The Volokh Conspiracy
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The TikTok Majority Opinion
Here's a quick summary of the unsigned majority opinion (called a "per curiam"), joined by all the Justices except Justice Gorsuch (who concurred in the result, but with a different analysis) and (in part) Justice Sotomayor:
[1.] The Court expresses some doubt about whether the law triggers First Amendment scrutiny at all. The Court views the law as regulating "corporate control" over TikTok, rather than restricting speech directly, which makes it unclear (in the Court's view) whether the law should be treated as a "direct regulation" of expression.
The Court recognizes that " the Act's prohibitions, TikTok-specific designation, and divestiture requirement 'impose a disproportionate burden upon' their First Amendment activities," and acknowledges that "an effective ban on a social media platform with 170 million U. S. users certainly burdens those users' expressive activity in a non-trivial way." But while the law "will burden various First Amendment activities, including content moderation, content generation, access to a distinct medium for expression, association with another speaker or preferred editor, and receipt of information and ideas,"
[A] law targeting a foreign adversary's control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny. Those differences—the Act's focus on a foreign government, the congressionally determined adversary relationship between that foreign government and the United States, and the causal steps between the regulations and the alleged burden on protected speech—may impact whether First Amendment scrutiny applies.
But after all that, the Court still "assume[s] without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny," because it concludes that they would pass the proper scrutiny (see below).
This is where Justice Sotomayor parts ways with the majority:
TikTok engages in expressive activity by "compiling and curating" material on its platform. Moody v. NetChoice (2024). Laws that "impose a disproportionate burden" upon those engaged in expressive activity are subject to heightened scrutiny under the First Amendment. Arcara v. Cloud Books, Inc. (1986); see Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue (1983). The challenged Act plainly imposes such a burden: It bars any entity from distributing TikTok's speech in the United States, unless TikTok undergoes a qualified divestiture. The Act, moreover, effectively prohibits TikTok from collaborating with certain entities regarding its "content recommendation algorithm" even following a qualified divestiture. And the Act implicates content creators' "right to associate" with their preferred publisher "for the purpose of speaking." That, too, calls for First Amendment scrutiny.
[2.] The Court concludes the law is content-neutral, because it targets TikTok "due to a foreign adversary's control over the platform," and "do[es] not target particular speech based upon its content … or function or purpose"; it thus does not target "the topic discussed or the idea or message expressed." And "The Government also supports the challenged provisions with a content-neutral justification: preventing China from collecting vast amounts of sensitive data from 170 million U. S. TikTok users."
But what about the second argument offered by the government, and accepted by the D.C. Circuit—that the law is aimed in part at "preventing a foreign adversary from having control over the recommendation algorithm that runs a widely used U. S. communications platform, and from being able to wield that control to alter the content on the platform in an undetectable manner"? The Court says that it "need not determine the proper standard for mixed-justification cases or decide whether the Government's foreign adversary control justification is content neutral" because "The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone":
To start, the House Report focuses overwhelmingly on the Government's data collection concerns, noting the "breadth" of TikTok's data collection, "the difficulty in assessing precisely which categories of data" the platform collects, the "tight interlinkages" between TikTok and the Chinese Government, and the Chinese Government's ability to "coerc[e]" companies in China to "provid[e] data." H. R. Rep., at 3; see id., at 5–12 (recounting a five-year record of Government actions raising and attempting to address those very concerns). Indeed, it does not appear that any legislator disputed the national security risks associated with TikTok's data collection practices, and nothing in the legislative record suggests that data collection was anything but an overriding congressional concern. We are especially wary of parsing Congress's motives on this record with regard to an Act passed with striking bipartisan support.
And though "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content," strict scrutiny of those restrictions is nonetheless "unwarranted when the differential treatment is 'justified by some special characteristic of' the particular [speaker] being regulated." Here, "TikTok has special characteristics—a foreign adversary's ability to leverage its control over the platform to collect vast amounts of personal data from 170 million U. S. users—that justify this differential treatment." "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." But a "law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations."
[3.] Such content-neutral restrictions, the Court holds are valid, if they serve "an important Government interest" "and do not burden substantially more speech than necessary to further that interest."
[A.] The interest in "prevent[ing] China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users" is "an important Government interest under intermediate scrutiny":
The platform collects extensive personal information from and about its users. See H. R. Rep., at 3 (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."); 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)). If, for example, a user allows TikTok access to the user's phone contact list to connect with others on the platform, TikTok can access "any data stored in the user's contact list," including names, contact information, contact photos, job titles, and notes.
Access to such detailed information about U. S. users, the Government worries, may enable "China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage." And Chinese law enables China to require companies to surrender data to the government, "making companies headquartered there an espionage tool" of China.
Rather than meaningfully dispute the scope of the data TikTok collects or the ends to which it may be used, petitioners contest probability, asserting that it is "unlikely" that China would "compel TikTok to turn over user data for intelligence-gathering purposes, since China has more effective and efficient means of obtaining relevant information." In reviewing the constitutionality of the Act, however, we "must accord substantial deference to the predictive judgments of Congress." "Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which complete empirical support may be unavailable." Here, the Government's TikTok-related data collection concerns do not exist in isolation. The record reflects that China "has engaged in extensive and years-long efforts to accumulate structured datasets, in particular on U. S. persons, to support its intelligence and counterintelligence operations."
Even if China has not yet leveraged its relationship with ByteDance Ltd. to access U. S. TikTok users' data, petitioners offer no basis for concluding that the Government's determination that China might do so is not at least a "reasonable inferenc[e] based on substantial evidence." We are mindful that this law arises in a context in which "national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess." We thus afford the Government's "informed judgment" substantial respect here.
[B.] And the law "do[es] not burden substantially more speech than necessary to further [the government] interest":
As applied to petitioners, the Act is sufficiently tailored to address the Government's interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million U. S. persons who use TikTok…. The provisions clearly serve the Government's data collection interest "in a direct and effective way." The prohibitions account for the fact that, absent a qualified divestiture, TikTok's very operation in the United States implicates the Government's data collection concerns, while the requirements that make a divestiture "qualified" ensure that those concerns are addressed before TikTok resumes U. S. operations.
Neither the prohibitions nor the divestiture requirement, moreover, is "substantially broader than necessary to achieve" this national security objective. Rather than ban TikTok outright, the Act imposes a conditional ban. The prohibitions prevent China from gathering data from U. S. TikTok users unless and until a qualified divestiture severs China's control.
Petitioners parade a series of alternatives—disclosure requirements, data sharing restrictions, the proposed national security agreement, the general designation provision—that they assert would address the Government's data collection interest in equal measure to a conditional TikTok ban. Those alternatives do not alter our tailoring analysis.
Petitioners' proposed alternatives ignore the "latitude" we afford the Government to design regulatory solutions to address content-neutral interests. "So long as the means chosen are not substantially broader than necessary to achieve the government's interest, … the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative." … Nor did the Government ignore less restrictive approaches already proven effective.
[4.] Nor is there a problem with the law's being "underinclusive as to the Government's data protection concern, raising doubts as to whether the Government is actually pursuing that interest":
"[T]he First Amendment imposes no freestanding underinclusiveness limitation" and the Government "need not address all aspects of a problem in one fell swoop." Williams-Yulee v. Florida Bar (2015) (internal quotation marks omitted). Furthermore, as we have already concluded, the Government had good reason to single out TikTok for special treatment. Contrast Brown v. Entertainment Merchants Assn. (2011) (singling out purveyors of video games for disfavored treatment without a persuasive reason "raise[d] serious doubts about whether the government [wa]s in fact pursuing the interest it invoke[d], rather than disfavoring a particular speaker or viewpoint"). On this record, Congress was justified in specifically addressing its TikTok-related national security concerns.
