TikTok – A First Look at the Briefs

Briefs are trickling in for the Supreme Court’s fast-paced battle over the upcoming TikTok ban.   The outcome of TikTok v. Garland will likely be a watershed moment for free speech in the digital age — especially with respect to non-US media.  This post walks through the six amicus briefs all filed early.  Three support TikTok and its content creator co-petitioners; and three agree with the appellate court and U.S. government that the ban is appropriate.

• ACLU/EFF Brief
• KNIGHT FIRST AMENDMENT INSTITUTE Brief
• Human Rights Brief
• TEACHOUT Brief 
• ADVANCING AMERICAN FREEDOM Brief
• Rand Paul Brief

As background: TikTok has over 170 million U.S. users but is ultimately owned by Chinese company ByteDance, which under Chinese law must share data and comply with Chinese Communist Party directives. After years of bipartisan concern about TikTok’s data collection practices and potential for content manipulation, Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA) in April 2024 with strong support from both parties, and President Biden signed it into law. The Act effectively requires ByteDance to sell TikTok to non-Chinese owners by January 19, 2025, or face a ban on U.S. operations. TikTok and several content creators immediately challenged the law as violating the First Amendment, but the D.C. Circuit upheld the ban in December 2024, finding that even if strict scrutiny applied, the government’s national security interests justified the restriction. With the divestiture deadline looming, the Supreme Court took the extraordinary step of granting immediate review and scheduling arguments for January 10, 2025, just nine days before the law would take effect. The case presents novel questions about how traditional First Amendment doctrines apply to social media platforms controlled by potentially hostile foreign powers and tests the limits of Congress’s authority to restrict foreign ownership of communications infrastructure.

I want to start with a discussion of the three petitioner side briefs that collectively attack PAFACAA under multiple First Amendment theories, each triggering strict scrutiny. First, they argue the law operates as a prior restraint by preemptively blocking speech based on speculative future harms. As the ACLU/EFF brief emphasizes, prior restraints face “the most exacting scrutiny.” Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). The government must prove not just a compelling interest, but that the targeted harm is “direct, immediate, and irreparable.” New York Times Co. v. United States, 403 U.S. 713 (1971) (Stewart, J., concurring).

Second, the briefs contend PAFACAA warrants strict scrutiny because it effectively “foreclose[s] an entire medium of expression.” City of Ladue v. Gilleo, 512 U.S. 43 (1994) (ban on yard signs). The Knight Institute brief develops this argument by explaining why different social media platforms create distinct expressive environments that are not interchangeable – a point the Supreme Court recently recognized in Moody v. NetChoice, 603 U.S. 707 (2024) (noting how platform curation choices create “different expressive product[s], communicating different values and priorities”).

Third, the briefs argue the law triggers strict scrutiny as a viewpoint-based restriction, evidenced by legislative history showing congressional intent to suppress specific messages and perspectives, such as pro-Palestinian content and Chinese propaganda.  The Court has long held that such motivation requires the most exacting review. Reed v. Town of Gilbert, 576 U.S. 155 (2015).

I love briefs that provide historical perspective, and the Members of Congress brief (Senators Edward Markey and Rand Paul along with Representative Ro Khanna) does just that by grounding its analysis in constitutional history. It traces how the First Amendment explicitly rejected the English practice of restricting speech for purported national security reasons.

The Sedition Act of 1798 targeted speech with “intent to” encourage “hostile designs of any foreign nation against the United States.” Like PAFACAA’s sponsors who cite Chinese influence, the Act’s proponents warned of “spies and inflammatory agents” fostering foreign hostility. The brief also examines the McCarran-Walter Act’s ideological exclusions during the Cold War – provisions ultimately rejected as incompatible with First Amendment values. The Knight Institute reinforces these historical lessons by documenting how authoritarian regimes today use similar rationales to restrict their citizens’ access to foreign platforms. This context suggests PAFACAA belongs to a tradition of speech restrictions that are contrary to liberty.

The Right to Receive Foreign Speech: A core theme across the pro-petitioner briefs is Americans’ First Amendment right to access speech from abroad. The ACLU brief roots this right in Lamont v. Postmaster General, 381 U.S. 301 (1965), where the Court struck down requirements for receiving “communist propaganda” from abroad. As Justice Brennan wrote in concurrence:

That the governments which originate this propaganda themselves have no equivalent guarantees only highlights the cherished values of our constitutional framework; it can never justify emulating the practice of restrictive regimes in the name of expediency.

The briefs argue that this principle has even greater force in the social media era. As the Court recognized in Packingham v. North Carolina, 582 U.S. 98 (2017), social media platforms are now “the most important places . . . for the exchange of views.” The Knight brief explains how TikTok enables unique forms of cross-border communication and community-building that would be permanently disrupted by PAFACAA.

Content Manipulation and the First Amendment

The D.C. Circuit attempted to distinguish “preventing covert content manipulation” from “suppressing propaganda,” finding only the former to be a constitutionally permissible justification for the ban. The amici argue that if the concern is covertness, disclosure requirements provide a less restrictive alternative.  See Citizens United v. FEC, 558 U.S. 310 (2010). The D.C. Circuit’s dismissal of disclosure as ineffective arguably conflicts with precedents requiring the government to prove that less restrictive alternatives would fail. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).

The Government’s Defense: Constitutional Structure and National Security

On the other side, I want to talk through three newly filed amicus briefs supporting the government present. The briefs framing PAFACAA not as a speech restriction but as a legitimate exercise of sovereign power to protect national security and democratic self-governance. These briefs come from from legal scholars Zephyr Teachout and Joel Thayer, a coalition of human rights organizations focused on Chinese repression, and conservative policy organizations led by Advancing American Freedom.

First, they argue that foreign ownership restrictions on communications infrastructure have a long constitutional pedigree that peacefully coexists with the First Amendment. The Teachout brief traces how the Constitution’s framers were deeply concerned with foreign interference, embedding multiple provisions to guard against it. As they note, “The foundation of our Constitution, as well as sovereignty generally, lies in the understanding that we have the power to protect against foreign interference and that the exercise of such power is not incompatible with the First Amendment.”

The brief catalogs several ways that Congress has restricted foreign ownership of communications companies throughout American history, from the Federal Radio Act through modern FCC regulations. Courts have consistently upheld these restrictions without triggering heightened First Amendment scrutiny. As the brief argues, PAFACAA follows this traditional path by placing “foreign ownership restrictions at the application layer.”

The second brief – filed by by several human rights organizations provide evidence of how the Chinese Communist Party weaponizes technology companies for surveillance and repression, both within China and globally. The brief details specific instances of ByteDance using TikTok to monitor journalists and activists, including through “god credentials” that give CCP officials backdoor access to user data. This empirical evidence strengthens the government’s argument that its national security concerns are concrete rather than speculative.

Finally, the Advancing American Freedom brief argues that reading the First Amendment to block PAFACAA would “constitute sawing off the branch upon which that Amendment rests.” The brief contends that the First Amendment should not be interpreted to prevent Congress from stopping foreign adversaries from manipulating American discourse through noncoercive means. It notes that with 170 million monthly U.S. users and 52% getting news from the platform, TikTok gives the CCP unprecedented ability to shape Americans’ information environment.  The brief concludes with substantial pro-west and anti-communist rhetoric.

Putting these together – the basic theme is that the TikTok ban represents a traditional exercise of sovereign power to protect national security and democratic self-governance from foreign interference. And, the target is ownership structure rather than expressive activity. And finally, that the harms here include real national security concerns that are “real, not merely conjectural.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994).

Collectively, these are excellent and persuasive briefs — As I read, I found myself being sympathetic to each side’s position.  The legal questions here are tough, in the end I believe I am most convinced by the Teachout brief that has convinced me that requiring U.S. ownership of media companies has a long history and justification. Still, the law comes close to the historical analogies of the Sedition Act and McCarran-Walter Act that were rightfully banned.