The Volokh Conspiracy
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All The Things TikTok v. Garland Did Not Decide
CTRL-F the decision for "need not" and "assume"
Today, the Court affirmed the D.C. Circuit in TikTok v. Garland. In a fairly short period, the Justices mustered a twenty page per curiam decision. Justice Sotomayor wrote a brief concurrence, in which she disagreed with the Court on burdened protected speech. Justice Gorsuch concurred in judgment, disagreeing with the Court on whether the law was content neutral. My prediction of the "administrative injunction" did not come to pass. The opinion is fairly tight. It reads like Roberts and/or Kagan wrote it. I suspect they started on this before briefing concluded.
What struck me about the decision was how much the Court did not decide. One trick is to search the case for hedge words like "need not" and "assume."
Here are a few highlights.
First, the Court announces a ticket good for one ride: like Bush v. Gore, this case is limited to its unique circumstances. No ruling for the ages here:
As Justice Frankfurter advised 80 years ago in considering the application of established legal rules to the "totally newproblems" raised by the airplane and radio, we should take care not to "embarrass the future." Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944). That caution is heightened in these cases, given the expedited time allowed for our consideration. [FN1] Our analysis must be understood to be narrowly focused in light of these circumstances.
[FN1] Applications for an injunction pending review were filed on December16, 2024; we construed the applications as petitions for a writ of certiorari and granted them on December 18, 2024; and oral argument was held on January 10, 2025.
Roberts likes citing Frankfurter, hence my suspicion above.
Second, the Court doesn't actually decide if the law triggers heightened review.
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. We need not do so here. We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny.
Justice Sotomayor would have resolved the First Amendment isue:
I join all but Part II.A 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 leavesno doubt that it does.
No one else joined Sotomayor on this point. We cannot assume that everyone else joined the per curiam opinion, but that is a good assumption in this case.
Third, the Court finds that the statute, as applied to TikTok, is "facially content neutral." But the Court declines to consider an exemption in the statute that does not apply to TikTok, because this is only an as-applied challenge:
Petitioners argue that the Act is content based on its face because it excludes from the definition of "covered company" any company that operates an application "whose primary purpose is to allow users to post product reviews, business reviews, or travel information and reviews." We need not decide whether that exclusion is content based. The question before the Court is whether the Act violates the First Amendment as applied to petitioners. To answer that question, we look to the provisions of the Act that give rise to the effective TikTok ban that petitioners argue burdens their First Amendment rights. The exclusion for certain review platforms, however, applies only to the general framework for designating applications controlled by "covered compan[ies]," not to the TikTok-specific designation.§§2(g)(3)(A)–(B). As such, the exclusion is not within the scope of petitioners' as-applied challenge.
Justice Gorsuch really likes talking about Brandeis and Holmes:
But the question we face today is not the law's wisdom, only its constitutionality. Given just a handful of days afteroral argument to issue an opinion, I cannot profess the kindof certainty I would like to have about the arguments andrecord before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional. As persuaded as I am ofthe wisdom of Justice Brandeis in Whitney and Justice Holmes in Abrams, their cases are not ours. Speaking with and in favor of a foreign adversary is onething. Allowing a foreign adversary to spy on Americans is another.
Justice Gorsuch is not so sure the law is content neutral, and has doubts about scrutiny altogether:
Third, I harbor serious reservations about whether the law before us is "content neutral" and thus escapes "strict scrutiny." More than that, while I do not doubt that the various "tiers of scrutiny" discussed in our case law—"rational basis, strict scrutiny, something(s) in between"—can help focus our analysis, I worry that litigation overthem can sometimes take on a life of its own and do more to obscure than to clarify the ultimate constitutional questions. Riddle v. Hickenlooper, 742 F. 3d 922, 932 (CA102014) (Gorsuch, J., concurring).
In Bruen, the Court wrote that Free Speech cases follow a "text and history" approach. That was news to me! "Text and history" is not mentioned anywhere in this decision.
Fourth, the Court limits is holding based on the vast size of TikTok's data-collection powers:
While we find that differential treatment was justified here, however, we emphasize the inherent narrowness ofour holding. Data collection and analysis is a common practice in this digital age. But TikTok's scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government's national security concerns. A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations. On this understanding, we cannot accept petitioners' call for strict scrutiny. No more than intermediate scrutiny is in order.
Fifth, the Court does not consider any information in the classified record:
Our holding and analysis are based on the public record, without reference to the classified evidence the Government filed below.
Justice Gorsuch's concurrence praises the Court for not going down this road:
Second, I am pleased that the Court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel. Ante, at 13, n. 3. Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns. . . . dissenting). But as the Court recognizes, we have no business considering the government's secret evidence here.
Sixth, the Court declines to consider China's ability to control TikTok's algorithm, to manipulate content. Instead, the Court rules solely based on the data collection justification:
Petitioners have not pointed to any case in which thisCourt has assessed the appropriate level of First Amendment scrutiny for an Act of Congress justified on both content-neutral and content-based grounds. They assert, however, that the challenged provisions are subject to—and fail—strict scrutiny because Congress would not have passed the provisions absent the foreign adversary control rationale. We need not determine the proper standard for mixed-justification cases or decide whether the Government's foreign adversary control justification is content neutral. Even assuming that rationale turns on content, petitioners' argument fails under the counterfactual analysis they propose: The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.
Justice Gorsuch also praises the Court for not going down this road. He fears any sort of government control over the algorithm can pave the way to censorship:
First, the Court rightly refrains from endorsing the government's asserted interest in preventing "the covert manipulation of content" as a justification for the law before us. Brief for Respondent 37. One man's "covert content manipulation" is another's "editorial discretion." . . . "Those who won our independence" knew the vital importance of the "freedom to think as you will and to speak as you think," as well as the dangers that come with repressing the free flow of ideas. Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis, J., concurring). They knew, too, that except in the most extreme situations, "the fitting remedy for evil counsels is good ones." Ibid. Too often in recent years, the government has sought to censor disfavored speech online, as if the internet were somehow exempt from the full sweep of the First Amendment. See, e.g., Murthy v. Missouri, 603 U. S. 43, 76–78 (2024) (ALITO, J., dissenting). But even as times and technologies change, "the principle of the right tofree speech is always the same." Abrams v. United States, 250 U. S. 616, 628 (1919) (Holmes, J., dissenting).
What happens next? Biden has already announced he will not enforce the law. Trump apparently will sign an executive order declining to enforce the law as well. So was there any point to this entire exercise?
