for political speech, commerce, and creative expression. These creators argue that the Act will destroy their livelihoods and ability to reach their established audiences — it is the new public square. The creators contend that the Act’s targeting of TikTok reflects impermissible content discrimination rather than legitimate national security concerns.
Both applications highlight the immediate and irreparable harm that would result from the Act taking effect, even temporarily. They note that the shutdown would occur on the eve of a presidential inauguration, silencing political speech at a critical moment. The applications also emphasize the permanent damage to TikTok’s user base, commercial relationships, and competitive position that would occur even if the ban were later lifted. TikTok projects losing approximately one-third of its daily U.S. users after just one month of shutdown.
Rather than simply granting or denying the requested injunctions, the Court took the unusual step of treating the emergency applications as petitions for certiorari and setting an expedited schedule for full consideration of the First Amendment question. The Court’s order provides for simultaneous opening briefs from all parties due December 27, 2024, reply briefs due January 3, 2025, and oral argument on January 10, 2025 – just nine days before the Act would take effect. This compressed timeline reflects both the constitutional significance of the case and the practical necessity of resolving it before irreparable harm occurs.
Although this case is set up with an “as applied to petitioners” focus, the statute itself is designed particularly to focus on TikTok and so we have some significant merger between the as-applied and a would-be facial challenge. Of course, the TikTok influencer case highlights distinct First Amendment interests of American citizens who use the platform to distribute their own speech. Some bipartisan coalitions within the next Congress are looking to limit the power and negative impacts of social media, and so thte outcome here will help to define the playing field. Although free speech is strongly protected within the US, the court has been much more flexible when Congress invokes either national security or ‘the children.’
Stepping back – The D.C. Circuit’s decision came out only on December 6, 2024 — upholding the Act against the constitutional challenges brought by TikTok. The court’s decision, written by Senior Circuit Judge Ginsburg, addressed multiple constitutional claims but weighed those against the national security interests at stake.
On the First Amendment challenge, the court assumed without deciding that strict scrutiny applied, though it suggested intermediate scrutiny might be more appropriate. The court found the Act facially content-neutral because it targeted foreign adversary control rather than specific speech content. However, because one of the government’s justifications referenced content manipulation, the court proceeded under the more demanding strict scrutiny standard.
The court identified two compelling government interests justifying the Act: (1) preventing the PRC from collecting vast quantities of data about Americans, and (2) limiting the PRC’s ability to manipulate content covertly on TikTok. Drawing from Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the court gave significant weight to the national security judgments of the President and Congress, particularly given the extensive efforts of both Congress and two presidential administrations to address TikTok-related risks.
Regarding the data collection concern, the court found the government’s interest well-founded given TikTok’s collection of extensive user data and the PRC’s demonstrated pattern of leveraging Chinese companies to access sensitive information about Americans. The court rejected TikTok’s argument that its voluntary data protection measures were sufficient, deferring to the government’s determination that only divestiture would adequately address the risks. On content manipulation, the court found preventing covert manipulation by an adversary nation served a compelling governmental interest distinct from merely suppressing propaganda. The court emphasized that the Act aimed to prevent secret manipulation of public discourse rather than suppress specific viewpoints or content.
The court found the Act narrowly tailored to achieve these objectives, rejecting TikTok’s argument that its proposed National Security Agreement (NSA) represented a less restrictive alternative. The court deferred to the government’s determination that the NSA would be insufficient given concerns about monitoring compliance and ByteDance’s continued influence over TikTok’s U.S. operations.
Chief Judge Srinivasan authored a concurring opinion agreeing with the outcome but arguing that intermediate scrutiny should apply given the Act’s alignment with longstanding restrictions on foreign control of mass communications channels. That would have made it even easier to side against TikTok.
The decision has immediate practical implications for TikTok’s operations in the United States. Unless ByteDance divests its ownership by January 19, 2025, the platform will effectively become unavailable to its approximately 170 million U.S. users.