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I have been writing about the transformation of the national security exception, which appears to be roaring back to life after a generation of efforts to reduce it to insignificance with the parameters of the so-called Washington Consensus, the social collective premises of the EU, and to some extent version 1.0 of China's Reform and Opening Up. This apotheosis of the national security exception from historical relic to a more vigorous role in the functioning of social-political-economic systems has not been undertaken without a vigorous rearguard action by forces which, once were the vanguard of progressive sentiment and now are in the ironic position of seeking to defend a system, and its cognitive presumptions, which appear, like Brunhilde in Götterdämmerung, to be riding their horses into the funeral pyre of a system of perceiving the world and its forward pathways that is in the process of dying.
Or perhaps, it might best be understood as Nietzsche came to see it--as Götzen rather than Götter-dämmerung. That is, that the apotheosis of national security from out of the ashes of the failures of that intensely beautiful vision of convergence that held elites somewhat together for almost a generation, signifies the fall of fetishes (idols; of artifice with divine features) divinities rather than of the Gods themselves who oer whatever they might be for the community in which the ordering concepts are going up in flames (Götze versus Götter). But an apotheosis of that sort does not come easy; and the rearguard might, in the process of defending the past, create (perhaps without regard to its wider implications) an even more ostentatious conflagration into which to immolate the system it seeks to defend.
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These are the thoughts with which I approached the inversions and transformations that have swirled around the April 2024 Protecting Americans from Foreign Adversary Controlled Applications Act (Public Law 118-50) (set out below). On its face, it represents the determination by those elements of the elected organs of the United States to order certain ownership divestment of a company a product of which has been both wildly popular and also perceived to be a source, or a potential source, of national security vulnerability. It requires divestment within a fairly short period of time and gives the President the authority to extend those time limits once by 90 days. Ostensibly it is completely indifferent to the platform's content and use by its consumers (to the extent that no other laws, properly applied, are violated), nor does it directly seek to shut down the operations of the entity and its much used product (TikTok). However, the operations would be shut down if at the end of the divestment period the ownership of the company within which TikTok is operated continues substantially unchanged (at least with respect to ultimate ownership by or through or traceable to a ‘foreign adversary country’’ defined in 4872(d)(2) of title 10, United States Code as including the Russian Federation, North Korea, the People's Republic of China, and the Islamic Republic of Iran).
Traditionally, as in Europe and, in their own way, like other systems, States have reserved to themselves some sort of a power (vested somewhere within their constitutional premise universe) an authority to protect the State against adversaries foreign and domestic in accordance with the principles and constitutional orderings of their domestic legal orders (eg here)--and in the modern era also subject to their applicable international legal obligations, when it suits them. Traditionally, the principal issue around this authority has not been its existence, but rather it application. Since 1945 the jurisprudence around national security exceptionalism and its manifestation (as well as the processes under which it may be lawfully asserted) have varied widely by action of courts (determine the factors that might be balanced and the value to be assigned to each, as well as to develop an overall set of expectations about its use) (see eg here, here, here, and here).
It is here that the battle over the assertion of the national security exception takes an interesting turn:
TikTok, ByteDance, and a group of TikTok creators challenged the ban in the District of Columbia Circuit Court of Appeals on May 7, 2024. They argue that the law violates TikTok’s and its users’ First Amendment rights by shuttering a unique speech platform. TikTok also argues that by unfairly singling out a single platform for adverse treatment, the law violates its Fifth Amendment equal protection rights. The government has defended its effort to ban TikTok by citing concerns that the Chinese government might direct ByteDance, which is headquartered in China, to covertly manipulate the content that U.S. users view on TikTok or might demand access to Americans’ sensitive data collected by the app. (David Leonhardt, 'Good morning. Today, we’re covering the TikTok arguments at the Supreme Court this morning,' New Yorok Times 10 January 2025).The appellate court in that suit, TikTok Inc., et al. v. Garland, eventually upheld the Statute (No. 24-1113 (D.C. Cir. 2024)). Thereafter, a collection of users, producers of content and those who make money from that platform sought a temporary injunction before the U.S. Supreme Court. Briefs were filed in late December 2024 and a hearing before the Justice occurred in early January 2025 (as a sideshow of sorts the President elect sought some sort of cool down period until he and his incoming administration could focus on this or perhaps use it strategically in light of policy going forward, making for a motley collection of the enemy of my enemy; President-elect Trump's Amicus may be accessed HERE and follows below).
As the ACLU and its partners explain in their amicus briefs, under the First Amendment, we all have the right to speak freely and to receive information from others. To ban an entire communications platform used by tens of millions of Americans, the government must meet an extraordinarily high bar: It must show that the ban is the only way to prevent serious, imminent harm to national security, and that the ban limits no more speech than necessary to accomplish that purpose. But the government has not put forward actual evidence of impending harm—only speculation about what might occur—nor has it shown that banning TikTok is narrowly tailored to address its concerns. The government’s invocation of “national security” does not lessen its burden under the First Amendment. To the contrary, history has shown that courts must be vigilant in the face of broad claims that national security requires trampling on Americans constitutional rights. (ACLU Explainer and Virtual Press Release, TikTok Inc., et al. v. Garland (Amicus)
Much of this is well worn territory. On the one hand there are the traditionalists, like the ACLU, to seeks to preserve and apply a host of cases and the balancing and valuation sensibilities of an era most of the survivors of which are now deeply into their Social Security years. On the others there are the national security progressives who, having witnessed the dissipation of the old order are seeking a broader and contextually relevant application of those standards, or the adoption of others, that are relevant to this moment and this stage in the historical development of the United States. As a matter of jurisprudence, either side makes plausible claims--plausible as a matter of jurisprudence, judged by American standards at least. The decision, then, will have to be based on the way that the justices choose to apply, weigh, and balance criteria today.
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However the case is decided, and my sense is that the law will be upheld, given the trajectories of the reconstitution of global space into fractured imperial operational pathways, and the growing authority of discretionary based systems of techno-bureaucratic management that is in a far more advanced stage in Europe and China than in the US. That done, the parties can all proceed to the political question that has been generously lost in the babble of jurisprudential scholasticism--how does one preserve a useful platform while eliminating the connection between it and foreign forces now deemed a threat. It is that that point that one will witness either Götzen or Götter dämmerung.
Now this is how to philosophize with a hammer!
DIVISION H—PROTECTING AMERICANS
FROM FOREIGN ADVERSARY CON-
TROLLED APPLICATIONS ACT
SEC. 1. SHORT TITLE.
This division may be cited as the ‘‘Protecting Americans from
Foreign Adversary Controlled Applications Act’’.
SEC. 2. PROHIBITION OF FOREIGN ADVERSARY CONTROLLED
APPLICATIONS.
(a) IN GENERAL.—
(1) PROHIBITION OF FOREIGN ADVERSARY CONTROLLED
APPLICATIONS.—It shall be unlawful for an entity to distribute,
maintain, or update (or enable the distribution, maintenance,
or updating of) a foreign adversary controlled application by
carrying out, within the land or maritime borders of the United
States, any of the following:
(A) Providing services to distribute, maintain, or
update such foreign adversary controlled application
(including any source code of such application) by means
of a marketplace (including an online mobile application
store) through which users within the land or maritime
borders of the United States may access, maintain, or
update such application.
(B) Providing internet hosting services to enable the
distribution, maintenance, or updating of such foreign
adversary controlled application for users within the land
or maritime borders of the United States.
(2) APPLICABILITY.—Subject to paragraph (3), this sub-
section shall apply—
(A) in the case of an application that satisfies the
definition of a foreign adversary controlled application
pursuant to subsection (g)(3)(A), beginning on the date
that is 270 days after the date of the enactment of this
division; and
(B) in the case of an application that satisfies the
definition of a foreign adversary controlled application
pursuant to subsection (g)(3)(B), beginning on the date
that is 270 days after the date of the relevant determination
of the President under such subsection.
(3) EXTENSION.—With respect to a foreign adversary con-
trolled application, the President may grant a 1-time extension
of not more than 90 days with respect to the date on which
this subsection would otherwise apply to such application
pursuant to paragraph (2), if the President certifies to Congress
that—
(A) a path to executing a qualified divestiture has
been identified with respect to such application;
(B) evidence of significant progress toward executing
such qualified divestiture has been produced with respect
to such application; and
(C) there are in place the relevant binding legal agree-
ments to enable execution of such qualified divestiture
during the period of such extension.
(b) DATA AND INFORMATION PORTABILITY TO ALTERNATIVE
APPLICATIONS.—Before the date on which a prohibition under sub-
section (a) applies to a foreign adversary controlled application,
the entity that owns or controls such application shall provide,
upon request by a user of such application within the land or
maritime borders of United States, to such user all the available
data related to the account of such user with respect to such
application. Such data shall be provided in a machine readable
format and shall include any data maintained by such application
with respect to the account of such user, including content (including
posts, photos, and videos) and all other account information.
(c) EXEMPTIONS.—
(1) EXEMPTIONS FOR QUALIFIED DIVESTITURES.—Subsection
(a)—
(A) does not apply to a foreign adversary controlled
application with respect to which a qualified divestiture
is executed before the date on which a prohibition under
subsection (a) would begin to apply to such application;
and
(B) shall cease to apply in the case of a foreign
adversary controlled application with respect to which a
qualified divestiture is executed after the date on which
a prohibition under subsection (a) applies to such applica-
tion.
(2) EXEMPTIONS FOR CERTAIN NECESSARY SERVICES.—Sub-
sections (a) and (b) do not apply to services provided with
respect to a foreign adversary controlled application that are
necessary for an entity to attain compliance with such sub-
sections.
(d) ENFORCEMENT.—
(1) CIVIL PENALTIES.—
(A) FOREIGN ADVERSARY CONTROLLED APPLICATION VIO-
LATIONS.—An entity that violates subsection (a) shall be
subject to pay a civil penalty in an amount not to exceed
the amount that results from multiplying $5,000 by the
number of users within the land or maritime borders of
the United States determined to have accessed, maintained,
or updated a foreign adversary controlled application as
a result of such violation.
(B) DATA AND INFORMATION VIOLATIONS.—An entity
that violates subsection (b) shall be subject to pay a civil
penalty in an amount not to exceed the amount that results
from multiplying $500 by the number of users within the
land or maritime borders of the United States affected
by such violation.
(2) ACTIONS BY ATTORNEY GENERAL.—The Attorney Gen-
eral—
(A) shall conduct investigations related to potential
violations of subsection (a) or (b), and, if such an investiga-
tion results in a determination that a violation has
occurred, the Attorney General shall pursue enforcement
under paragraph (1); and
(B) may bring an action in an appropriate district
court of the United States for appropriate relief, including
civil penalties under paragraph (1) or declaratory and
injunctive relief.
(e) SEVERABILITY.—
(1) IN GENERAL.—If any provision of this section or the
application of this section to any person or circumstance is
held invalid, the invalidity shall not affect the other provisions
or applications of this section that can be given effect without
the invalid provision or application.
(2) SUBSEQUENT DETERMINATIONS.—If the application of
any provision of this section is held invalid with respect to
a foreign adversary controlled application that satisfies the
definition of such term pursuant to subsection (g)(3)(A), such
invalidity shall not affect or preclude the application of the
same provision of this section to such foreign adversary con-
trolled application by means of a subsequent determination
pursuant to subsection (g)(3)(B).
(f) RULE OF CONSTRUCTION.—Nothing in this division may be
construed—
(1) to authorize the Attorney General to pursue enforce-
ment, under this section, other than enforcement of subsection
(a) or (b);
(2) to authorize the Attorney General to pursue enforce-
ment, under this section, against an individual user of a foreign
adversary controlled application; or
(3) except as expressly provided herein, to alter or affect
any other authority provided by or established under another
provision of Federal law.
(g) DEFINITIONS.—In this section:
(1) CONTROLLED BY A FOREIGN ADVERSARY.—The term ‘‘con-
trolled by a foreign adversary’’ means, with respect to a covered
company or other entity, that such company or other entity
is— (A) a foreign person that is domiciled in, is
headquartered in, has its principal place of business in,
or is organized under the laws of a foreign adversary
country;
(B) an entity with respect to which a foreign person
or combination of foreign persons described in subpara-
graph (A) directly or indirectly own at least a 20 percent
stake; or
(C) a person subject to the direction or control of a
foreign person or entity described in subparagraph (A)
or (B).
(2) COVERED COMPANY.—
(A) IN GENERAL.—The term ‘‘covered company’’ means
an entity that operates, directly or indirectly (including
through a parent company, subsidiary, or affiliate), a
website, desktop application, mobile application, or aug-
mented or immersive technology application that—
(i) permits a user to create an account or profile
to generate, share, and view text, images, videos, real-
time communications, or similar content;
(ii) has more than 1,000,000 monthly active users
with respect to at least 2 of the 3 months preceding
the date on which a relevant determination of the
President is made pursuant to paragraph (3)(B);
(iii) enables 1 or more users to generate or dis-
tribute content that can be viewed by other users of
the website, desktop application, mobile application,
or augmented or immersive technology application; and
(iv) enables 1 or more users to view content gen-
erated by other users of the website, desktop applica-
tion, mobile application, or augmented or immersive
technology application.
(B) EXCLUSION.—The term ‘‘covered company’’ does not
include an entity that operates a website, desktop applica-
tion, mobile application, or augmented or immersive tech-
nology application whose primary purpose is to allow users
to post product reviews, business reviews, or travel
information and reviews.
(3) FOREIGN ADVERSARY CONTROLLED APPLICATION.—The
term ‘‘foreign adversary controlled application’’ means a
website, desktop application, mobile application, or augmented
or immersive technology application that is operated, directly
or indirectly (including through a parent company, subsidiary,
or affiliate), by—
(A) any of—
(i) ByteDance, Ltd.;
(ii) TikTok;
(iii) a subsidiary of or a successor to an entity
identified in clause (i) or (ii) that is controlled by
a foreign adversary; or
(iv) an entity owned or controlled, directly or
indirectly, by an entity identified in clause (i), (ii),
or (iii); or
(B) a covered company that—
(i) is controlled by a foreign adversary; and
(ii) that is determined by the President to present
a significant threat to the national security of the
United States following the issuance of—
(I) a public notice proposing such determina-
tion; and
(II) a public report to Congress, submitted not
less than 30 days before such determination,
describing the specific national security concern
involved and containing a classified annex and
a description of what assets would need to be
divested to execute a qualified divestiture.
(4) FOREIGN ADVERSARY COUNTRY.—The term ‘‘foreign
adversary country’’ means a country specified in section
4872(d)(2) of title 10, United States Code.
(5) INTERNET HOSTING SERVICE.—The term ‘‘internet
hosting service’’ means a service through which storage and
computing resources are provided to an individual or organiza-
tion for the accommodation and maintenance of 1 or more
websites or online services, and which may include file hosting,
domain name server hosting, cloud hosting, and virtual private
server hosting.
(6) QUALIFIED DIVESTITURE.—The term ‘‘qualified divesti-
ture’’ means a divestiture or similar transaction that—
(A) the President determines, through an interagency
process, would result in the relevant foreign adversary
controlled application no longer being controlled by a for-
eign adversary; and
(B) the President determines, through an interagency
process, precludes the establishment or maintenance of
any operational relationship between the United States
operations of the relevant foreign adversary controlled
application and any formerly affiliated entities that are
controlled by a foreign adversary, including any cooperation
with respect to the operation of a content recommendation
algorithm or an agreement with respect to data sharing.
(7) SOURCE CODE.—The term ‘‘source code’’ means the com-
bination of text and other characters comprising the content,
both viewable and nonviewable, of a software application,
including any publishing language, programming language, pro-
tocol, or functional content, as well as any successor languages
or protocols.
(8) UNITED STATES.—The term ‘‘United States’’ includes
the territories of the United States.
SEC. 3. JUDICIAL REVIEW.
(a) RIGHT OF ACTION.—A petition for review challenging this
division or any action, finding, or determination under this division
15 USC 9901
138 STAT. 960 PUBLIC LAW 118–50—APR. 24, 2024
may be filed only in the United States Court of Appeals for the
District of Columbia Circuit.
(b) EXCLUSIVE JURISDICTION.—The United States Court of
Appeals for the District of Columbia Circuit shall have exclusive
jurisdiction over any challenge to this division or any action, finding,
or determination under this division.
(c) STATUTE OF LIMITATIONS.—A challenge may only be
brought—
(1) in the case of a challenge to this division, not later
than 165 days after the date of the enactment of this division;
and (2) in the case of a challenge to any action, finding, or
determination under this division, not later than 90 days after
the date of such action, finding, or determination.
BRIEF OF PRESIDENT DONALD J. TRUMP AS
AMICUS CURIAE SUPPORTING NEITHER PARTY
December 27, 2024
JAMES OTIS LAW GROUP
D. John Sauer
Counsel of Record
13321 N. Outer Forty Rd.
Suite 300
St. Louis, Missouri 63017
(314) 562-0031
John.Sauer@james-otis.com
Counsel for Amicus Curiae
President Donald J. Trump
i
QUESTION PRESENTED
Whether the Protecting Americans from Foreign
Adversary Controlled Applications Act (“the Act”), as
applied to petitioners, violates the First Amendment.
ii
TABLE OF CONTENTS
QUESTION PRESENTED........................................... i
TABLE OF CONTENTS ............................................ ii
TABLE OF AUTHORITIES ...................................... iii
INTRODUCTION AND INTEREST OF AMICUS
CURIAE PRESIDENT DONALD J. TRUMP ....... 1
SUMMARY OF ARGUMENT ..................................... 4
ARGUMENT ............................................................... 7
I. The Case’s Current Schedule Requires the Court
To Address Unprecedented, Very Significant
Constitutional Questions on a Highly Expedited
Basis. ...................................................................... 8
II. Three Features of the Act, Considered in
Combination, Raise Concerns of Possible
Legislative Encroachment on Executive Authority
Under Article II. ................................................... 10
III.The Case Presents Novel, Difficult, and Significant
First Amendment Questions. .............................. 14
CONCLUSION .......................................................... 18
iii
TABLE OF AUTHORITIES
Cases Page(s)
American Ins. Ass’n v. Garamendi,
539 U.S. 396 (2003) .............................................. 14
Anderson v. Celebrezze,
460 U.S. 780 (1983) ................................................ 1
Ashwander v. Tennessee Valley Auth.,
297 U.S. 288 (1936) ................................................ 9
Certain Named and Unnamed Non-Citizen Children
and Their Parents v. Texas,
448 U.S. 1327 (1980) ........................................... 7-8
Gonzales v. Oregon,
546 U.S. 243 (2006) .............................................. 16
Heckler v. Chaney,
470 U.S. 821 (1985) .............................................. 18
Karcher v. Daggett,
455 U.S. 1303 (1982) .............................................. 8
Loper-Bright Enterprises v. Raimondo,
144 S. Ct. 2244 (2024) .......................................... 14
McLeod v. Gen. Elec. Co.,
87 S. Ct. 5 (1966) ................................................. 7-8
Missouri v. Biden,
83 F.4th 350 (5th Cir. 2023) ................................ 17
Missouri v. Biden,
680 F. Supp. 3d 630 (W.D. La. 2023) .................. 17
Monitor Patriot Co. v. Roy,
401 U.S. 265 (1971) .......................................... 2, 17
Murthy v. Missouri,
603 U.S. 43 (2024) ................................................ 18
Shiffman v. Selective Serv. Bd. No.5,
88 S. Ct. 1831 (1968) .............................................. 7
iv
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) .......................................... 2, 17
Times-Picayune Publ’g Corp. v. Schulingkamp,
419 U.S. 1301 (1974) .............................................. 8
Trump v. United States,
603 U.S. 593 (2024) ............................. 5, 8-9, 12, 16
United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304 (1936) ..................................... 5, 12-13
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .............................................. 11
Zivotofsky ex rel. Zivotofsky v. Kerry,
576 U.S. 1 (2015) ................................... 6, 11-12, 14
Zubik v. Burwell,
578 U.S. 403 (2016) ....................................... 5, 9-10
Regulatory Authority
Addressing the Threat Posed by TikTok, 85 Fed. Reg.
48637 (Aug. 6, 2020) ........................................ 3, 15
Regarding the Acquisition of Musical.ly by ByteDance
Ltd., 85 Fed. Reg. 51297 (Aug. 14, 2020) ........ 3, 15
Other Authorities
8 U.S. Sen. Reports Comm. on Foreign Relations (Feb.
15, 1816) ............................................................... 12
Brazil’s Supreme Court Lifts Ban on Social Media Site
X, CBS NEWS (Oct. 8, 2024),
https://www.cbsnews.com/news/brazil-supreme-
court-lifts-ban-social-media-site-x-elon-musk/
.......................................................................... 2, 16
Briefing Scheduling in United States v. Trump, No.
23-3228 (D.C. Cir. Dec. 13, 2023) .......................... 8
Donald J. Trump (@realDonaldTrump), Truth Social
(Sept. 4, 2024, 3:51 p.m.),
v
https://truthsocial.com/@realDonaldTrump/posts/
113081258242253706 ............................................ 3
THE FEDERALIST NO. 70 (A. Hamilton) ..................... 14
1
INTRODUCTION AND INTEREST OF AMICUS
CURIAE PRESIDENT DONALD J. TRUMP1
Amicus curiae President Donald J. Trump
(“President Trump”) is the 45th and soon to be the
47th President of the United States of America. On
January 20, 2025, President Trump will assume
responsibility for the United States’ national security,
foreign policy, and other vital executive functions.
This case presents an unprecedented, novel, and
difficult tension between free-speech rights on one
side, and foreign policy and national-security concerns
on the other. As the incoming Chief Executive,
President Trump has a particularly powerful interest
in and responsibility for those national-security and
foreign-policy questions, and he is the right
constitutional actor to resolve the dispute through
political means.
President Trump also has a unique interest in the
First Amendment issues raised in this case. Through
his historic victory on November 5, 2024, President
Trump received a powerful electoral mandate from
American voters to protect the free-speech rights of all
Americans—including the 170 million Americans who
use TikTok. President Trump is uniquely situated to
vindicate these interests, because “the President and
the Vice President of the United States are the only
elected officials who represent all the voters in the
Nation.” Anderson v. Celebrezze, 460 U.S. 780, 795
(1983).
1 This brief was not authored in whole or in part by counsel for
any party, and no party or party’s counsel has made a monetary
contribution toward the brief’s preparation or submission.
2
Moreover, President Trump is one of the most
powerful, prolific, and influential users of social media
in history. Consistent with his commanding presence
in this area, President Trump currently has 14.7
million followers on TikTok with whom he actively
communicates, allowing him to evaluate TikTok’s
importance as a unique medium for freedom of
expression, including core political speech. Indeed,
President Trump and his rival both used TikTok to
connect with voters during the recent Presidential
election campaign, with President Trump doing so
much more effectively. As this Court instructs, the
First Amendment’s “constitutional guarantee has its
fullest and most urgent application precisely to the
conduct of campaigns for political office.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 162 (2014)
(quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971)).
Further, President Trump is the founder of
another resoundingly successful social-media
platform, Truth Social. This gives him an in-depth
perspective on the extraordinary government power
attempted to be exercised in this case—the power of
the federal government to effectively shut down a
social-media platform favored by tens of millions of
Americans, based in large part on concerns about
disfavored content on that platform. President Trump
is keenly aware of the historic dangers presented by
such a precedent. For example, shortly after the Act
was passed, Brazil banned the social-media platform
X (formerly known as Twitter) for more than a month,
based in large part on that government’s disfavor of
political speech on X. See, e.g., Brazil’s Supreme Court
3
Lifts Ban on Social Media Site X, CBS NEWS (Oct. 8,
2024).2
In light of these interests—including, most
importantly, his overarching responsibility for the
United States’ national security and foreign policy—
President Trump opposes banning TikTok in the
United States at this juncture, and seeks the ability
to resolve the issues at hand through political means
once he takes office. On September 4, 2024, President
Trump posted on Truth Social, “FOR ALL THOSE
THAT WANT TO SAVE TIK TOK IN AMERICA,
VOTE TRUMP!”3
Furthermore, President Trump alone possesses
the consummate dealmaking expertise, the electoral
mandate, and the political will to negotiate a
resolution to save the platform while addressing the
national security concerns expressed by the
Government—concerns which President Trump
himself has acknowledged. See, e.g., Executive Order
No. 13942, Addressing the Threat Posed by TikTok, 85
Fed. Reg. 48637, 48637 (Aug. 6, 2020); Regarding the
Acquisition of Musical.ly by ByteDance Ltd., 85 Fed.
Reg. 51297, 51297 (Aug. 14, 2020). Indeed, President
Trump’s first Term was highlighted by a series of
policy triumphs achieved through historic deals, and
he has a great prospect of success in this latest
national security and foreign policy endeavor.
2 At https://www.cbsnews.com/news/brazil-supreme-court-lifts-
ban-social-media-site-x-elon-musk/.
3 At https://truthsocial.com/@realDonaldTrump/posts/
113081258242253706.
4
The 270-day deadline imposed by the Act expires
on January 19, 2025—one day before President
Trump will assume Office as the 47th President of the
United States. This unfortunate timing interferes
with President Trump’s ability to manage the United
States’ foreign policy and to pursue a resolution to
both protect national security and save a social-media
platform that provides a popular vehicle for 170
million Americans to exercise their core First
Amendment rights. The Act imposes the timing
constraint, moreover, without specifying any
compelling government interest in that particular
deadline. In fact, the Act itself contemplates a 90-day
extension to the deadline under certain specified
circumstances. Pet.App.97a, § 2(a)(3)(A)-(C).
President Trump, therefore, has a compelling
interest as the incoming embodiment of the Executive
Branch in seeing the statutory deadline stayed to
allow his incoming Administration the opportunity to
seek a negotiated resolution of these questions. If
successful, such a resolution would obviate the need
for this Court to decide the historically challenging
First Amendment question presented here on the
current, highly expedited basis.
SUMMARY OF ARGUMENT
President Trump takes no position on the merits of
the dispute. Instead, he urges the Court to stay the
statute’s effective date to allow his incoming
Administration to pursue a negotiated resolution that
could prevent a nationwide shutdown of TikTok, thus
preserving the First Amendment rights of tens of
millions of Americans, while also addressing the
government’s national security concerns. If achieved,
such a resolution would obviate the need for this
5
Court to decide extremely difficult questions on the
current, highly expedited schedule.
There is ample justification for the Court to stay
the January 19 deadline—by which divestment for
ByteDance must occur, or else TikTok will face an
effective shut-down in the United States—while it
considers the merits of the case. First, this Court has
aptly cautioned against deciding “unprecedented” and
“very significant constitutional questions” on a
“highly expedited basis.” Trump v. United States, 603
U.S. 593, 616 (2024). Due to the Act’s deadline for
divestment and the timing of the D.C. Circuit’s
decision, this Court now faces the prospect of deciding
extremely difficult questions on exactly such a “highly
expedited basis.
” Staying this deadline would provide
breathing space for the Court to consider the
questions on a more measured schedule, and it would
provide President Trump’s incoming Administration
an opportunity to pursue a negotiated resolution of
the conflict. Indeed, the Court recently pursued a
similar course in Zubik v. Burwell, vacating lower-
court decisions and pausing the enforcement of HHS’s
contraceptive mandate against religious
organizations to “allow the parties sufficient time to
resolve any outstanding issues between them.” 578
U.S. 403, 408 (2016) (per curiam).
Second, three features of the Act raise concerns
about possible legislative encroachment on
prerogatives of the Executive Branch under Article II.
First, the Act dictates that the President must make
a particular national-security determination as to
TikTok alone, while granting the President a greater
“degree of discretion and freedom from statutory
restriction” as to all other social-media platforms.
United States v. Curtiss-Wright Exp. Corp., 299 U.S.
304, 320 (1936). Second, the Act mandates that the
6
President must exercise his power over foreign affairs
“through an interagency process” commanded by
Congress, instead of exercising his sole discretion over
the deliberative processes of the Executive Branch.
Pet.App.19a. Third, the Act—due to its signing date—
now imposes a deadline for divestment that falls one
day before the incoming Administration takes power.
Especially when viewed in combination, these unique
features of the Act raise significant concerns about
possible legislative encroachment upon the
President’s prerogative to manage the Nation’s
geopolitical, strategic relationships overall, and with
one of our most significant counterparts, China,
specifically. This is an area where the Nation must
“speak ... with one voice,
” and “[t]hat voice must be the
President’s.” Zivotofsky ex rel. Zivotofsky v. Kerry, 576
U.S. 1, 14 (2015) (citation omitted).
Third, the First Amendment implications of the
federal government’s effective shuttering of a social-
media platform used by 170 million Americans are
sweeping and troubling. There are valid concerns
that the Act may set a dangerous global precedent by
exercising the extraordinary power to shut down an
entire social-media platform based, in large part, on
concerns about disfavored speech on that platform.
Perhaps not coincidentally, soon after the Act was
passed, another major Western democracy—Brazil—
shut down another entire social-media platform, X
(formerly known as Twitter), for more than a month,
apparently based on that government’s desire to
suppress disfavored political speech. Moreover,
despite the Act’s enormous impact on the speech of
170 million TikTok users, the D.C. Circuit’s opinion
grants only cursory consideration to the free-speech
interests of Americans, while granting decisive weight
and near-plenary deference to the views of national-
7
security officials. Yet the history of the past several
years, and beyond, includes troubling, well-
documented abuses by such federal officials in seeking
the social-media censorship of ordinary Americans.
In light of the novelty and difficulty of this case,
the Court should consider staying the statutory
deadline to grant more breathing space to address
these issues. The Act itself contemplates the
possibility of a 90-day extension, indicating that the
270-day deadline lacks talismanic significance. Such
a stay would vitally grant President Trump the
opportunity to pursue a political resolution that could
obviate the Court’s need to decide these
constitutionally significant questions.
ARGUMENT
This Court may grant a stay to preserve the status
quo in a case that presents novel and difficult
questions of great constitutional significance. The
granting of such a stay does not necessarily forecast
one party’s likelihood of success on the merits.
A stay may be warranted where “[t]he underlying
issue in th[e] case … has not heretofore been passed
upon by this Court and is of continuing importance.”
McLeod v. Gen. Elec. Co., 87 S. Ct. 5, 6 (1966) (Harlan,
J.). “[T]he existence of an important question not
previously passed on by the Court” is a factor that
weighs in favor of a stay. Shiffman v. Selective Serv.
Bd. No.5, 88 S. Ct. 1831, 1832 n.3 (1968) (Douglas, J.,
dissenting); Certain Named and Unnamed Non-
Citizen Children and Their Parents v. Texas, 448 U.S.
1327, 1332 (1980) (Powell, J., in chambers) (holding
that a case that “presents novel and important issues”
warrants a stay). Where the appeal “raises a difficult
question of constitutional significance” that “also
8
involves a pressing national problem,” a stay may be
warranted. Texas, 448 U.S. at 1331.
The moving party’s likelihood of success on the
merits is not an absolute prerequisite for such a stay.
Instead, in extraordinary cases, a “fair prospect of
reversal” may suffice. Karcher v. Daggett, 455 U.S.
1303, 1306 (1982) (Brennan, J., in chambers). Such a
“fair prospect of reversal” may exist when “[t]he issues
underlying this case are important and difficult,” and
the “fair prospect” standard does not require
“anticipating [the Court’s] views on the merits.”
Times-Picayune Publ’g Corp. v. Schulingkamp, 419
U.S. 1301, 1309 (1974) (Powell, J., in chambers). A
stay may be warranted when the “petitioner’s position
… cannot be deemed insubstantial,” McLeod, 87 S. Ct.
at 6, and the Court need not “think it more probable
than not that” reversal will occur, Texas, 448 U.S. at
1332.
I. The Case’s Current Schedule Requires the
Court To Address Unprecedented, Very
Significant Constitutional Questions on a
Highly Expedited Basis.
In Trump v. United States, this Court expressed
the concern that “[d]espite the unprecedented nature
of this case, and the very significant constitutional
questions that it raises, the lower courts rendered
their decisions on a highly expedited basis.” 603 U.S.
593, 616 (2024). Due to the deadline imposed by the
Act and the timing of the D.C. Circuit’s decision below,
this Court now faces the prospect of considering
“unprecedented” and “very significant constitutional
questions” on virtually the same “highly expedited
basis” on which the D.C. Circuit acted in that historic
case. See Briefing Scheduling in United States v.
Trump, No. 23-3228 (D.C. Cir. Dec. 13, 2023)
(adopting a briefing schedule on Presidential
9
immunity with opening briefs due on December 23
and oral argument on January 9).
In light of this Court’s well-placed concerns about
the “highly expedited” resolution of novel, difficult,
and “very significant” constitutional questions,
Trump, 603 U.S. at 616, the Court should consider
staying the statutory deadline for divestment and
taking time to consider the merits in the ordinary
course. Such an approach would allow this Court
more breathing space to consider the merits, and it
would also allow President Trump’s Administration
the opportunity to pursue a negotiated resolution
that, if successful, would obviate the need for this
Court to decide these questions. See Ashwander v.
Tennessee Valley Auth., 297 U.S. 288, 341 (1936)
(Brandeis, J., concurring).
This Court’s recent precedent provides support for
this approach. For example, in Zubik, facing novel
and difficult questions of religious liberty, this Court
vacated the judgments of several federal courts of
appeals and directed the lower courts on remand to
“allow” the federal government and private
petitioners “sufficient time to resolve any outstanding
issues between them.” 578 U.S. at 408. Two factors
influenced the Court’s decision: (1) the “gravity of the
dispute,” and (2) the fact that a political resolution
that could obviate the need for the federal courts to
decide difficult constitutional questions seemed
feasible. Id.
The Court should consider a similar approach
here. Staying the statutory deadline for divestment
would reflect “the gravity of the dispute,” and it would
give “the parties”—especially the Government, under
the new leadership of President Trump—“an
opportunity to arrive at an approach going forward
10
that accommodates” the free speech interests of the
170 million Americans who use TikTok, “while at the
same time ensuring” that the Government’s national
security concerns are adequately protected. Id.
This approach also draws support from the fact
that the January 19, 2025, deadline for divestment
falls one day before President Trump takes office, and
is unfortunately timed to bind the hands of the
incoming Trump Administration on a significant issue
of national security and foreign policy. As discussed
below, this feature of the Act, combined with others,
raises significant concerns under Article II of the
Constitution.
II. Three Features of the Act, Considered in
Combination, Raise Concerns of Possible
Legislative Encroachment on Executive
Authority Under Article II.
Three features of the Act, especially when
considered in combination, raise concerns about
possible legislative encroachment on Executive
authority under Article II, including the Executive’s
power over national security and foreign affairs.
These serious questions alone warrant staying the
statutory deadline for more measured consideration.
First, while the Act defers to the Executive’s
determinations as to all other social-media platforms,
when it comes to TikTok, the Act takes that
determination out of the Executive’s hands.
Pet.App.99a-100a, § 2(g)(3)(A); contrast id. at 100a
§ 2(g)(3)(B)(ii). As to TikTok alone, the Act makes the
determination for the Executive Branch—thus
effectively binding the hands of the incoming Trump
Administration on a significant point of foreign policy.
See, e.g., Pet.App.29a. But the Executive, not
11
Congress, is primarily charged with responsibility for
the United States’ national security, its foreign policy,
and its strategic relationship with its geopolitical
rivals. Whether Congress may dictate a particular
outcome by the Executive Branch on such a
significant, fact-intensive question of national
security raises a significant question under Article II.
Second, the statute purports to dictate how the
President must exercise his national security and
foreign affairs authority in this sensitive area, by
mandating that the President must make key
determinations “through an interagency process.”
Pet.App.100a, § 2(g)(6)(A)-(B). Whether Congress has
authority to dictate the specific intra-Executive
procedures through which the President must
exercise his foreign affairs power presents another
significant constitutional question.
Third, as the Act was signed on April 24, 2024, the
statutory deadline for divestment falls on the day
before President Trump’s inauguration, raising
concerns that the Act effectively forestalls the
incoming Administration’s ability to address the
question. At very least, this timing raises yet another
significant question under Article II—a concern
reinforced by the first two overlapping concerns.
“In foreign affairs, as in the domestic realm, the
Constitution ‘enjoins upon its branches separateness
but interdependence, autonomy but reciprocity.’”
Zivotofsky, 576 U.S. at 16 (quoting Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)
(Jackson, J., concurring)). Yet this Court has long
recognized that there are certain areas within the
domain of foreign affairs that constitute “exclusive
power[s] of the President,” such that “Congressional
commands contrary to the President’s …
12
determinations are thus invalid.” Trump, 603 U.S. at
609 (citing Zivotofsky, 576 U.S. at 32).
Further, this Court has long emphasized the
general primacy of Executive authority in this area.
“In this vast external realm” of foreign affairs,
“with
its important, complicated, delicate and manifold
problems, the President alone has the power to speak
or listen as a representative of the nation.” Curtiss-
Wright, 299 U.S. at 319. When it comes to treaty
negotiation, for example, “[i]nto the field of
negotiation the Senate cannot intrude; and Congress
itself is powerless to invade it.” Id. Though this Court
cautions that the President’s foreign-affairs power is
not “unbounded,” Zivotofsky, 576 U.S. at 20, and
Congress plays a significant role as well, id., the
primary authority of the Executive Branch in this
area is long acknowledged.
In Curtiss-Wright, this Court observed that “[t]he
President is the constitutional representative of the
United States with regard to foreign nations. He
manages our concerns with foreign nations and must
necessarily be most competent to determine when,
how, and upon what subjects negotiation may be
urged with the greatest prospect of success.” 299 U.S.
at 319 (quoting 8 U.S. Sen. Reports Comm. on Foreign
Relations, at 24 (Feb. 15, 1816)). “[T]he very delicate,
plenary and exclusive power of the President as the
sole organ of the federal government in the field of
international relations” is “a power which does not
require as a basis for its exercise an act of
Congress….” Id. at 320; see also Zivotofsky, 576 U.S.
at 14 (recognizing that “functional considerations”
dictate that “the Nation must have a single policy”
regarding foreign-state recognition).
13
Thus, “congressional legislation which is to be
made effective through negotiation and inquiry within
the international field must often accord to the
President a degree of discretion and freedom from
statutory restriction which would not be admissible
were domestic affairs alone involved.” Curtiss-
Wright, 299 U.S. at 320 (emphasis added).
Ultimately, the President, “not Congress, has the
better opportunity of knowing the conditions which
prevail in foreign countries….” Id.
Under these principles, the three features of the
statute noted above—especially considered in
combination—raise concerns of possible legislative
encroachment on Executive authority. First, as noted
above, the statute defers to the Executive Branch’s
determinations of national security risks as to every
other social-media platform, but when it comes to
TikTok alone, the Act purports to make the
determination for the Executive Branch. Pet.App.
99a-100a, § 2(g)(3)(A), (B). This singling out of TikTok
raises a serious question whether the Act grants the
President the requisite “degree of discretion and
freedom from statutory restriction” in his conduct of
foreign affairs, Curtiss-Wright, 299 U.S. at 320. This
question is particularly significant in the context of
the Nation’s complex, ever-evolving relationship with
one of its most challenging geopolitical rivals.
Second, the statute mandates that the President
must make key foreign policy determinations through
a specific, dictated procedure, i.e., “through an
interagency process.
” Pet.App.100a, § 2(g)(6)(A)-(B).
Whether Congress has the authority to dictate that
the President must use certain specific procedures to
make sensitive national-security determinations
presents a significant constitutional question. At the
14
very least, if the President’s authority is bound by the
recommendations or conclusions of such an
“interagency process,” the provision would raise grave
Article II concerns. Cf. Loper-Bright Enterprises v.
Raimondo, 144 S. Ct. 2244 (2024).
Third, the Act was signed on April 24, 2024, thus
triggering a 270-day deadline for divestment by
January 19, 2025—one day before President Biden’s
successor would take office. Pet.App.97a, § 2(a)(2).
This timing binds the hands of the incoming
Administration on a significant issue of national
security and foreign policy, and thus it raises
significant questions under Article II. When it comes
to foreign policy regarding our geopolitical rivals, the
Executive Branch must “speak ... with one voice,
” and
“[t]hat voice must be the President’s.” Zivotofsky, 576
U.S. at 14 (quoting, in part, American Ins. Ass’
n v.
Garamendi, 539 U.S. 396, 424 (2003)). “Between the
two political branches, only the Executive has the
characteristic of unity at all times. And with unity
comes the ability to exercise, to a greater degree,
‘[d]ecision, activity, secrecy, and dispatch.’” Id.
(quoting THE FEDERALIST NO. 70, at 424 (A.
Hamilton)). This principle applies not just to the
outgoing, but also—and arguably with even more
strength due to the fact that it is that President which
will be left to handle the results of any such action—
the incoming President of the United States.
III. The Case Presents Novel, Difficult, and
Significant First Amendment Questions.
A stay of the statutory deadline is also justified on
the basis that the case presents a novel, difficult, and
significant tension between national security
concerns and the free speech interests of over 170
million ordinary Americans.
15
To be sure, the national security concerns
presented by ByteDance and TikTok appear to be
significant and pressing. No one knows this better
than President Trump, who has issued multiple
orders expressing concerns similar to those that the
Government cites to defend the Act. See Executive
Order No. 13942, Addressing the Threat Posed by
TikTok, 85 Fed. Reg. 48637 (Aug. 6, 2020); Regarding
the Acquisition of Musical.ly by ByteDance Ltd., 85
Fed. Reg. 51297 (Aug. 14, 2020).
On the other hand, neither the United States’
relationship with the People’s Republic of China, nor
the federal government’s involvement in social-media
censorship, has remained static during the last four
years. On the contrary, recent historical
developments reinforce the significant First
Amendment concerns raised by the petitioners here.
First, as discussed above, the President alone, not
Congress or the federal courts, is charged with the
primary responsibility for the United States’ national
security and foreign policy—a responsibility that
President Trump will assume on January 20, 2025,
one day after the Act’s arbitrary deadline, which may
be extended under the terms of the Act itself.
Second, the Act exercises an extraordinary
power—the power to effectively shut down an entire
social-media platform with over 170 million domestic
users based in large part on the government’s
concerns about disfavored speech on the platform.
The exercise of this power risks inadvertently setting
a troubling global precedent. A few months after the
Act was passed, Brazil—a Western democracy of more
than 216 million people—shut down the platform X
(formerly Twitter) within its borders for more than a
month. Brazil’s action was reportedly linked to
16
government officials’ demands that X censor specific
speakers who were critical of the government: “On
Aug. 31, tensions came to a head when [a Brazilian
judge] dramatically blocked X for failing to deactivate
the accounts of dozens of supporters of former far-
right president Jair Bolsonaro….” Brazil’s Supreme
Court Lifts Ban on Social Media Site X, supra.
Reportedly, Brazilian officials “had been feuding [with
X] for months … over allegations that X was
supporting a network of people known as digital
militias who allegedly spread defamatory fake news
and threats against Supreme Court justices.” Id.
The close chronological sequence is startling—and
troubling. This Court should be deeply concerned
about setting a precedent that could create a slippery
slope toward global government censorship of social-
media speech. The power of a Western government to
ban an entire social-media platform with more than
100 million users, at the very least, should be
considered and exercised with the most extreme
care—not reviewed on a “highly expedited basis.”
Trump, 603 U.S. at 616.
Third, the D.C. Circuit’s majority opinion gives
limited consideration and weight to the free-speech
interests of the over 170 million Americans who use
TikTok. After exhaustively analyzing the
government’s interest and concerns, the opinion
belatedly acknowledges in its conclusion that “this
decision has significant implications for TikTok and
its users.” Pet.App.65a. This recital “tests the limits
of understatement.” Gonzales v. Oregon, 546 U.S.
243, 286 (2006) (Scalia, J., dissenting). TikTok’s over
170 million users include American content creators
whose entire livelihood may rest on their use of the
platform. Those users include political candidates
employing TikTok to reach new audiences with core
17
political speech in their “campaigns for political
office,” during which the First Amendment’s
“constitutional guarantee has its fullest and most
urgent application.” Susan B. Anthony List, 573 U.S.
at 162 (quoting Monitor Patriot Co., 401 U.S. at 272).
They include grandparents sharing videos of beloved
grandchildren, teenagers connecting with friends, and
people posting rather silly viral videos—in other
words, the entire range of protected freedom of
expression, from momentous to trivial, all of which
faces a government-ordered shut-down.
By contrast, while purportedly applying strict
scrutiny, the D.C. Circuit’s opinion confers near-
plenary deference to the say-so of national-security
officials on matters of social-media censorship. See,
e.g., Pet.App.32a, 33a, 38a, 43a-44a, 47a-48a, 52a.
Yet, in the last four years, federal officials—including
national-security officials—have repeatedly procured
social-media censorship of disfavored content and
viewpoints through a combination of pressure,
coercion, and deception. See, e.g., Missouri v. Biden,
680 F. Supp. 3d 630, 675-679, 693, 701-03 (W.D. La.
2023); Missouri v. Biden, 83 F.4th 350, 365, 388-92
(5th Cir. 2023), both rev’d on other grounds sub nom.
Murthy v. Missouri, 603 U.S. 43 (2024). For example,
in late 2020, federal national security officials “likely
misled social-media companies into believing the
Hunter Biden laptop story was Russian
disinformation, which resulted in [wrongful]
suppression of the story a few weeks prior to the 2020
Presidential election,” and this deliberate campaign of
“deception” was “just another form of coercion.”
Missouri, 680 F. Supp. 3d at 702. Likewise, “[f]or
months in 2021 and 2022, a coterie of officials at the
highest levels of the Federal Government
continuously harried and implicitly threatened
18
Facebook with potentially crippling consequences if it
did not comply with their wishes about the
suppression of certain COVID–19-related speech. Not
surprisingly, Facebook repeatedly yielded.” Murthy,
603 U.S. at 79 (Alito, J., dissenting).
There is a jarring parallel between the D.C.
Circuit’s near-plenary deference to national security
officials calling for social-media censorship, and the
recent, well-documented history of federal officials’
extensive involvement in social-media censorship
efforts directed at the speech of tens of millions
Americans. See Murthy, 603 U.S. at 78. This recent
history of sheds new light on the Act’s stark
restriction—a restriction which impacts the free-
speech interests of over 170 million Americans with “a
blunderbuss” rather than “a scalpel.” Heckler v.
Chaney, 470 U.S. 821, 852 (1985) (Marshall, J.,
concurring in the judgment).
In short, there are compelling reasons to stay the
Act’s deadline and allow President Trump to seek a
negotiated resolution once in office.
CONCLUSION
President Trump takes no position on the
underlying merits of this dispute. Instead, he
respectfully requests that the Court consider staying
the Act’s deadline for divestment of January 19, 2025,
while it considers the merits of this case, thus
permitting President Trump’s incoming
Administration the opportunity to pursue a political
resolution of the questions at issue in the case.
19
December 27, 2024 Respectfully submitted,
JAMES OTIS LAW GROUP
D. John Sauer
Counsel of Record
TIK TOK BRIEF
BRIEF FOR PETITIONERS
Alexander A. Berengaut
David M. Zionts
Megan A. Crowley
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
(202) 662-6000
Noel J. Francisco
Counsel of Record
Hashim M. Mooppan
Kelly Holt Rodriguez
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
(202) 879-3939
njfrancisco@jonesday.com
Counsel for Petitioners
(Additional Counsel Listed in Signature Block)
QUESTION PRESENTED
Whether the Protecting Americans from Foreign
Adversary Controlled Applications Act, as applied to
Petitioners, violates the First Amendment.
ii
CORPORATE DISCLOSURE STATEMENT,
PARTIES TO THE PROCEEDINGS, AND
RELATED PROCEEDINGS
Petitioners, who were Petitioners in the lead case
in the D.C. Circuit, are TikTok Inc. and ByteDance
Ltd. Pursuant to Rule 29.6, Petitioner TikTok Inc. is
a wholly owned subsidiary of TikTok LLC; TikTok
LLC is a wholly owned subsidiary of TikTok Ltd.;
and TikTok Ltd. is a wholly owned subsidiary of
Petitioner ByteDance Ltd., a privately held
corporation. No publicly traded company owns 10%
or more of Petitioners’ stock.
Respondent, who was Respondent in the D.C.
Circuit, is Merrick B. Garland, in his official capacity
as Attorney General of the United States.
Related proceedings in the D.C. Circuit were
TikTok Inc. v. Garland, No. 24-1113, consolidated
with Firebaugh v. Garland, No. 24-1130, and BASED
Politics Inc. v. Garland, No. 24-1183.
Petitioners in the consolidated proceedings below
were Brian Firebaugh, Chloe Joy Sexton, Talia
Cadet, Timothy Martin, Kiera Spann, Paul Tran,
Christopher Townsend, and Steven King (Petitioners
in Firebaugh v. Garland, No. 24-1130); and BASED
Politics Inc. (Petitioner in BASED Politics Inc. v.
Garland, No. 24-1183). They all are Petitioners in
the consolidated case in this Court. No. 24-657.
The D.C. Circuit’s opinion and judgment denying
petitions for review was entered December 6, 2024.
The D.C. Circuit’s order denying injunction pending
this Court’s review was entered December 13, 2024.
A parallel challenge remains pending in the D.C.
Circuit. Kennedy v. Garland, No. 24-1316.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED..........................................i
CORPORATE DISCLOSURE STATEMENT,
PARTIES TO THE PROCEEDINGS, AND
RELATED PROCEEDINGS ............................... ii
TABLE OF AUTHORITIES ...................................... vi
OPINION BELOW ..................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................................. 1
INTRODUCTION ....................................................... 2
STATEMENT OF THE CASE ................................... 7
A. TikTok Is A Unique Speech Platform
Used By 170 Million Americans ................... 7
B. TikTok Inc. Is An American Company
That Provides The TikTok Platform In
This Country .................................................. 8
C. Petitioners Have Worked To Address
The Government’s National-Security
Concerns ...................................................... 10
D. Congress Banned Petitioners From
Operating TikTok In America ..................... 12
E. Legislators Repeatedly Expressed
Disagreement With The Content On
TikTok .......................................................... 15
F. Proceedings Below ....................................... 16
SUMMARY OF ARGUMENT .................................. 18
iv
ARGUMENT ............................................................ 20
AS APPLIED TO PETITIONERS, THE ACT
VIOLATES THE FIRST AMENDMENT .......... 20
I. THE ACT’S TIKTOK-SPECIFIC PROVISION IS
SUBJECT TO STRICT SCRUTINY ............................ 20
A. The Act Severely Burdens The
Expression Of TikTok Inc., An
American Company Protected By The
First Amendment ........................................ 20
B. The Act’s Coverage Of Petitioners Is
Both Content-Based And Speaker-
Based, Triggering Strict Scrutiny ............... 25
C. Arguments For Lesser Scrutiny Are
Meritless ...................................................... 27
II. THE ACT’S TIKTOK-SPECIFIC PROVISION
DOES NOT SATISFY STRICT (OR EVEN
INTERMEDIATE) SCRUTINY .................................. 31
A. Strict Scrutiny Is A Demanding,
Rarely Satisfied Standard ........................... 31
B. The Government’s Asserted Interests
Are Facially Deficient .................................. 35
1. The content-manipulation interest
asserted is facially impermissible ........ 35
2. The data-protection interest
asserted is facially inadequate ............. 41
C. The Government Did Not Prove That
The Act Is Narrowly Tailored ..................... 44
1. The Government failed to consider
less-restrictive alternatives .................. 44
v
2. The D.C. Circuit failed to hold the
Government to its evidentiary
burden.................................................... 47
D. At Minimum, Congress Failed To
Justify Subjecting TikTok To More
Than The Act’s General Provision
Applicable To All Other Speakers .............. 51
CONCLUSION ......................................................... 56
APPENDIX A: Protecting Americans from
Foreign Adversary Controlled Applications
Act, Pub. L. No. 118-50, div. H, 138 Stat.
895, 955-60 (2024) .............................................. 1a
APPENDIX B: United States Constitution
Amendment I ................................................... 13a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, Inc.,
591 U.S. 430 (2020) ............................ 22, 23, 27, 43
Arcara v. Cloud Books, Inc.,
478 U.S. 697 (1986) .............................................. 28
Arizona Free Enter. Club’s Freedom
Club PAC v. Bennett,
564 U.S. 721 (2011) .............................................. 32
Ashcroft v. ACLU,
542 U.S. 656 (2004) .............................................. 47
Barr v. Am. Ass’n of Pol. Consultants, Inc.,
591 U.S. 610 (2020) .............................................. 32
Boy Scouts of Am. v. Dale,
530 U.S. 640 (2000) ........................................ 26, 29
Brandenburg v. Ohio,
395 U.S. 444 (1969) .............................................. 40
Brown v. Ent. Merchants Ass’n,
564 U.S. 786 (2011) ......... 22, 31, 32, 36, 41, 42, 49
Buckley v. Valeo,
424 U.S. 1 (1976) .................................................. 37
Burson v. Freeman,
504 U.S. 191 (1992) .............................................. 33
vii
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ........................................ 40, 54
Citizens United v. FEC,
558 U.S. 310 (2010) .................................. 22, 39, 54
City of Austin v. Reagan Nat'l Advert. of
Austin, LLC,
596 U.S. 61 (2022) ................................................ 32
Holder v. Humanitarian L. Project,
561 U.S. 1 (2010) .................... 26, 33, 34, 38, 49, 51
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) .............................................. 31
Lamont v. Postmaster Gen.,
381 U.S. 301 (1965) ........................................ 36, 37
McCullen v. Coakley,
573 U.S. 464 (2014) .................................. 32, 45–47
Meese v. Keene,
481 U.S. 465 (1987) ........................................ 36, 39
Minneapolis Star & Tribune Co. v.
Minn. Comm’r of Rev.,
460 U.S. 575 (1983) .............................................. 27
Moody v. NetChoice,
603 U.S. 707 (2024) .................. 4, 20–23, 26, 35–37
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ................................................ 51
viii
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) .............................................. 41
Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
585 U.S. 755 (2018) .................................. 32, 42, 43
News Am. Pub., Inc. v. FCC,
844 F.2d 800 (D.C. Cir. 1988) .............................. 54
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ...................... 25–27, 31, 32, 54
Reno v. ACLU,
521 U.S. 844 (1997) ............................ 30, 38, 39, 44
Rumsfeld v. Forum for Acad. &
Institutional Rts., Inc.,
547 U.S. 47 (2006) ................................................ 23
Sable Commc’ns of Cal., Inc. v. FCC,
492 U.S. 115 (1989) ........................................ 45, 46
Shaw v. Hunt,
517 U.S. 899 (1996) .............................................. 31
Simon & Schuster, Inc. v. Members of
N.Y. State Crime Victims Bd.,
502 U.S. 105 (1991) ........................................ 24–26
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) .............................................. 28
Texas v. Johnson,
491 U.S. 397 (1989) .............................................. 26
ix
Thompson v. W. States Med. Ctr.,
535 U.S. 357 (2002) .............................................. 45
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994) ........................................ 30, 47
Turner Broad. Sys., Inc. v. FCC,
520 U.S. 180 (1997) .............................................. 35
United States v. O’Brien,
391 U.S. 367 (1968) .............................................. 28
United States v. Playboy Ent. Grp.,
529 U.S. 803 (2000) .......... 25, 27, 30, 32, 44, 47, 54
Va. Pharmacy Bd. v. Va. Consumer Council,
425 U.S. 748 (1976) ........................................ 25, 37
Williams-Yulee v. Florida Bar,
575 U.S. 433 (2015) ............................ 33, 34, 42–44
Zauderer v. Off. of Disciplinary Couns.
of Sup. Ct. of Ohio,
471 U.S. 626 (1985) .............................................. 45
CONSTITUTIONAL AND STATUTORY AUTHORITIES
U.S. Const. amend. I ................................................. 40
28 U.S.C. § 1254 .......................................................... 1
Foreign Agents Registration Act,
22 U.S.C. §§ 611-621 ...................................... 39–40
Pub. L. No. 118-50, div. H, 138 Stat. 895 (2024)
Sec. 2(a) ............................................. 12, 14, 46, 52
x
Sec. 2(c) ................................................................ 13
Sec. 2(e) ......................................................... 14, 52
Sec. 2(g) .................. 3, 4, 12–14, 23, 24, 26, 29, 42,
......................... 43, 47, 48, 52, 53
Sec. 3 .............................................................. 13, 16
Pub. L. No. 118-50, div. I, 138 Stat. 895 (2024)
Sec. 2(a) ............................................................... 46
OTHER AUTHORITIES
H.R. 7521, 118th Cong. (2024) ................................ 12
T. Hunter, How Harris won at TikTok but
lost the election, Wash. Post (Nov. 8, 2024) ........... 8
R. Leppert & K. Matsa, More Americans
– Especially Young Adults – Are
Regularly Getting News On TikTok,
Pew Rsch. Ctr. (Sept. 17, 2024) ............................. 7
S. Maheshwari & M. Malone Kircher, The
Election Has Taken Over TikTok.
Here’s What It Looks Like., N.Y. Times ................. 8
V. Murthy, Surgeon General: Why I’m Calling
for a Warning Label on Social Media
Platforms, N.Y. Times (June 17, 2024) ............... 40
J. Reynolds, TikTok Is Helping Us Reach Millions
with the Gospel, Premier Christianity
(Aug. 22, 2022) ....................................................... 7
AJ Willingham, L. Asmelash, & S. Andrew,
The Biggest Ways TikTok Has Changed
American Culture, CNN (Apr. 2, 2023) ................. 7
OPINION BELOW
The D.C. Circuit’s opinion denying the petitions
for review (JA 1-92) has not yet been reported and is
available at 2024 WL 4996719.
JURISDICTION
The D.C. Circuit issued its judgment on December
6, 2024. Petitioners timely filed an application for
injunctive relief on December 16, 2024, which this
Court treated as a certiorari petition and granted on
December 18, 2024. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The appendix to this brief reproduces the First
Amendment, U.S. Const. amend. I, and the
Protecting Americans from Foreign Adversary
Controlled Applications Act, Pub. L. No. 118-50, div.
H, 138 Stat. 895, 955-60 (2024) (the Act).
2
INTRODUCTION
In an unprecedented action, Congress has ordered
the shutdown of one of the most significant speech
platforms in America. The Government concedes,
moreover, that it did so partly based on the fear that
the platform’s American publisher could be indirectly
pressured by China to alter the mix of “content” to
influence American minds. That justification is at
war with the First Amendment. Petitioners do not
contest Congress’s compelling interest in protecting
this Nation’s security, or the many weapons it has to
do so. But that arsenal simply does not include
suppressing the speech of Americans because other
Americans may be persuaded. At minimum, the
Government cannot so burden speech without even
considering less-restrictive alternatives, which it
manifestly failed to do here. If, for example, the
danger is secrecy, the tried-and-true solution is
sunlight, not suppression—as Congress concluded
decades ago when confronting the issue of Americans
serving as agents of a foreign power. History and
precedent teach that, even when national security is
at stake, speech bans must be Congress’s last resort.
For these and other reasons detailed below, the Act
is unconstitutional as applied to Petitioners.
TikTok is an online platform that is one of the
Nation’s most important venues for communication.
It is provided in the U.S. by Petitioner TikTok Inc.,
an American company that is indirectly owned by
Petitioner ByteDance Ltd., which is neither a
Chinese company nor owned by one. Starting on
January 19, 2025, the Act will ban Petitioners from
operating TikTok in this country. Shuttering the
platform will silence the speech of Petitioners and
3
the more than 170 million monthly American users
that communicate there about politics, arts,
commerce, and other matters of public concern—as
illustrated by the massive interest expressed during
the recent presidential election.
The D.C. Circuit upheld the Act based on alleged
“risks” that China could exercise control over the
American platform by pressuring Petitioners’ foreign
affiliates. JA 32-33. The Government concedes that
it has no evidence China has ever attempted to do so.
But it fears that, in the future, China “could” try to
manipulate the mix of content disseminated on
TikTok to influence American users or try to
misappropriate their data. JA 650. The D.C.
Circuit’s decision accepting this rationale flouts this
Court’s free-speech precedents.
The D.C. Circuit started correctly by assuming the
Act is subject to strict scrutiny. JA 31. The
Government conceded that TikTok Inc. is a bona fide
“domestic entity operating domestically” that is
“engaged in expressive activity” through “the
curation of content on [the platform].” JA 26-27.
Nor can the Government credibly dispute that the
Act imposes a content-based restriction on TikTok
Inc. The Act applies to “covered” applications and
websites that (like TikTok) make the expressive
choice to permit users to generate or share “text,
images, videos, … or similar content,” with an
exception for product, business, or travel reviews.
JA 16 & n.4 (quoting Sec. 2(g)(2)(A)(i)). The Act then
“singles out TikTok … for disfavored treatment,” JA
26, by banning Petitioners from operating TikTok
without giving them the benefit of procedural and
substantive standards afforded to other covered
4
speakers, Sec. 2(g)(3)(A)-(B). And lest there be any
doubt, the Government defends the Act partly on the
ground that it “limit[s] [China’s] ability to
manipulate content covertly on the TikTok platform”
to “interfere with our political discourse.” JA 29-30.
As the D.C. Circuit emphasized, this “justification”
for the Act itself “references the content of TikTok’s
speech.” JA 30.
Simply put, TikTok Inc. is a U.S. company
exercising editorial discretion over a U.S. speech
platform. The First Amendment fully protects it
from Congress’s attempt to ban its operation of the
platform based on its purported susceptibility to
foreign influence. Congress “may not interfere with
private actors’ speech” to “improve … the speech
market” by eliminating any risk of “skew[]” from
pressure by China. See Moody v. NetChoice, 603 U.S.
707, 741 (2024). Suppose, for example, Congress
forced an American newspaper owner to divest based
on fears that a foreign power had leverage to secretly
pressure him or his foreign staff to alter the content.
That would obviously trigger First Amendment
scrutiny. And First Amendment principles do not
change for online platforms. See id. at 733, 742-43.
The D.C. Circuit fundamentally erred by holding
that the Act satisfies strict scrutiny. This Court has
upheld speech restrictions under the Constitution’s
most demanding standard only in rare, narrow
circumstances that are far afield from silencing a
speech platform used by half the country. To be
sure, the D.C. Circuit portrayed its decision as “fact-
bound,” saying there is “persuasive evidence” of
“national security risks” in “the public record.” JA
32, 58, 65. But the specter of threats from China
5
cannot obscure the threat that the Act itself, and the
decision below upholding it, pose to all Americans.
The court ignored critical gaps in the record before
Congress during the Act’s hasty passage. Worse, the
court’s flawed legal rationales dilute heightened
scrutiny in multiple ways not limited to this context.
First, the D.C. Circuit held that Congress could
ban Petitioners’ operation of TikTok based on the
fear that China could, in the future, “covert[ly]”
manipulate content to influence Americans. JA 54.
But the Act is grossly overbroad for that interest. An
express disclosure is the time-tested, less-restrictive
alternative the First Amendment requires to address
a concern the public is being misled about the source
or nature of the speech they receive—including in
the foreign-affairs and national-security contexts.
Second, the D.C. Circuit held that Congress could
single out TikTok as presenting the “most pressing
concern” that China may misappropriate the online
data of Americans. JA 42. But the Act is grossly
underinclusive for that interest. It categorically
exempts any application or website that does not
contain user-generated or user-shared content or
that primarily addresses product, business, or travel
reviews—even though those content-based categories
have nothing to do with the scope of data collected or
its relative security.
Third, the D.C. Circuit failed to hold the
Government to its burden of proving that it
considered less-restrictive alternatives and found
them ineffective. Even apart from disclosures, for
example, the court identified no reason why the Act’s
“generally applicable provision[]” regulating
6
adversary-controlled applications was insufficient to
address the purported national-security risks posed
by TikTok. JA 58. Yet the court nevertheless upheld
Congress’s decision to “single[] out” TikTok and
automatically ban Petitioners from operating it,
treating them worse than all other speakers. Id.
Indeed, when (1) the singling out of TikTok for
uniquely unfavorable treatment is combined with (2)
the gross overbreadth as to covert Chinese content
manipulation and (3) the gross underinclusion as to
data protection, the clear inference is that Congress
passed the Act for an entirely different reason.
These factors collectively suggest Congress targeted
TikTok based on disagreement with the substance of
the content posted by TikTok’s users and TikTok
Inc.’s alleged editorial choices in disseminating that
content. The legislative record strongly suggests this
too, including in statements contained in the only
written report and made by numerous Members. Yet
Congress has no legitimate interest in disrupting the
U.S. operator of a U.S. speech platform to alter
editorial choices about the mix of content to
disseminate—whether or not Congress deems some
aspect of that content mix foreign propaganda.
This Court’s precedents make that clear, and it
should reaffirm the principle here. At the very least,
the Court should explain that, if Congress were truly
motivated by valid national-security interests, it
needed to do far better work either tailoring the Act’s
restrictions or justifying why the only viable remedy
was to prohibit Petitioners from operating TikTok.
In sum, the Court should hold that the Act’s TikTok-
specific provision is unconstitutional.
7
STATEMENT OF THE CASE
A. TikTok Is A Unique Speech Platform
Used By 170 Million Americans
TikTok is an online platform enabling users to
create, share, and view videos. JA 484. Users can
further communicate by commenting on videos,
“tagging” others to suggest they view a video, and
creating responsive videos. JA 485. Launched in
2017, TikTok has grown into one of the world’s most
widely used speech platforms, with more than 170
million monthly American users and more than 1
billion users worldwide. JA 486-87.
Americans use TikTok to communicate about all
manner of topics—from culture and sports, to politics
and law, to commerce and humor. For instance,
people of diverse faiths use TikTok to discuss their
beliefs with others.
1 Recovering alcoholics and
individuals with rare diseases form support groups.2
Many also use the platform to share videos about
products, businesses, and travel. See JA 490-91.
Seventeen percent of U.S. adults regularly get
news from TikTok—including 39 percent of adults
younger than 30.3 “[S]cores of politicians” spoke on
1 J. Reynolds, TikTok Is Helping Us Reach Millions with the
Gospel, Premier Christianity (Aug. 22, 2022),
https://www.premierchristianity.com/real-life/tiktok-is-helping-
us-reach-millions-with-the-gospel/13647.article.
2 AJ Willingham, L. Asmelash, & S. Andrew, The Biggest Ways
TikTok Has Changed American Culture, CNN (Apr. 2, 2023),
https://perma.cc/BSH3-5VYX.
3 R. Leppert & K. Matsa, More Americans – Especially Young
Adults – Are Regularly Getting News On TikTok, Pew Rsch. Ctr.
(Sept. 17, 2024), https://perma.cc/DZM7-UNWD.
8
TikTok leading up to November’s election, causing
traditional media to dub it “the TikTok election.”4
Indeed, the two major presidential candidates used
TikTok so effectively in their campaigns that their
videos were viewed over 6 billion times.5
Because TikTok is a globally integrated platform,
users in the U.S. can seamlessly access content
created around the world, and vice versa. JA 486. In
2023, American creators uploaded more than 5.5
billion videos, viewed more than 13 trillion times—
half by users outside the country. JA 487. American
users viewed foreign content more than 2.7 trillion
times, more than a quarter of their views. Id.
B. TikTok Inc. Is An American Company
That Provides The TikTok Platform In
This Country
TikTok is provided in the United States by TikTok
Inc.—an American company incorporated and
headquartered in California, with thousands of U.S.
employees. JA 483. TikTok Inc.’s ultimate parent is
ByteDance Ltd., a privately held holding company
incorporated in the Cayman Islands that owns
subsidiaries worldwide, including in China. Id.
ByteDance Ltd. ownership is held 58% by
institutional investors around the world; 21% by its
global workforce; and 21% by a founder who lives in
Singapore and is a Chinese national (Yiming Zhang).
4 S. Maheshwari & M. Malone Kircher, The Election Has Taken
Over TikTok. Here’s What It Looks Like., N.Y. Times (Oct. 21,
2024), https://perma.cc/5SCL-XNWC.
5 T. Hunter, How Harris won at TikTok but lost the election,
Wash. Post (Nov. 8, 2024), https://www.washingtonpost.com/
technology/2024/11/08/harris-tiktok-election-loss-trump/.
9
JA 484. No arm of the Chinese government has an
ownership stake—directly or indirectly—in TikTok
Inc. or ByteDance Ltd. See JA 483-84.
6
Users view content on TikTok primarily through
its “For You” feed, which presents each user with
videos curated specifically for them by TikTok’s
innovative technology, including a proprietary
recommendation engine. JA 489. Unlike other
platforms, TikTok does not host written posts and is
not as focused on users’ interactions with existing
friends. Id. Instead, TikTok facilitates users’
discovery and exploration of new content and
communities that interest them. Id.
To provide assurance that the Chinese government
can exercise no influence over the U.S. platform,
TikTok Inc.’s U.S. employees, subsidiaries, and
contractors control it. While the algorithm powering
the recommendation engine is developed by a global
engineering team, JA 499, U.S. entities perform the
critical steps of: reviewing and approving the
algorithm in the course of operationalizing it onto
the U.S. platform; customizing the recommendation
engine for use in this country; and developing and
overseeing content-moderation policies, JA 493, 499,
506.
The recommendation engine for the U.S. TikTok
platform is subject to the control of TikTok Inc.’s U.S.
subsidiary, TikTok U.S. Data Security Inc.
6 In this brief, “ByteDance Ltd.” refers to the Cayman holding
company. “ByteDance” refers to the ByteDance group,
including ByteDance Ltd.’s subsidiaries and affiliates. “TikTok
Inc.” refers to the U.S. corporation providing the U.S. TikTok
platform. “TikTok” refers to the online platform.
10
(TTUSDS), created to control access to protected U.S.
user data and monitor the platform’s security. JA
504-06, 778. The U.S. recommendation engine, along
with all the other source code for the U.S. platform,
is stored in the Oracle cloud—a collection of U.S.
servers operated by TikTok Inc.’s U.S. contractor,
Oracle Corporation. Id. TTUSDS has full access to
the source code and vets changes to the
recommendation engine. Id. The recommendation
engine selects from the content TikTok Inc. makes
available on the U.S. platform, which is moderated
under publicly available Community Guidelines
developed and implemented under its U.S.
employees’ direction. JA 493-94, 497-98.
C. Petitioners Have Worked To Address
The Government’s National-Security
Concerns
Protecting against platform misuse and securing
data are industry-wide issues. They are not unique
to TikTok, and the uncontested record shows that
“TikTok’s approach for dealing with these issues is in
line with—and in many respects markedly better
than—industry best practices.” JA 479. As the
Government’s declarants admitted, there is no
evidence that any foreign adversary has manipulated
the content Americans see on the platform or
misappropriated their private data. See JA 628 (“no
information that” China has “coerce[d] ByteDance or
TikTok to covertly manipulate the information” on
TikTok in the U.S.); JA 640 (China is “not reliant on
ByteDance and TikTok to date” to “engage in … theft
of sensitive data”); JA 650 (raising only “potential
risk” that China “could” abuse TikTok in the future).
11
Since 2019, Petitioners have worked cooperatively
with the U.S. Government to address its fears about
whether China could manipulate the mix of content
on the U.S. platform or access U.S. user data. From
January 2021 to August 2022, Petitioners and the
Committee on Foreign Investment in the United
States (CFIUS) engaged in an intensive, fact-based
process to develop a responsive National Security
Agreement (NSA). JA 449, 502-04. The result was
an approximately 90-page draft with detailed
annexes. JA 236-338, 426.
As explained by Christopher Simkins, a former
DOJ attorney who led the agency’s participation in
many CFIUS matters, the NSA would “effectively
mitigate[] national security risk associated with”
TikTok; it would do so through “reliance on multiple
trusted third parties,” “complex and thorough
technical mitigations,” and “unprecedented
oversight, monitoring, and very rigorous enforcement
mechanisms.” JA 449. All protected U.S. user data
(defined in the NSA) would be stored in the Oracle
cloud, a U.S.-government-approved partner. JA 241,
284. That data would be overseen by the newly
created TTUSDS, supervised by a special board
composed of members subject to U.S. Government
approval. JA 247-48. The NSA would guard against
foreign manipulation of TikTok’s content-moderation
practices, recommendation engine, and other source
code. JA 267-79. The NSA authorizes significant
monetary and other penalties for non-compliance.
JA 308.
During the negotiations, Petitioners began to
voluntarily implement many of the NSA’s measures
not requiring U.S. Government involvement. JA
12
504. That effort, called “Project Texas,” has cost
more than $2 billion. Id. The NSA was never
signed, however, because CFIUS stopped engaging in
September 2022, without explaining why. C.A.
Petrs. App. 417. Then in March 2023, CFIUS
representatives informed Petitioners that “senior
government officials” above them had demanded
divestment. Id. The Government never explained
why the NSA was inadequate or responded
meaningfully to Petitioners’ objections concerning
divestment’s feasibility. Id. at 418-25.
D. Congress Banned Petitioners From
Operating TikTok In America
On March 5, 2024, a bill to ban TikTok was
introduced in the House of Representatives. H.R.
7521, 118th Cong. (2024). Six weeks later, the House
packaged a nearly identical bill with must-pass
foreign aid. Congress quickly passed that omnibus
bill, and the President signed the Act into law on
April 24, 2024. See generally Pub. L. No. 118-50.
The Act prohibits mobile application stores and
internet hosting services from providing services for
distribution, maintenance, or updating of “foreign
adversary controlled applications.” Sec. 2(a)(1).
Section 2(g)(3) creates two tiers of “foreign adversary
controlled application[s].”
The first tier singles out one corporate group:
“ByteDance[] Ltd.,” “TikTok [Inc.],” and affiliates.
Sec. 2(g)(3)(A). The Act deems any application or
website they operate to be covered. Id.
The second tier creates standards and procedures
for the President to designate any other application
(or website). Sec. 2(g)(3)(B). An application must be
13
operated by a “covered company” that is “controlled
by a foreign adversary.” Sec. 2(g)(3)(B)(i). A
company is “controlled by a foreign adversary” if it is
domiciled or based in a listed adversary country, is at
least 20% owned by such persons, or is “subject to
the direction or control of” such persons. Sec. 2(g)(1).
A “covered company” operates an application that,
inter alia, allows users “to generate, share, and view
text, images, videos, real-time communications, or
similar content.” Sec. 2(g)(2)(A)(i). But there is an
exclusion for companies that “operate[] [an
application] whose primary purpose is to allow users
to post product reviews, business reviews, or travel
information and reviews.” Sec. 2(g)(2)(B).
If these standards are met, the President may
designate an application by determining that the
company operating it “present[s] a significant threat
to the national security of the United States.” Sec.
2(g)(3)(B)(ii). Before doing so, the President must
issue “a public notice” proposing the designation and
submit a “public report to Congress” 30 days in
advance, describing, inter alia, “the specific national
security concern involved.” Id. The President’s
determination is subject to judicial review. Sec. 3(a).
The Act exempts a “foreign adversary controlled
application” if the company operating it executes a
“qualified divestiture.” Sec. 2(c)(1). To qualify, the
President must determine that the divestiture (i)
results in the application “no longer being controlled
by a foreign adversary,” and (ii) “precludes the
establishment or maintenance of any operational
relationship” between the application’s U.S.
operations “and any formerly affiliated entities that
are controlled by a foreign adversary.” Sec. 2(g)(6).
14
For Petitioners’ applications, the Act takes effect
270 days from enactment—January 19, 2025. Sec.
2(a)(2)(A). The President may extend this deadline
for 90 days if he determines certain conditions are
met. Sec. 2(a)(3). Congress also included a
severability clause: if the Act’s TikTok-specific
provision is held invalid, its generally-applicable
provision could still be applied to TikTok. Sec. 2(e).
If the Act takes effect, its prohibitions will apply to
the U.S. TikTok platform so long as TikTok Inc. or
ByteDance Ltd. are directly or indirectly operating it.
Sec. 2(g)(3)(A). And pursuing a qualified divestiture
would preclude TikTok Inc. from maintaining any
operational relationship with ByteDance affiliates,
“including any cooperation with respect to the
operation of a content recommendation algorithm or
an agreement with respect to data sharing.” Sec.
2(g)(6)(B). The Government has never contested
record evidence that this is technologically and
commercially infeasible for TikTok Inc. within the
Act’s timeframe. See C.A. Gov’t. Br. 60-61; JA 373-
74, 410, 512-15; C.A. Petrs. App. 611-16.
Severing the operational relationship would
preclude “thousands of ByteDance employees” from
supporting the U.S. TikTok platform through
continued algorithm development and other
activities. JA 514-15. It would take “several years
for an entirely new set of engineers to gain sufficient
familiarity with the source code” to keep a U.S.-only
TikTok safe and functional, and they would still
“need access to custom-made ByteDance software
tools.” JA 515. In addition, because TikTok Inc.
would be unable to have the necessary data-sharing
agreement with ByteDance to show global content to
15
its American users and vice versa, the U.S. TikTok
platform would become a content “island”: American
users would be unable to access global content, and
American creators would be unable to reach global
audiences. JA 512-13. Without the “rich pool of
global content” that “translates to more users,” a
U.S.-only TikTok would be “significantly less
attractive to global advertisers,” rendering it unable
to compete with its global competitors. JA 513-14.
In short, if the Act’s prohibitions take effect, they
will “render the TikTok platform inoperable in the
United States.” JA 506-07.
7
E. Legislators Repeatedly Expressed
Disagreement With The Content On
TikTok
Unlike other instances where Congress legislated
in sensitive First Amendment areas, the hastily
passed Act includes no specific findings or
statements of purpose. The only written legislative
history is a House committee report. It focused on
the potential that “foreign adversary controlled
applications” “can be used” “to collect vast amounts
of data on Americans, conduct espionage campaigns,
and push misinformation, disinformation, and
propaganda on the American public.” JA 210-11.
7 Before the D.C. Circuit ruled, the Government never disputed
that, absent a qualified divestiture, the Act would require the
U.S. TikTok platform’s immediate shutdown on January 19,
2025. But in opposing an injunction pending further review, it
suggested that existing users might be able to use their current
app versions for some time before those become inoperable.
C.A. Gov’t Inj. Opp. 21 & n.2. Regardless, there is no serious
dispute that, absent relief from this Court (or the President),
the Act will imminently destroy TikTok as it now exists.
16
Meanwhile, numerous legislators expressed
varying (and misinformed) concerns about TikTok,
including grounds that discriminated on viewpoint
and content: e.g., “exposes children to harmful
content,” JA 348; “trends” like “the glorification of
Hamas terrorists,” JA 229; and “TikTok videos will
be promoting that Taiwan ought to be part of China,”
JA 357. At a hearing, a government official testified
that it was “striking to what degree th[e] narratives
[on TikTok] are resonating with young people in
America.” JA 798.
A lead sponsor explained that the Act attracted
support because TikTok “show[ed] dramatic
differences in content relative to other social media
platforms.” JA 353. And just after enactment, a
Senator stated that the reason for “such
overwhelming support for us to shut down
potentially TikTok” is that “[i]f you look at the
postings on TikTok and the number of mentions of
Palestinians relative to other social media sites, it’s
overwhelmingly so.” JA 366.
8
F. Proceedings Below
Petitioners filed suit in the D.C. Circuit, which has
exclusive original jurisdiction over challenges to the
Act. Sec. 3(b). Petitioners raised claims under the
First Amendment and other constitutional
provisions. JA 124-159.
The Government advanced two justifications for
the Act’s TikTok-specific provision: that China may
(1) “covertly manipulate the application’s
8 Allegations that TikTok amplified support for either side of
the Israeli-Palestinian conflict are unfounded. JA 472-75.
17
recommendation algorithm to shape the content” on
the platform, C.A. Gov’t Br. at 35, or (2) obtain
“access” to users’ “data,” id. at 27. The Government
submitted declarations from national-security
officials. It filed more than 15% of its merits brief
and nearly one-third of its declarations ex parte. See
id.; C.A. Gov’t App. The declarations’ unredacted
portions conceded that the Government’s concerns
were only about what China might do in the future,
not that China was already engaging in such conduct
through the U.S. TikTok platform. Supra at 10.
The D.C. Circuit denied the petition. All three
panel members agreed the Act triggers heightened
First Amendment scrutiny. JA 24-27, 66. Judges
Ginsburg and Rao assumed strict scrutiny applies,
JA 27-31, but held the Act survives it, JA 32-57.
Chief Judge Srinivasan concurred in the judgment,
concluding the Act is subject to, and satisfies,
intermediate scrutiny. JA 66. The court rejected
Petitioners’ other claims. JA 57-64. Although the
court granted the Government’s motion to file
materials ex parte, it emphasized that it upheld the
Act based only on the public record. JA 64-65 &
n.11.
18
SUMMARY OF ARGUMENT
I. The First Amendment requires applying strict
scrutiny to the Act’s TikTok-specific provision.
The Government conceded that TikTok Inc. is an
American company engaged in editorial curation for
the U.S. TikTok platform. Curating content for an
online platform is expressive activity, and using an
algorithm to recommend content is an editorial
choice. TikTok Inc. expressively associates with
ByteDance Ltd. in doing so, and the Government
disavowed any argument for disregarding TikTok
Inc.’s legally distinct identity as an American
speaker. The severe burden imposed on this
protected expression by banning Petitioners from
operating the U.S. platform is thus undeniable.
The Act inflicts that burden for content-based and
speaker-based reasons. The Act generally covers
applications based on their speech content, and then
singles out TikTok for worse treatment than all other
speakers. Moreover, the Government admits that
Congress did this based partly on fears that a foreign
adversary might manipulate the mix of content on
the TikTok platform to influence Americans’ views.
The Government’s scattershot attempts to evade
strict scrutiny are thus untenable.
II. The Act’s TikTok-specific provision fails any
form of heightened First Amendment scrutiny.
Under heightened scrutiny, a speech restriction
must be narrowly tailored to achieve an important
interest. The strict form of this standard is
demanding, and the Act does not come close to the
only three laws this Court has held satisfy it.
19
Indeed, the Act’s flaws are so severe it would not
even survive intermediate scrutiny.
To begin, the interests asserted by the
Government are facially defective. Justifying the Act
based on “content manipulation” concerns is either
(1) an impermissible attempt to prohibit Americans
from disseminating protected speech that may
further foreign interests, or (2) an overbroad attempt
to prevent “covert” foreign influence without
Congress even having considered whether the
traditional remedy of disclosure would be ineffective.
And justifying the Act based on “data protection”
concerns does not work because (1) the Government
cannot show that Congress would have passed the
Act for that non-content-based reason alone; and (2)
the Act is woefully underinderclusive as to data
security since its scope is based on content.
Regardless, the TikTok-specific provision is not
remotely tailored to either of those interests. In
addition to disclosures, there are a host of other less-
restrictive alternatives that Congress failed even to
consider. And the D.C. Circuit also did not hold the
Government to its burden of proof, forgiving
numerous holes in the evidentiary record.
At minimum, the Government failed to justify
treating TikTok worse than all other speakers.
There is no basis for subjecting it to more than the
Act’s generally-applicable process and standard,
which Congress itself deemed to adequately address
alleged adversary-controlled applications.
20
ARGUMENT
AS APPLIED TO PETITIONERS, THE ACT
VIOLATES THE FIRST AMENDMENT
Congress’s unprecedented attempt to single out
Petitioners and bar them from operating one of the
Nation’s most significant speech venues is
profoundly unconstitutional. The First Amendment
requires the strictest of scrutiny before allowing
Congress to impose such a severe and unique burden
on an American provider of a speech platform used
by millions of Americans, for avowedly content-based
reasons. Yet the Act flunks any form of heightened
scrutiny. The interests asserted by the Government
are facially deficient; and regardless, the statute is
not narrowly tailored to advancing them.
I. THE ACT’S TIKTOK-SPECIFIC PROVISION IS
SUBJECT TO STRICT SCRUTINY
A. The Act Severely Burdens The
Expression Of TikTok Inc., An
American Company Protected By The
First Amendment
1. “The Government concedes, as it must …, that
the curation of content on TikTok is a form of
speech.” JA 26.
“[E]xpressive activity includes
presenting a curated compilation of speech originally
created by others.” Moody v. NetChoice, LLC, 603
U.S. 707, 728 (2024). The “editorial function itself is
an aspect of speech.” Id. at 731. “Deciding on the
third-party speech that will be included in or
excluded from a compilation—and then organizing
and presenting the included items—is expressive
activity.” Id.
21
TikTok “combin[es] multifarious voices to create a
distinctive expressive offering.” Id. at 711 (cleaned
up). TikTok Inc. performs “content moderation,”
enforcing “publicly available … rules and standards.”
JA 493. It also performs “content recommendation,”
disseminating videos through its “For You” feed,
employing an algorithm to “match[] users with
content they are predicted to like.” JA 497-99. And
it “promot[es] and filter[s]” select content to foster
“diverse and high-quality content.” JA 499-500.
TikTok Inc. “thus unabashedly control[s] the
content that will appear to users.” NetChoice, 603
U.S. at 736. By using the algorithm, in particular,
TikTok Inc. makes “an editorial choice” reflecting a
“belief[] about which messages are appropriate.” Id.
at 738-39. If the Washington Post used an algorithm
to email its subscribers op-eds based exclusively on
predicted subscriber preferences, that would be an
editorial choice—a decision to target readers with
content they likely want, rather than what editors
think they should read. The First Amendment fully
protects such editorial choices.
2. “[T]he Government [also] does not dispute
facts suggesting at least some of the regulated
speech involves TikTok’s U.S. entities.” JA 27. In
fact, it all does. TikTok Inc. is a California
corporation providing the U.S. platform. JA 10.
Through U.S. employees, subsidiaries, and
contractors, it develops and oversees content-
moderation policies, reviews and approves the
algorithm in the course of operationalizing it onto
the U.S. platform, and customizes the
recommendation engine for use in America. Supra
at 9-10.
22
Accordingly, as the D.C. Circuit held, “TikTok[]
Inc. … is a domestic entity operating domestically”
with “First Amendment rights.” JA 27. Congress
cannot ignore those rights merely because TikTok
Inc. is a corporation. See Citizens United v. FEC, 558
U.S. 310, 342-43 (2010). And the Government
disavowed any argument that “the fundamental
principle of corporate separateness” should be
disregarded. JA 27; see C.A. Oral Arg. 1:30:18,
1:35:15. While its ultimate corporate parent is a
Cayman holding company, TikTok Inc. “remain[s]
legally distinct,” as the Government “do[es] not ask
this Court to pierce the corporate veil” or “invoke any
other relevant exception” that would permit treating
it as a foreign corporation—let alone part of a foreign
government. Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, Inc., 591 U.S. 430, 435-36 (2020) (AOSI).
TikTok Inc. therefore cannot be stripped of its
First Amendment rights even (wrongly) assuming
that China might be able to pressure ByteDance’s
Chinese affiliates to manipulate the algorithm
applied in this country. As the U.S. provider of a
U.S. speech platform, TikTok Inc. is entitled to make
an “expressive choice[]” about its preferred method
for “compiling and curating others’ speech.”
NetChoice, 603 U.S. 731-32. That includes the choice
to use a particular recommendation engine, even if
China could influence or control it. Congress cannot
deem that choice constitutionally “unprotected” by
deciding this “cost[]” “[out]weighs” the algorithm’s
“value.
” Brown v. Ent. Merchants Ass’n, 564 U.S.
786, 792 (2011) (EMA). The First Amendment leaves
that “judgment” to the speaker, not the State. Id.
23
Suppose, for example, Congress tried to force Jeff
Bezos to sell the Washington Post based on fears that
foreign governments might use their power over his
foreign business interests to pressure him to alter
the newspaper’s content. That law would obviously
burden his First Amendment rights. The same is
true for TikTok Inc., a U.S. entity that likewise
possesses full First Amendment protections.
NetChoice, 603 U.S. at 733 (“basic principles” of First
Amendment “do not vary” for online-platform
operators). In deciding the recommendation engine
is the best curation method for its platform, TikTok
Inc. is an American company making its “own
editorial choice[] about the mix of speech it wants to
convey.” Id. at 734 (emphasis added).
3. Given the Government’s concessions that
TikTok Inc. engages in protected expression, it
cannot credibly dispute that the Act severely
burdens that expression. The Act categorically
deems TikTok a prohibited “foreign adversary
controlled application” as long as it is operated,
directly or indirectly, by “ByteDance[] Ltd.” or
“TikTok [Inc.].” Sec. 2(g)(3)(A). Thus, the Act bans
TikTok Inc. (1) from engaging itself in the
“expressive activity” of “presenting a curated
compilation of speech” on the U.S. platform,
NetChoice, 603 U.S. at 728, and also (2) from
“associat[ing] for th[at] purpose” with ByteDance
Ltd., Rumsfeld v. Forum for Acad. & Institutional
Rts., Inc., 547 U.S. 47, 68 (2006) (emphasis added);
see AOSI, 591 U.S. at 437 (noting that American
speakers “are free to choose whether to affiliate with
foreign organizations”).
24
Importantly, the expressive harm to TikTok Inc.
would not be eliminated even if ByteDance Ltd. could
effectuate a qualified divestiture. That would
“preclude[] the … maintenance” of “any operational
relationship” between TikTok Inc. and ByteDance
affiliates, “including any cooperation … [on] a
content recommendation algorithm.” Sec. 2(g)(6)(B).
Severing that relationship would imperil the
algorithm’s future functionality, a vital aspect of
TikTok Inc.’s expression. Supra at 14. And it would
prevent TikTok Inc. from collaborating with its
preferred expressive partners. This is akin to forcing
Jeff Bezos to fire his non-U.S. publisher, or
prohibiting the Washington Post from licensing
ByteDance’s services when recommending articles to
subscribers. Indeed, it is worse. Cutting the U.S.
platform off from ByteDance would fundamentally
alter the content TikTok Inc. offers. Instead of an
integrated platform that enables receiving and
sharing content internationally, U.S. TikTok would
become an uncompetitive American “island” isolated
from the platform’s non-U.S. users and global
content. Supra at 14-15.
This Court has recognized cognizable burdens on
speech based on expressive harms far less severe. In
Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105 (1991), for instance,
the Court found a law “impos[ed] a financial burden
on speakers” by requiring that proceeds from certain
books be temporarily placed in escrow to satisfy
potential civil judgments against the authors. Id. at
109, 115-16. Forcing TikTok Inc.’s divestiture is an
even more “obvious” “tax” on expressive activity, id.
at 115—it is effectively the death penalty. See
25
United States v. Playboy Ent. Grp., 529 U.S. 803, 812
(2000) (“The distinction between laws burdening and
laws banning speech is but a matter of degree.”).
B. The Act’s Coverage Of Petitioners Is
Both Content-Based And Speaker-
Based, Triggering Strict Scrutiny
The Act’s burdening of TikTok Inc.’s protected
expression is subject to strict scrutiny, for several
reasons.
“[S]trict scrutiny applies” whenever a speech
restriction’s “justification” is “content based.” Reed v.
Town of Gilbert, 576 U.S. 155, 166 (2015). “The First
Amendment presumptively places this sort of
discrimination beyond the power of the government”
because it “raises the specter that the government
may effectively drive certain ideas or viewpoints
from the marketplace.” Simon & Schuster, 502 U.S.
at 116. This implements the fundamental principle
that “information is not in itself harmful.” Va.
Pharmacy Bd. v. Va. Consumer Council, 425 U.S.
748, 770 (1976).
“[R]igorous scrutiny” is required to
ensure the Government has “an adequate
justification” for content discrimination. Playboy,
529 U.S. at 812-813.
Here, as the D.C. Circuit emphasized, the Act
“cannot be justified without reference to the content
of the regulated speech,
” because one of the
Government’s justifications itself “reference[s] the
content of TikTok’s speech.” JA 29-30. The
Government defends the Act based on its fear that
“China may … covertly manipulate the application’s
recommendation algorithm to shape the content that
the application delivers to American audiences.”
26
C.A. Gov’t Br. 35 (emphasis added). This “interest”
plainly “is related to expression,” triggering strict
scrutiny. Texas v. Johnson, 491 U.S. 397, 410 (1989).
Indeed, this is the most “egregious form of content
discrimination,” as it “target[s] [the] viewpoint[]” of
speech supposedly furthering China’s interests.
Reed, 576 U.S. at 156.
Statutory text and structure reinforce that the
Act is content-based. The Act generally covers
applications that, like TikTok, permit users to
generate or share “text, images, videos, … or similar
content,” Sec. 2(g)(2)(A)(i)—i.e., “platforms [that]
make choices about what third-party speech to
display and how to display it,” NetChoice, 603 U.S. at
716. It next exempts applications focused on
particular types of content—those “whose primary
purpose is to allow users to post product reviews,
business reviews, or travel information and reviews.”
Sec. 2(g)(2)(B). And it then singles out TikTok for
uniquely harsh treatment. Sec. 2(g)(3)(A)-(B); supra
at 12-13.
Thus, while the Act restricts foreign-adversary
control, “the conduct triggering” that restriction
“consists of communicating a message.” Holder v.
Humanitarian L. Project, 561 U.S. 1, 28 (2010); see
Simon & Schuster, 502 U.S. at 116-18 (applying
strict scrutiny to content-based escrow requirement
for book-sale proceeds). Regardless of Congress’s
motive, the Act “directly and immediately” regulates
based on content. Boy Scouts of Am. v. Dale, 530
U.S. 640, 659 (2000).
“[S]ingl[ing] out TikTok … for disfavored
treatment,” JA 26, makes matters worse. “[S]peech
27
restrictions based on the identity of the speaker” are
subject to strict scrutiny partly because they are
“often simply a means to control content,” Reed, 576
U.S. at 170—as the Government concedes here. This
“contradict[s] basic First Amendment principles.”
Playboy, 529 U.S. at 812. Laws “singl[ing] out”
particular speakers “present[] such a potential for
abuse” that they are presumptively unconstitutional.
Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Rev., 460 U.S. 575, 585, 592 (1983). Thus, singling
out TikTok for worse treatment requires the most
searching First Amendment scrutiny.
C. Arguments For Lesser Scrutiny Are
Meritless
The Government and the panel below advanced a
muddled mix of alternative arguments why strict
scrutiny is (or might be) inapplicable. Despite the
many theories thrown against the wall, none sticks.
First, “[t]he Government suggest[ed] that because
TikTok is wholly owned by ByteDance, a foreign
company, it has no First Amendment rights.” JA 27.
The D.C. Circuit rightly held otherwise because
“TikTok[] Inc. … is a domestic entity” that
“operat[es] domestically” curating content for the
U.S. platform. Id. Having disavowed any argument
for disregarding corporate separateness, supra at 22,
the Government has no reason why TikTok Inc. loses
its First Amendment rights because it has a foreign
parent. The Government invoked AOSI, but that
decision implies the opposite, reaffirming “the First
Amendment rights of American organizations”
despite their “affiliat[ion]” with “legally separate”
“foreign organizations.” 591 U.S. at 439.
28
Second, the Government argued this case “does
not implicate the First Amendment” because it is
“akin to Arcara v. Cloud Books, Inc., 478 U.S. 697
(1986).” JA 25. The D.C. Circuit correctly
“reject[ed]” that “ambitious” argument too. Id.
Arcara denied a First Amendment claim brought by
a business shut down for running a brothel out of an
adult bookstore, reasoning that the public-health law
“was directed at unlawful conduct having nothing to
do with books or other expressive activity.” 478 U.S.
at 707. In obvious contrast to “[e]nforcement of a
generally applicable law unrelated to expressive
activity,” “the Act singles out TikTok, which engages
in expressive activity, for disfavored treatment,” JA
26, and does so because of that expressive activity.
Third, the Government’s invocation of
intermediate scrutiny under United States v.
O’Brien, 391 U.S. 367 (1968), likewise fails. O’Brien
applies only where expressive activity is regulated
for reasons “unrelated to the suppression of free
expression.” Id. at 377. Yet as the panel majority
observed, “the Government’s concern with content
manipulation” itself “reference[s] the content of
TikTok’s speech.” JA 30. It thus is “related” to
suppressing expression—namely, overriding TikTok
Inc.’s editorial choice that the recommendation
engine is the best content-dissemination method,
because of fear China may “manipulate” the
algorithm “to shape the content that American users
receive.” Id. The Act also imposes far “more than an
incidental burden”; “on its face and in its practical
operation,” the Act “imposes a burden based on the
content of speech and the identity of the speaker.”
Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011).
29
Fourth, the majority observed that the Act’s
“TikTok-specific provisions” address “control by a
foreign adversary” without expressly referencing
content. JA 28. That ignores the Act’s structure.
TikTok was plainly included within the Act only
because, like the applications covered by the
generally-applicable provision, it has user-generated
and user-shared content. Sec. 2(g)(2)(A). Again, it is
worse, not better, that the Act then singles out
TikTok for uniquely harsh treatment. Moreover, it is
undisputed that Congress passed the TikTok-specific
provision because of the content-and-viewpoint-based
fear that the user-generated content on the platform
might be deployed to manipulate Americans and
favor China. That is why a qualified divestiture
would require TikTok Inc. to sever its “operational
relationship” with ByteDance as to the “content
recommendation algorithm.” Sec. 2(g)(6)(B).
Fifth, the majority asserted that the option for
Petitioners to “divest” suggests the Act does “not
target speech based on its communicative content.”
JA 28. Again, however, divestiture would prohibit
TikTok Inc. from curating the platform using the
algorithm it develops and implements in expressive
association with ByteDance; and the Act severs this
relationship due to fear that this editorial choice may
result in manipulation of the mix of content
Americans view. The Act thus “directly and
immediately” burdens TikTok Inc.’s expression. Boy
Scouts, 530 U.S. at 659.
Sixth, the majority described TikTok as having
the “special characteristic” of being “designated by
the political branches as a foreign adversary
controlled application,
” noting that strict scrutiny “‘is
30
unwarranted when the differential treatment is
justified by some special characteristic of the
particular medium being regulated.
’” JA 29 (quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 660-61
(1994)). But Turner involved a “content-neutral”
regulation of the entire cable medium. 512 U.S. at
652. It does not suggest that, where Congress
engages in content-and-speaker-based regulation, the
Government can evade strict scrutiny by claiming
the speaker is “special.” The point of requiring such
regulations to “satisf[y] strict scrutiny” is to ensure
there is “adequate justification” for discriminatory
treatment. Playboy, 529 U.S. at 813. Saying TikTok
is “special” because Congress singled it out turns this
Court’s speaker-discrimination cases on their head.
Seventh, the majority posited that fear of
“covert[]” content manipulation could be “wholly
consonant with the First Amendment.” JA 30-31.
Again, that is question-begging: courts must first
apply strict scrutiny to determine whether this
content-based justification sustains the Act.
Finally, Chief Judge Srinivasan’s concurrence
applied intermediate scrutiny based on a
“longstanding regulatory history” of “restrictions on
foreign control … in the communications arena.” JA
70. But he primarily relied on “broadcast” media
regulations. Id. That is a “special” context because
of bandwidth “scarcity,” which this Court deemed to
justify lesser First Amendment protections than in
“the vast democratic forums of the Internet.
” Reno v.
ACLU, 521 U.S. 844, 868 (1997).
In this context, history and tradition show that
the constitutional commitment to free speech
31
protects Americans even when they intentionally
disseminate a foreign adversary’s propaganda. Infra
at 36-40. By banning Petitioners from engaging in
the protected expressive activity of operating TikTok,
based on asserted fears their affiliates merely might
someday be pressured by China, the Act pursued a
presumptively unconstitutional path. It must be
subjected to the strictest of judicial scrutiny.
II. THE ACT’S TIKTOK-SPECIFIC PROVISION
DOES NOT SATISFY STRICT (OR EVEN
INTERMEDIATE) SCRUTINY
A. Strict Scrutiny Is A Demanding,
Rarely Satisfied Standard
1. A law cannot “survive strict scrutiny” unless
the Government “prove[s]” that it (1) “furthers a
compelling interest” and (2) “is narrowly tailored to
achieve that interest.” Reed, 576 U.S. at 171. This
“is a demanding standard,” and “[i]t is rare” a law
satisfies it. EMA, 564 U.S. at 799.
To prove a “compelling interest,” the Government
must “specifically identify an actual problem in need
of solving.” Id. (cleaned up). “Because it bears the
risk of uncertainty …, ambiguous proof will not
suffice.” Id. at 799-800. Moreover, when a law “is
wildly underinclusive,” that “raises serious doubts
about whether the government is in fact pursuing
the interest it invokes, rather than disfavoring a
particular speaker or viewpoint.” Id. at 802.
Likewise, the Government may rely only on “the
legislature’s actual purpose,” Shaw v. Hunt, 517 U.S.
899, 908 n.4 (1996) (cleaned up), not justifications
“invented post hoc,” Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507, 543 n.8 (2022).
32
The Government can prove “narrow tailoring” only
if it establishes that “curtailment of free speech [is]
actually necessary.” EMA, 564 U.S. at 799. “If a less
restrictive alternative would serve the Government’s
purpose, the legislature must use [it].” Playboy, 529
U.S. at 813. “To do otherwise would be to restrict
speech without an adequate justification.” Id.
Indeed, where a law is patently “overinclusive,” it
suggests the speech is being targeted for a different,
illegitimate reason. See EMA, 564 U.S. at 804.9
2. Given the high bar, this Court almost always
invalidates speech restrictions under strict scrutiny.
See, e.g., Reed, 576 U.S. at 171; Playboy, 529 U.S. at
807; EMA, 564 U.S. at 799; Barr v. Am. Ass’n of Pol.
Consultants, Inc., 591 U.S. 610, 621 (2020); Arizona
Free Enter. Club’s Freedom Club PAC v. Bennett, 564
U.S. 721, 753 (2011). (The full list is far longer.)
9 Even “[i]ntermediate scrutiny”—which generally applies to
content-neutral speech restrictions—requires the law be
“narrowly tailored to serve a significant governmental interest.”
City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S.
61, 76 (2022). While intermediate scrutiny does not require
adoption of the “least restrictive” alternative, a law still cannot
“burden substantially more speech than is necessary to further
the government’s legitimate interests.” McCullen v. Coakley,
573 U.S. 464, 486 (2014). Thus, where “a variety of approaches
… appear capable of serving [the Government’s] interests”
through less-burdensome means, the law fails under either
intermediate or strict scrutiny. Id. at 494. Likewise, even
under intermediate scrutiny, “underinclusiveness raises serious
doubts about whether the government is in fact pursuing the
interest it invokes, rather than disfavoring a particular speaker
or viewpoint.” Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585
U.S. 755, 774 (2018) (NIFLA) (quoting EMA, 564 U.S. at 802).
33
By contrast, this Court has upheld a speech
restriction under strict scrutiny only three times:
Burson v. Freeman, 504 U.S. 191 (1992) (plurality
op.), Holder v. Humanitarian L. Project, 561 U.S. 1
(2010) (HLP), and Williams-Yulee v. Florida Bar, 575
U.S. 433 (2015). These exceptions prove the rule. In
each, the challenged laws banned limited, strictly
defined categories of speech, based on clear
incompatibility with compelling government
interests unrelated to expression.
In Burson, the law created a 100-foot “restricted
zone” around polling places in which no campaigning
was permitted. 504 U.S. at 208. As the plurality
explained, “the evolution of election reform …
demonstrate[d] the necessity of restricted areas …
around polling places” to prevent “bribery, violence,
or intimidation” towards voters—as reflected by a
“time-tested consensus” in “all 50 States.” Id. at 200-
06. Thus, the “minor geographic limitation” survived
strict scrutiny. Id. at 210.
In HLP, the law criminalized “knowingly
provid[ing] material support” to a “foreign terrorist
organization.” 561 U.S. at 8. The Court upheld the
law because Congress had not “sought to suppress
ideas or opinions,” but rather “prohibited ‘material
support,’ which most often does not take the form of
speech at all” and was “carefully drawn to cover only
a narrow category of speech” tied to terrorism. Id. at
26. Notably, Congress made “specific findings
regarding the serious threat” involved, “explicitly
reject[ing]” a less-restrictive alternative (to prohibit
support only of the organizations’ terrorist activities,
not their “legitimate activities”) because “any
34
contribution to such an organization facilitates”
terrorism. Id. at 29 (cleaned up).
In Williams-Yulee, the law “advance[d] the State’s
compelling interest in preserving public confidence in
the integrity of the judiciary,” by restricting only one
“narrow slice of speech”: personal donation
solicitations by judicial candidates. 575 U.S. at 444,
452. That rule “aim[ed] squarely at the conduct most
likely to undermine public confidence,” “applie[d]
evenhandedly to all judges and judicial candidates,”
and contained “zero exceptions.” Id. at 449. There
was no suggestion of “a pretextual motive,” and the
law permitted as much speech as possible while
addressing the problem. Id. at 452.
Shuttering one of the Nation’s most popular
speech platforms bears no resemblance to those three
exceptional laws. The Act is both quantitatively
broader (to put it mildly) and qualitatively different.
The Government does not claim there is anything
harmful about the actual content created and
received by TikTok’s 170 million American users, or
even about Petitioners’ current expressive curation.
Rather, the Government seeks to prophylactically
silence all that speech based on fear that China
could someday wield control over Petitioners’ foreign
affiliates to misuse the U.S. TikTok platform.
This massive, unprecedented restriction of
protected speech reinforces the importance of
rigorously applying strict scrutiny. The D.C. Circuit,
however, rendered the standard a shadow of its
normal self, deeming this case to be “much like” one
that applied arbitrary-and-capricious review to
uphold a non-speech-related regulation. JA 40. Real
35
strict scrutiny looks nothing like APA review.
Properly applying the constitutional standard, the
Act cannot satisfy either the compelling-interest or
narrow-tailoring prongs.
B. The Government’s Asserted Interests
Are Facially Deficient
The D.C. Circuit upheld the Act’s TikTok-specific
provision based on “two national security
justifications”: the “risk” of China (1) “covertly
manipulating content on TikTok”; or (2) “collect[ing]
data of and about persons in the United States.” JA
33. Even accepting, momentarily, the (incorrect)
factual premises, each interest is legally inadequate
given the Act’s scope.
1. The content-manipulation interest
asserted is facially impermissible
The Government and the D.C. Circuit conflated
two meanings of “content manipulation.” Insofar as
they mean an interest in preventing Americans from
potentially choosing to disseminate content at a
foreign government’s behest, that is illegitimate.
And insofar as they reframe that interest as limited
to protecting Americans from receiving content that a
foreign government may have covertly influenced,
that does not work here either.
a. Under any form of heightened scrutiny, a law
must advance interests “unrelated to the suppression
of free speech.” Turner Broad. Sys., Inc. v. FCC, 520
U.S. 180, 189 (1997). And as NetChoice squarely
held,
“correct[ing] the mix of speech” on “social-
media platforms” is “very much related to the
suppression of free expression.” 603 U.S. at 740.
Congress thus “cannot prohibit speech to improve or
36
better balance the speech market,” id. at 741, as the
Act concededly attempted.
TikTok Inc. has made the “editorial choice[]” to use
the recommendation engine to achieve “the mix of
speech it wants to convey.” Id. at 734; supra at 20-
24. Congress cannot override that choice because,
like the States in NetChoice, it worries the resulting
“amalgam” of content is “skewed” in “dangerous” or
“un-American” ways. 603 U.S. at 741.
The D.C. Circuit, however, suggested that
involvement of a “foreign government” alters the
analysis. JA 43. It reasoned that the Act eliminates
the “threat[]” of China “distort[ing] free speech on an
important medium of communication.” Id. This
rationale fundamentally misunderstands the speech
interests at stake.
TikTok Inc. is a U.S. speaker making the editorial
choice of how to curate its U.S. platform’s content—
even if its chosen method involves an algorithm that
might reflect foreign influence or control (it does not).
The Government cannot ban U.S. theaters from
displaying “political propaganda” films—even if a
foreign power completely controls their content. See
Meese v. Keene, 481 U.S. 465, 480 (1987). At the Cold
War’s height, the Government still could not ban
domestic agitators from disseminating “communist
political propaganda”—even if created by the Soviets.
See Lamont v. Postmaster Gen., 381 U.S. 301, 302-03,
306-07 (1965). The First Amendment vests the
“judgment” about how to “weigh” the algorithm’s
“value” and “costs” in TikTok Inc., not Congress.
EMA, 564 U.S. at 792. The “State may not interfere”
37
with how this “private actor[]” strikes that “balance.”
NetChoice, 603 U.S. at 741.
That is so even if TikTok Inc.’s editorial choice
assumes a “risk that [China] might shape the
content that American users receive” and “interfere
with our political discourse.” JA 30. Petitioners
vigorously dispute that premise. But even were it
true, if Americans find American-disseminated
foreign propaganda “influen[tial],” id., that is the
First Amendment in action. It “makes for us” the
“choice[] between the dangers of suppressing
information[] and the dangers of its misuse.” Va.
Pharmacy Bd., 425 U.S. at 770. Confronted with a
similar argument that high-spending individuals
were “distorting” elections, this Court declared that
“the concept that government may restrict the
speech of some elements of our society in order to
enhance the relative voice of others is wholly foreign
to the First Amendment….” Buckley v. Valeo, 424
U.S. 1, 48-49 (1976) (per curiam) (cited in NetChoice,
603 U.S. at 742). In sum, the “uninhibited, robust,
and wide-open debate and discussion” protected by
the First Amendment extends to Americans’ right to
share foreign “propaganda.” Lamont, 381 U.S. at
307 (cleaned up).
b. The D.C. Circuit also tried to reframe the
Government’s interest. Rather than “suppressing
propaganda and misinformation,” the court claimed,
“[t]he Government’s justification in fact concerns the
risk of [China] covertly manipulating content on the
platform.” JA 42. That reframing is triply flawed.
First, the Government may rely only on Congress’s
“actual purpose,” not “post hoc” justifications. Supra
38
at 31. Yet the Government has fallen far short of
proving that Congress’s genuine concern was the
“covert” nature of any content manipulation.
If Congress’s concern were that limited, it had an
easy way to prove it: Include statutory findings or a
statement of purpose. Congress previously did just
that when regulating speech for national-security
reasons, and this Court relied on those “specific
findings.” HLP, 561 U.S. at 29. Here, the Executive
Branch urged Congress to do the same—to “hav[e]
the[] hearings and then mak[e] the findings directly.”
JA 795. Congress declined to do so. Given that
history, “the absence of any detailed findings by the
Congress” is a red flag that Congress’s motives were
not what the D.C. Circuit assumed. See Reno, 521
U.S. at 879.
The legislative record strongly supports that
inference. The only committee report featured
concerns about “misinformation, disinformation, and
propaganda.” JA 211. It accused TikTok of ensuring
“specific videos” achieve certain numbers of views,
objected that TikTok could amplify “false
information,” and worried TikTok might “shape the
content … to suit the interests” of China. JA 217-18.
Members raised other content-and-viewpoint-based
objections. Supra at 15-16. None of that was
objecting to covert Chinese manipulation. Rather,
these were complaints about content posted by
TikTok users and (erroneous) assertions about
TikTok Inc.’s editorial dissemination choices.
Second, the “covertness” interest is insufficient on
this record to justify banning Petitioners from
operating TikTok. As this Court has repeatedly held,
39
“disclosure” is the “less restrictive alternative” to
remedy speech that is misleading in source or
nature. Citizens United, 558 U.S. at 369. The
Foreign Agents Registration Act (FARA), 22 U.S.C.
§§ 611-621, provides a powerful, on-point
illustration. Even when American citizens are actual
agents for foreign powers, Congress chose
registration and disclosure over speech restrictions.
Meese, 481 U.S. at 469-71. Faced with “increased
attempts by foreign agents at the systematic
manipulation of mass attitudes,” Congress “add[ed]
requirements to keep our Government and people
informed of the nature, source, and extent of political
propaganda distributed.” Id. at 487 (Blackmun, J.,
dissenting in part); accord id. at 480 n.15 (majority
op.). Under FARA, Americans retain their
constitutional right to serve as advocates for foreign
interests, provided they disclose that choice.
At minimum, the Government had the burden to
prove disclosure would be insufficient. Reno, 521
U.S. at 879. Yet it put forth no evidence—zero—that
Congress even considered disclosure. And the D.C.
Circuit’s nearly 60-page opinion offered one ipse dixit
sentence: “[C]overt manipulation of content is not a
type of harm that can be remedied by disclosure.” JA
54. That is manifestly wrong. The risk a listener
will be misinformed about the source or nature of
speech is exactly the harm disclosure remedies. The
court gave no explanation why it would be
inadequate, for example, to include a conspicuous
warning on the TikTok platform telling users what
the Government told the court: “[The Government
believes] there is a risk that [China] may coerce …
TikTok to covertly manipulate the information
40
received by … Americans.” JA 628. Congress has
often used disclosures to inform Americans about the
speech they receive, including from foreign agents.
See, e.g., 22 U.S.C. § 614(b) (requiring a “conspicuous
statement” saying “materials are distributed by the
agent on behalf of the foreign principal”). Indeed,
the Government has advocated for warnings on
social-media platforms in other contexts.
10
To be clear, Petitioners believe such a warning
would be unwarranted for various reasons.
Nonetheless, this much-less-restrictive alternative
forecloses the Government from justifying the far-
more-draconian remedy of banning Petitioners from
operating TikTok. See Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 730-31 (2014). Indeed,
Congress’s failure to even consider this approach is
fatal under any standard of scrutiny. Infra at 44-45.
That is especially true here because the fear is not
that China could “manipulate” the content by
altering it in a way that would render it
unprotected—say, by crafting “incitement to
imminent lawless action,” rather than “mere
advocacy” of ideas favoring China’s interests. See
Brandenburg v. Ohio, 395 U.S. 444, 449 (1969)
(overruling Whitney v. California, 274 U.S. 357
(1927)). Instead, the alleged concern, at best, is that
China could “manipulate” the content by secretly
influencing the mix of constitutionally protected,
user-created content the U.S. platform recommends.
10 V. Murthy, Surgeon General: Why I’m Calling for a Warning
Label on Social Media Platforms, N.Y. Times (June 17, 2024),
https://www.nytimes.com/2024/06/17/opinion/social-media-
health-warning.html.
41
Responding to that risk by banning Petitioners from
operating TikTok entirely, and shuttering the
platform for 170 million American creators and
users, is drastic over-kill. All the more so since much
of the content has nothing to do with politics or other
potential objects of China’s “influence campaigns.”
JA 36; supra at 7.
Third, and relatedly, that Congress ignored
disclosure and imposed a massively overbroad ban
further calls into question Congress’s true objective.
It suggests the objection was to the content on
TikTok, not the “covert” nature of any potential
influence by China. See EMA, 564 U.S. at 804.
Again, however, if Americans choose to continue
viewing TikTok with their eyes opened wide, the
First Amendment entrusts them with making that
choice, free from Congress’s censorship.
2. The data-protection interest
asserted is facially inadequate
The data-protection interest is tainted by the
content-manipulation interest. Regardless, it fails
on its own terms.
a. As explained, Congress acted partly based on a
content-based, anti-propaganda interest that is not
just inadequate but impermissible. Supra at 35-38,
41. Accordingly, even if Congress partly relied on a
data-protection interest, the Act cannot survive
absent proof Congress would have passed it “even in
the absence of” the improper motive. Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977).
Yet the Government never tried to prove Congress
would have passed the Act for data-protection
42
reasons alone. Nor did it argue the Act could be
sustained solely on this ground. JA 31 n.8, 77-78.
For good reason. The legislative record makes clear
that both the content-based and data-protection
interests were before Congress, and it contains no
indication that the Act would have passed without
the former. JA 211, 218. To the contrary, the Act
makes clear that content was Congress’s central
focus: it limits coverage to applications with
particular content, Sec. 2(g)(2), and does not accept
divestiture unless “cooperation” over “a content
recommendation algorithm” is precluded. Sec.
2(g)(6)(B). The Government thus cannot invoke the
data-protection interest.
b. The Act is also so wildly underinclusive as to
data protection that it cannot be sustained on that
basis. “[U]nderinclusivity raises a red flag” for two
reasons. Williams-Yulee, 575 U.S. at 449. It “raises
serious doubts about whether the government is in
fact pursuing the interest it invokes, rather than
disfavoring a particular speaker or viewpoint.”
EMA, 564 U.S. at 802. And it “can also reveal” the
law “does not actually advance a compelling
interest,” rendering it unnecessary to restrict speech.
Williams-Yulee, 575 U.S. at 449. Thus, while strict
scrutiny does not require “address[ing] all aspects of
a problem in one fell swoop,” it also does not permit
“fail[ing] to regulate vast swaths of conduct that
similarly [imperil] [the Government’s] asserted
interests.” Id. at 448-49; accord NIFLA, 585 U.S. at
774 (same under intermediate scrutiny).
The Act does just that, twice over. First, it
categorically exempts all adversary-controlled
applications and websites (other than Petitioners’)
43
that do not have user-generated or user-shared
content. Sec. 2(g)(2)(A). Second, it exempts
adversary-controlled applications and websites
focused on “product reviews, business reviews, or
travel information and reviews.” Sec. 2(g)(2)(B). By
its terms, the “review” exemption extends to all
applications and websites of an otherwise “covered
company” operating even a single review application
or website; but at minimum, it exempts the review
application or website itself. See id.
These exempted adversary-controlled applications
and websites are as capable as TikTok of collecting
Americans’ data. Nothing about an adversary’s
ability to collect data turns on whether the content is
user-generated or user-shared and does not
primarily include reviews. E-commerce platforms,
for example, lack such content but collect massive
amounts of sensitive user data. In fact, the record
confirms that “the type and amount of data that
TikTok collects from U.S. users” is “comparable” to
that collected by exempted e-commerce applications
with equivalent alleged China connections. See JA
455-56, 461-62, 752 & n.16 (cleaned up). Further, a
report by the “U.S.-China Economic and Security
Review Commission” warned of “Chinese e-commerce
platforms” growing “a dominant U.S. market
presence” while “struggl[ing] to protect user data.”
JA 339-40. The D.C. Circuit disregarded this
evidence when declaring that “TikTok does not
identify any company operating a comparable
platform in the United States with equivalent
connections to [China].” JA 42.
The D.C. Circuit invoked Williams-Yulee to defend
the Act’s underinclusivity, but that case is
44
inapposite. There, this Court found “no fatal
underinclusivity concerns” given three features: the
law (1) “aim[ed] squarely at the conduct most likely
to undermine” the State’s interest; (2) “applie[d]
evenhandedly to all judges and judicial candidates”;
and (3) was “not riddled with exceptions.” 575 U.S.
at 449. None of those is true here. Congress’s
adoption of content-based exceptions strongly
suggests that content rather than data is what
motivated it. At minimum, the Government cannot
justify why it needs to shutter TikTok to protect
American users’ data while leaving them exposed to
Chinese e-commerce sites and other exempted
applications and websites.
C. The Government Did Not Prove That
The Act Is Narrowly Tailored
In all events, the Government’s asserted interests
cannot satisfy the narrow tailoring required under
any form of heightened scrutiny. The Government
did not consider several less-restrictive alternatives.
And the D.C. Circuit failed to hold the Government
to its evidentiary burden.
1. The Government failed to consider
less-restrictive alternatives
When “a plausible, less restrictive alternative” to
“a content-based speech restriction” exists, the
Government bears “the obligation to prove that the
alternative will be ineffective.” Playboy, 529 U.S. at
816. And the Act’s “breadth” “imposes an especially
heavy burden on the Government to explain why a
less restrictive provision would not be as effective.”
Reno, 521 U.S. at 879.
45
Here, there is no evidence “that the Government
even considered … alternatives,” Thompson v. W.
States Med. Ctr., 535 U.S. 357, 373 (2002), much less
found them ineffective. Under either strict or
intermediate scrutiny, that is fatal. See id.;
McCullen, 573 U.S. at 494; Sable Commc’ns of Cal.,
Inc. v. FCC, 492 U.S. 115, 130 (1989). While the
burden of proof is on Congress, supra at 38, no
Branch has carried it (or tried to do so). There are
myriad less-restrictive alternatives that the
Government did not consider meaningfully or at all.
a. Disclosure. Most obviously, disclosure is the
traditional means of alerting Americans to
otherwise-covert foreign influence. Supra at 38-39.
It is also plainly less restrictive than banning the
speech of Petitioners and 170 million American
TikTok users: “disclosure requirements trench much
more narrowly” on First Amendment rights “than do
flat prohibitions on speech.” Zauderer v. Off. of
Disciplinary Couns. of Sup. Ct. of Ohio, 471 U.S. 626,
651 (1985). Whether or not the Government might
have found disclosure ineffective, there is “no hint” it
“even considered” this alternative. Thompson, 535
U.S. at 373 (emphasis added); supra at 39-40.
Nor is there evidence the Government considered
other transparency measures. For instance, the
European Union requires large online platforms to
disclose their content-moderation policies and
provide data for assessing whether they viewpoint-
discriminate. C.A. Petrs. App. 633, 637-39. The
First Amendment requires the Government to
“consider[] different methods that other jurisdictions
have found effective.” McCullen, 573 U.S. at 494. It
never did so.
46
b. Data Protection. As part of the same
legislation containing the Act, Congress barred “data
broker[s]” from “mak[ing] available personally
identifiable sensitive data of a United States
individual” to certain countries and entities. Pub. L.
No. 118-50, div. I, § 2(a), 138 Stat. 895, 960 (2024).
Congress could have extended this (or similar)
restrictions to all online platforms, rather than
subjecting TikTok alone to a ban. JA 459-60. Again,
however, nothing in the record shows that the
Government even considered this “readily available”
“less intrusive tool[].” McCullen, 573 U.S. at 466.
c. National Security Agreement. There also
are no findings or evidence proving that Congress
considered the comprehensive NSA and found it
inadequate. Supra at 11. The D.C. Circuit assumed
Congress was “familiar[]” with the NSA because
some Members were briefed on Project Texas. See JA
52-53. But the NSA went beyond Project Texas
through a “combination” of mutually reinforcing
measures, JA 449; see JA 440, 464-65, so the full
alternative was not considered.
The court instead deferred to “the Executive’s
judgment” the NSA was inadequate. JA 49-50. But
Congress banned TikTok, so Congress was required
to consider that robust alternative. See Sable, 492
U.S. at 129. Regardless, the Executive Branch’s
consideration of the NSA was hardly genuine. It
refused to explain, let alone prove, why it deemed the
NSA inadequate. Supra at 12. It “did not raise” key
objections during the NSA negotiations that it
asserted in litigation and that Petitioners could have
addressed. JA 773-75. This cannot satisfy the
Government’s burden to “show[] that it seriously
47
undertook to address the problem with less intrusive
tools readily available to it.” McCullen, 573 U.S. at
494 (emphasis added).
d. Generally-Applicable Provision. Congress
adopted a general process and standards it deemed
adequate to address alleged adversary-controlled
applications. That itself is a less-restrictive
alternative to singling out TikTok for uniquely harsh
treatment. Infra at Part II.D.
2. The D.C. Circuit failed to hold the
Government to its evidentiary
burden
The D.C. Circuit made a fundamental error
cutting across its entire analysis. Under strict
scrutiny, the “usual presumption of constitutionality
afforded congressional enactments is reversed.”
Playboy, 529 U.S. at 817. So when there are
“substantial factual disputes,” the Government must
“shoulder its full constitutional burden of proof.”
Ashcroft v. ACLU, 542 U.S. 656, 671 (2004); accord
Turner, 512 U.S. at 664-66 (plurality op.) (same for
intermediate scrutiny). Yet the court trivialized the
Government’s evidentiary burden: It accepted
conclusory assertions, minimized basic factual
errors, forgave analytical gaps, and ignored
Petitioners’ submissions. This was not any
recognizable form of heightened scrutiny.
a. Chinese Control. Strict scrutiny demands
“hard evidence,” not “anecdote and supposition.”
Playboy, 529 U.S. at 819, 822. Yet the D.C. Circuit
never even required the Government to prove the
Act’s core premise that Petitioners are, in fact,
“foreign adversary controlled.” Sec. 2(g)(3)(A).
48
The court let pass false assertions that ByteDance
Ltd. is a Chinese company or owned by one. See JA
212 (House report describing ByteDance Ltd. as a
holding company owned by “Beijing ByteDance
Technology,” a “Chinese internet technology
company headquartered in Beijing”); C.A. Gov’t Br. 1
(asserting that TikTok Inc. is “ultimately owned by
the Chinese company ByteDance”). The undisputed
record, however, establishes that neither Beijing
ByteDance Technology, nor any other Chinese
company, owns either ByteDance Ltd. or TikTok Inc.,
directly or indirectly. Supra at 8-9.
And while there are ByteDance affiliates located in
China, “many U.S. companies maintain software and
other engineering operations in China.” JA 462.
Congress did not make those facts trigger the
“controlled by a foreign adversary” definition, Sec.
2(g)(1), (g)(3)(B)—nor did it deem any other company
covered on that basis, Sec. 2(g)(3)(A). The court thus
had no basis for treating as established “fact[]” that
TikTok is “subject to the control of a foreign
adversary nation.” JA 24. In fact, the Government’s
admission (supra at 10) that there is no evidence
China has ever attempted to assert its purported
control over the U.S. platform is itself evidence
suggesting such control does not exist.
b. Content Manipulation. The Government
acknowledges it has “no information” that China was
or is using the U.S. TikTok platform to “covertly
manipulate the information received by …
Americans.” JA 628. The D.C. Circuit nevertheless
credited the Government’s “predict[ion]” that
Petitioners “would try to comply if” China were to
make future content-manipulation demands. JA 47.
49
Under strict scrutiny, a “predictive judgment” cannot
rest on “ambiguous proof.” EMA, 564 U.S. at 799-
800. The Government must adduce “persuasive
evidence.” HLP, 561 U.S. at 36.
The court, however, accepted the Government’s
prediction based on no evidence at all. It credited the
Government’s bare assertion that it is “aware” that
“ByteDance and TikTok Global have taken action in
response to [Chinese] demands to censor content
outside of China.
” JA 47. The public record contains
that single conclusory sentence; everything after is
redacted. JA 641-42. Aware of the serious problems
with untested secret evidence, C.A. Petrs. Ex Parte
Opp’n 9-25, the court upheld the Act based solely on
the “public record.” JA 65. The court therefore
based a critical finding on just the Government’s say-
so. “[C]oncerns of national security and foreign
relations do not warrant [this] abdication of the
judicial role.” HLP, 561 U.S. at 34.
The court also faulted Petitioners for not “squarely
den[ying]” this allegation. JA 47. But Petitioners
did deny as squarely as possible the Government’s
vague censorship allegations. JA 759-60. Insofar as
this one referred to government takedown requests,
reports in the record demonstrate that TikTok has
not taken down content in other countries at China’s
request. JA 761 n.57. There was no concession
excusing the Government’s lack of evidence.
c. Data Protection. The Government concedes
that China is “not reliant on ByteDance and TikTok
to date” to engage in “theft of sensitive data.” JA
640. The D.C. Circuit again identified no persuasive
evidentiary basis that this is likely to change.
50
The record shows that, like TikTok, many other
“U.S. technology companies … have Chinese-
headquartered subsidiaries” and “face the same
theoretical risk that Chinese government officials
may seek to compel disclosure of customer or user
data.” JA 461. Yet “it is unlikely that China would
seek to compel TikTok to turn over user data for
intelligence-gathering purposes,” since China has
“more effective and efficient means of obtaining
relevant information.” JA 460. It is especially
unlikely since the Government was wrong that
TikTok collects “users’ precise locations.” Compare
C.A. Gov’t Br. 1, with JA 502, 750, 778. Locations
can be identified only to roughly a 50-mile radius, JA
751—information the Government has never
suggested would be useful to China.
The court brushed all this aside as “quibbles” that
“miss[] the forest for the trees.” JA 38-39. But the
big picture is this: The Government has banned an
extraordinary amount of speech; demands deference
to unsubstantiated predictions a future risk will
materialize; and gets facts wrong when it bothers to
provide them. That the D.C. Circuit credulously
accepted this is irreconcilable with heightened
scrutiny of any form.
d. Less-Restrictive Alternatives. Petitioners
showed that the Government’s objections to the NSA
rested on basic factual errors—e.g., “a mistaken
notion about the volume of data flow,” and concerns
about Oracle’s oversight that “are not consistent with
the practical realities of Source Code review.” JA
722, 727. The D.C. Circuit, however, repeatedly
elided such issues by recasting them as “judgment”
calls. JA 32-33, 38-41, 47-51. It is one thing to defer
51
to the political branches’ “considered judgment” on
unusual questions like whether “support to a
designated foreign terrorist organization … bolsters
[its] terrorist activities.” HLP, 561 U.S. at 36. It is
another to defer on factual questions like volumes of
data flow in the opposing party’s operations, and
technical questions like the feasibility of a private
company’s source-code review. This does not satisfy
even deferential APA review, much less heightened
constitutional scrutiny. See Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (agency cannot “offer[] an
explanation … that runs counter to the evidence” or
“entirely fail[] to consider an important aspect of the
problem”).
D. At Minimum, Congress Failed To
Justify Subjecting TikTok To More
Than The Act’s General Provision
Applicable To All Other Speakers
Finally, even setting aside everything above, the
TikTok-specific provision fails heightened scrutiny
for an independent, simple reason. The Act’s general
provision regulating all other applications is a built-
in less-restrictive alternative. Yet Congress provided
no justification why TikTok alone must be subjected
to a harsher scheme. And this is further evidence
that Congress instead discriminated against TikTok
because it disliked the speech on the platform.
Under the Act’s general provision, every other
application can invoke procedures and standards to
oppose a ban: They can seek judicial review focused
on “a public report … describing the specific national
security concern,” and they can contest whether they
52
fall within the definition of a “covered company” that
is “controlled by a foreign adversary.” Sec. 2(g)(3)(B).
Congress necessarily found that approach adequate
to address any threat posed by alleged adversary-
controlled applications. Only TikTok is “singled out”
for the “differential treatment” of an automatic ban.
JA 58.
Nothing in the Act or legislative record suggests
that the generally-applicable provision could not
likewise address any threat posed by TikTok. To the
contrary, the Act recognizes the provision as
adequate. Its severability clause provides that the
general provision remains available even if the
TikTok-specific provision is invalidated. Sec. 2(e)(2).
The D.C. Circuit tried to justify this discrimination
by calling TikTok an “immediate threat.” JA 58.
But the Government did not treat TikTok that way.
It deliberated “[f]or years.” C.A. Gov’t Br. 1. The
current Administration commenced discussions with
Petitioners in 2021 but went silent for long stretches.
C.A. Petrs. App. 413-25. And Congress itself delayed
the Act’s effectiveness for 270 days, including
through a presidential election, with a possible 90
days more. Sec. 2(a)(2)(A), 2(a)(3).
By contrast, the generally-applicable process can
be completed with just 30 days’ notice to Congress,
Sec. 2(g)(3)(B)(ii)(II). A need for unusual haste is
thus not a plausible explanation for singling out
TikTok. In fact, a Justice Department official told
Congress that “the executive branch could go back
and build a record under the more general provision
against [Petitioners] and go back in to court and use
that record to achieve the same outcome.” JA 789.
53
The more evident explanation is that Congress
sought to obscure judicial review. Under the general
pathway, the Government would have needed to
prepare a public report describing the specific
national-security concern. If that report, like the
Act, had omitted all of the findings and evidence
required by heightened scrutiny, that likely would
have been harder for the D.C. Circuit to ignore.
Moreover, any “immediate threat” cannot explain
subjecting TikTok to different substantive standards.
Other applications do not qualify as “controlled by a
foreign adversary” unless they satisfy specific
criteria. Sec. 2(g)(1). Yet those criteria are not met
for TikTok. Adversary control can be established
through 20% ownership by a person “domiciled in”
China, Sec. 2(g)(1)(A)-(B), but ByteDance Ltd. is 21%
owned by a Chinese national domiciled in Singapore,
JA 484. Nowhere did the D.C. Circuit either find
that TikTok satisfies the general criteria for
adversary control or explain why those criteria are
sufficient to define control for all applications except
TikTok. It deemed TikTok adversary-controlled
simply because Congress said so, and it alone is
denied any standard, finding, administrative process,
or judicial review on the issue. Likewise, other
companies may be able to invoke the “review”-
application exclusion from the Act’s “covered
company” definition. Sec. 2(g)(2)(B). Only TikTok,
inexplicably, is denied any chance to do so.
Thus, compared to the TikTok-specific provision,
the Act’s generally-applicable provision is itself an
obvious less-restrictive alternative that Congress
denied to TikTok without explanation. This alone is
fatal under any form of heightened scrutiny. See
54
Playboy, 529 U.S. at 823-26; Hobby Lobby, 573 U.S.
at 730-31.
Finally, this also starkly illustrates the concern
that “speech restrictions based on the identity of the
speaker are all too often simply a means to control
content.” Reed, 576 U.S. at 170 (cleaned up). There
is a real risk that the TikTok-specific provision is an
“instrument[] to censor” a disfavored speaker,
Citizens United, 558 U.S. at 340, rather than address
national-security concerns implicated by numerous
entities besides TikTok. This is why “[l]aws designed
or intended to suppress or restrict the expression of
specific speakers contradict basic First Amendment
principles.” Playboy, 529 U.S. at 812; see News Am.
Pub., Inc. v. FCC, 844 F.2d 800, 804, 813-14 (D.C.
Cir. 1988) (law that targeted “a corporation
controlled by K. Rupert Murdoch” “with the precision
of a laser beam” offended the Constitution at the
“intersection” of First Amendment and Equal
Protection principles). Heightened scrutiny, in short,
is designed to smoke out whether the Government
had permissible reasons for its speaker-based
discrimination. On that score, the TikTok-specific
provision fails.
55
* * *
For the reasons explained, the Act cannot
withstand any meaningful scrutiny. That, however,
does not prevent Congress or the President from
protecting national security—including with respect
to China or even TikTok. If, for example, Congress
had clearly identified its interest as being about the
“covert” manipulation of the mix of content, and
expressly considered disclosures and other less-
restrictive alternatives but found them ineffective,
this Court would have faced the more-difficult
question of how much deference to afford those
factual findings. Here, by contrast, Congress did not
even consider obvious, less-burdensome means,
likely because it was pursuing broader, improper
ends. The First Amendment does not tolerate such
short-cuts, which imperil the free-speech rights not
just of Petitioners and their 170 million American
users, but the entire Nation.
56
CONCLUSION
The judgment below should be reversed.
December 27, 2024 Respectfully submitted,
Alexander A. Berengaut
David M. Zionts
Megan A. Crowley
COVINGTON & BURLING LLP
REPLY BRIEF FOR THE RESPONDENT
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
TABLE OF CONTENTS
Page
A. B. C. The Act does not trigger heightened First
Amendment scrutiny......................................................... 3
Even if petitioners had cognizable First Amend-
ment claims, the Act would warrant intermediate
scrutiny ............................................................................... 7
In any event, the Act is narrowly tailored to further
compelling national-security interests .......................... 11
1. The Act is narrowly tailored to protect
Americans’ sensitive data from the PRC ............... 11
2. The Act is narrowly tailored to prevent the
PRC from covertly manipulating TikTok .............. 16
3. Petitioners’ remaining arguments lack merit ........ 20
TABLE OF AUTHORITIES
Cases:
Agency for International Development v. Alliance
for Open Society International, Inc.,
591 U.S. 430 (2020)............................................................ 3, 8
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ............ 5, 6
Arkansas Writers’ Project, Inc. v. Ragland,
481 U.S. 221 (1987)................................................................ 6
Citizen Publishing Co. v. United States,
394 U.S. 131 (1969)................................................................ 5
City of Austin v. Reagan National Advertising of
Austin, LLC, 596 U.S. 61 (2022) ......................................... 8
Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640 (1981) ......................... 12
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ........................................................... 14, 23
Lamont v. Postmaster General, 381 U.S. 301 (1965) ........... 7
(I)
II
Cases—Continued: Page
Minneapolis Star v. Minnesota Commissioner of
Revenue, 460 U.S. 575 (1983) ............................................... 6
Moody v. NetChoice, LLC, 603 U.S. 707 (2024) ................... 4
Reed v. Town of Gilbert, 576 U.S. 155 (2015) ........................ 8
Roman Catholic Diocese of Brooklyn v. Cuomo,
592 U.S. 14 (2020) ............................................................... 23
Sable Communications of California, Inc. v. FCC,
492 U.S. 115 (1989)........................................................ 12, 21
United States v. O’Brien, 391 U.S. 367 (1968) .................. 7, 9
Whitney v. California, 274 U.S. 357 (1927) .......................... 7
Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015) ......... 14
Winter v. NRDC, Inc., 555 U.S. 7 (2008) ............................ 23
Constitution and statutes:
U.S. Const. Amend. I ............................. 2-8, 12, 15, 17, 23, 24
Protecting Americans from Foreign Adversary
Controlled Applications Act, Pub. L. No. 118-50,
Div. H, 138 Stat. 955:
§ 2(a)(1), 138 Stat. 955-956 ................................................ 3
§ 2(c)(1), 138 Stat. 956-957 ................................................ 3
§ 2(c)(1)(B), 138 Stat. 957 ................................................ 21
§ 2(g)(6)(B), 138 Stat. 959 ............................................... 13
Miscellaneous:
170 Cong. Rec.:
H1170 (daily ed. Mar. 13, 2024) ...................................... 13
S2968 (daily ed. Apr. 23, 2024) ....................................... 13
S2992 (daily ed. Apr. 23, 2024) ....................................... 13
In the Supreme Court of the United States
No. 24-656
TIKTOK INC. AND BYTEDANCE LTD., PETITIONERS
v.
MERRICK B. GARLAND, ATTORNEY GENERAL
No. 24-657
BRIAN FIREBAUGH, ET AL., PETITIONERS
v.
MERRICK B. GARLAND, ATTORNEY GENERAL
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
REPLY BRIEF FOR THE RESPONDENT
No one disputes that the People’s Republic of China
(PRC) seeks to undermine U.S. interests by amassing
sensitive data about Americans and engaging in covert
and malign influence operations. No one disputes that
the PRC pursues those goals through ostensibly private
companies subject to its control and by pre-positioning
assets in the United States to deploy at opportune mo-
ments. And in light of those realities, no one can seri-
ously dispute that the PRC’s control of TikTok through
ByteDance represents a grave threat to national secu-
rity: TikTok’s collection of reams of sensitive data
(1)
2
about 170 million Americans and their contacts makes
it a powerful tool for espionage, and TikTok’s role as a
key channel of communication makes it a potent weapon
for covert influence operations. So long as TikTok re-
mains subject to the PRC’s control, the PRC could use
those weapons against the United States at any time—
for example, at a pivotal moment during a crisis.
The Act is the culmination of a years-long effort by
Congress and the Executive Branch to address that
acknowledged threat. After years of negotiations, the
Executive Branch concluded that ByteDance’s pro-
posed mitigation measures were insufficient because
they would not eliminate the PRC’s access to Ameri-
cans’ data or its control over TikTok—and, more funda-
mentally, because the Executive Branch could neither
trust ByteDance to comply nor detect noncompliance
before it was too late. After extensive briefings, Con-
gress agreed and adopted a targeted solution requiring
ByteDance to effect a divestiture that frees TikTok
from the PRC’s control—the same solution identified by
the Executive Branch under two Presidents as neces-
sary to resolve the national-security risks.
That divestiture requirement is entirely consistent
with the First Amendment and with our Nation’s tradi-
tion of barring or restricting foreign control of commu-
nications channels and other critical infrastructure. In
arguing otherwise, petitioners portray the Act as an ef-
fort to suppress disfavored views. But nothing in the
Act would prevent a post-divestiture TikTok from pre-
senting exactly the same content in exactly the same
manner. The Act targets control by a foreign adver-
sary, not protected speech.
Petitioners object that the Act is not sufficiently tai-
lored because it singles out TikTok and because Con-
3
gress purportedly failed to consider less-restrictive al-
ternatives. But Congress permissibly concluded that
TikTok’s unique nature and scale make it a unique
threat. The years of executive and legislative process
that preceded the Act refute any suggestion that Con-
gress failed to consider alternatives. And petitioners
err in asserting that Congress was required to trust
ByteDance to comply with an incomplete and impossible-
to-enforce mitigation plan; to rely on ineffective disclo-
sures; or to defer action until the profound threat posed
by the PRC’s control of TikTok ripened into irreversible
national-security harms. The Act satisfies any level of
First Amendment scrutiny, and this Court should up-
hold it.
A. The Act Does Not Trigger Heightened First Amendment
Scrutiny
The Act does not warrant heightened First Amend-
ment scrutiny because it does not impose a burden on
any cognizable First Amendment rights of ByteDance,
its U.S. subsidiary, or TikTok’s users. Gov’t Br. 19-23.
Petitioners do not dispute that ByteDance lacks First
Amendment rights because it is a “foreign organiza-
tion[] operating abroad.
” Agency for International De-
velopment v. Alliance for Open Society International,
Inc., 591 U.S. 430, 436 (2020) (AOSI ). And petitioners’
arguments based on the asserted rights of the U.S. sub-
sidiary and TikTok’s users misunderstand the Act’s
scope and the relevant First Amendment principles.
“[T]he activity centrally addressed by the Act’s di-
vestment mandate is that of a foreign nation rather than
a domestic speaker.” J.A. 66. On its face, the Act reg-
ulates only foreign adversary control, not speech by
ByteDance’s U.S. subsidiary or TikTok’s users. Act
§ 2(a)(1), (c)(1), 138 Stat. 955-957. “[T]he Act is de-
4
signed to sever ByteDance from the platform but leave
untouched” expression by the U.S. subsidiary and Tik-
Tok’s users “on a post-divestment version of the app.”
J.A. 74. Nor does the Act otherwise target protected
speech. Congress’s data-protection goal has nothing to
do with expression at all. And Congress’s goal of pre-
venting covert manipulation by the PRC targets only
unprotected expression: A foreign sovereign has no
First Amendment right to covertly manipulate a U.S.
platform. Gov’t Br. 20-21; cf. Moody v. NetChoice, LLC,
603 U.S. 707, 747 (2024) (Barrett, J., concurring).
ByteDance asserts (Br. 20-22, 36-37) that its U.S.
subsidiary engages in expressive editorial activity. As
a factual matter, it is wrong to suggest that the subsidiary
made the specific “ ‘editorial choice’ to use [ByteDance’s]
recommendation engine.
” Id. at 36 (brackets and cita-
tion omitted). ByteDance, not the subsidiary, created
the algorithm and requires its use. See, e.g., J.A. 8-10;
J.A. 649 (¶¶ 76, 78); J.A. 672-673, 686 (¶¶ 12, 15, 75).
That does not ignore corporate separateness (ByteDance
Br. 22); it simply recognizes that unlike individuals such
as Jeff Bezos (id. at 23-24) or Anita Whitney (Firebaugh
Br. 38-39), the wholly owned corporate subsidiary oper-
ates the platform subject to ByteDance’s (and in turn
the PRC’s) control. More fundamentally, the Act does
not directly regulate the U.S. subsidiary’s expression.
“[T]he company could maintain the same editorial
policies”
—and could even choose to deploy the same al-
gorithm without being compelled to do so—
“on a post-
divestment version of the app.” J.A. 74.
Petitioners emphasize that divestiture would, as a
practical matter, result in indirect effects on the U.S.
subsidiary’s editorial expression and the speech sent or
received by TikTok’s users. If ByteDance refuses to di-
5
vest (because, for example, the PRC will not let it), then
TikTok will cease to be available in the United States.
Firebaugh Br. 20-21. If ByteDance does divest, its for-
mer subsidiary will not be able to associate with
ByteDance in running the platform (ByteDance Br. 24),
and U.S. users will no longer be able to post on a plat-
form controlled by ByteDance (Firebaugh Br. 21-22).
And although nothing in the Act would prohibit a post-
divestiture TikTok from independently choosing to use
exactly the same algorithm, the PRC has restricted the
export of that algorithm for use by an entity outside the
PRC’s control. ByteDance Br. 24; see J.A. 75.
We do not seek to minimize the practical significance
of those effects, but petitioners err in assuming they
trigger heightened First Amendment scrutiny. The
level of scrutiny depends not on the status of the expres-
sion in the abstract or the magnitude of a law’s practical
effects, but instead on whether the challenged law di-
rectly targets protected speech. A forced divestiture of
a social-media platform under the antitrust laws, for ex-
ample, would have effects similar to the Act: Such a di-
vestiture would preclude the post-divestiture platform
from collaborating with its former parent and prevent
users from posting on a platform controlled by the
parent—thereby likely altering the mix of speech pre-
sented. But such a divestiture requirement plainly
would not warrant heightened First Amendment scru-
tiny. See, e.g., Citizen Publishing Co. v. United States,
394 U.S. 131, 139 (1969) (challenge to newspaper divest-
iture had “no support from the First Amendment”).
So too here. Like a divestiture required by the anti-
trust laws, the Act’s effect on the subsidiary and TikTok
users is not materially different from the effect on the
bookstore and its customers in Arcara v. Cloud Books,
6
Inc., 478 U.S. 697 (1986). There, the closure of the store
under a public-health law unquestionably affected
speech as a practical matter by requiring the owners to
“move their bookselling business to another location,”
but the Court declined to apply heightened First Amend-
ment scrutiny because the law did not target protected
expression. Id. at 706.
Petitioners seek to distinguish Arcara and analogize
this case to Minneapolis Star v. Minnesota Commis-
sioner of Revenue, 460 U.S. 575 (1983), and Arkansas
Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987),
on the ground that here, “ ‘the Act singles out TikTok’ ”
“and does so because of [its] expressive activity.
”
ByteDance Br. 28 (citation omitted); see Firebaugh Br.
50. That is both wrong and misses the point. It is wrong
because the Act addresses a specific national-security
threat—foreign-adversary control of TikTok—that has
nothing to do with protected expression by the U.S. sub-
sidiary or individual TikTok users. And it misses the
point because addressing the national-security threat
posed by foreign-adversary control of a communications
platform that collects sensitive data about 170 million
Americans does not present the “danger of abuse” that
made the differential tax treatment of certain newspa-
pers and magazines troubling in those cases. Arkansas
Writers, 481 U.S. at 226. As the Court explained in
Minneapolis Star, “differential treatment” of media en-
tities does not warrant heightened scrutiny where, as
here, it is justified by “some special characteristic” of
the regulated entities. 460 U.S. at 585; see J.A. 78. In-
deed, Congress often singles out particular foreign-
controlled entities in analogous national-security legis-
lation. See American Free Enterprise Chamber of
Commerce Amicus Br. 7-15.
7
Finally, and for similar reasons, the Act is nothing
like the laws at issue in Lamont v. Postmaster General,
381 U.S. 301 (1965), Whitney v. California, 274 U.S. 357
(1927), or petitioners’ various hypothetical laws re-
stricting expressive association between U.S. and for-
eign speakers. See ByteDance Br. 23-24; Firebaugh Br.
21-22. Those laws directly targeted protected expres-
sive activity in the United States; the Act, in contrast,
targets only control by a foreign adversary country.
B. Even If Petitioners Had Cognizable First Amendment
Claims, The Act Would Warrant Intermediate Scrutiny
Even if the Act triggered heightened First Amend-
ment review, it would warrant only intermediate scru-
tiny because it is a content-neutral regulation that im-
poses at most an incidental burden on protected speech.
Gov’t Br. 23-28; see United States v. O’Brien, 391 U.S.
367, 375 (1968). Petitioners contend that the Act trig-
gers strict scrutiny because the government’s interest
in preventing covert manipulation is in their view
content-based; because the Act singles out particular
entities; because legislators purportedly disapproved of
the content or viewpoints reflected on TikTok; and be-
cause of the exceptions in the Act’s separate provision
allowing the President to designate additional covered
platforms. All of those arguments lack merit.
1. Petitioners first assert that “the Act ‘cannot be
justified without reference to the content of the regu-
lated speech.’ ” ByteDance Br. 25 (citation omitted).
Petitioners do not dispute that the data-collection justi-
fication has nothing to do with speech. But they main-
tain that the covert-manipulation justification “plainly
‘is related to expression’ ” because it “ ‘references the
content of TikTok’s speech.
’ ” Id. at 25-26 (brackets and
citations omitted); see id. at 28. That is doubly wrong.
8
First, the Act does not target speech “because of the
topic discussed or the idea or message expressed.” City
of Austin v. Reagan National Advertising of Austin,
LLC, 596 U.S. 61, 69 (2022) (citation omitted). It does
not, for example, seek to suppress pro-PRC speech,
anti-American speech, or any other specific topics or
points of view. And the Act does not even seek to sup-
press “[s]peech that furthers China’s interests” (Fire-
baugh Br. 25). Instead, it bars PRC control over Tik-
Tok in order to prevent covert manipulation of the plat-
form by a foreign adversary—regardless of the views
expressed in the manipulated content. J.A. 80-81; see
Gov’t Br. 26.
Second, even if preventing covert manipulation by
the PRC could somehow be regarded as a content-based
justification, it would not be based on the content of any
protected expression. Again, the Act seeks to prevent
the PRC from covertly coercing ByteDance and its U.S.
subsidiary to manipulate the TikTok platform. The
PRC and ByteDance obviously have no First Amend-
ment right to engage in such manipulation, and petition-
ers do not argue otherwise. See AOSI, 591 U.S. at 436.
And TikTok’s U.S. subsidiary likewise has no First
Amendment right to be coerced by a foreign govern-
ment into using a manipulated platform.
2. Relatedly, petitioners assert (e.g., ByteDance Br.
26-27) that the Act warrants strict scrutiny because it
targets particular entities. But speaker-based distinc-
tions trigger strict scrutiny only if “the legislature’s
speaker preference reflects a content preference.”
Reed v. Town of Gilbert, 576 U.S. 155, 170 (2015) (cita-
tion omitted). Here, the Act’s “speaker (non)preference
is not grounded in a content preference”; instead, it is
based on control by a foreign adversary. J.A. 81.
9
3. Petitioners next invoke (e.g., ByteDance Br. 15-
16; Firebaugh Br. 9) a handful of statements by individ-
ual legislators to argue the Act was motivated by disa-
greement with the views expressed on TikTok. But in
O’Brien, this Court squarely rejected a similar attempt
to subject a facially neutral statute to strict scrutiny on
the theory that individual legislators’ statements sug-
gested their votes were motivated by hostility towards
protected expression. 391 U.S. at 384.
Here, moreover, the legislative record refutes peti-
tioners’ attempt to impugn Congress’s motives. The
House Report, for example, focuses overwhelmingly on
the dangers posed by TikTok’s “data collection prac-
tices.” J.A. 212; see J.A. 211-220. And to the extent the
Report addressed content, it focused on the threat of
covert manipulation by the PRC, highlighting “the
PRC’s conduct of global foreign malign influence oper-
ations, including through platforms such as TikTok.”
J.A. 220. Similarly, Senator McConnell emphasized the
dangers of “PRC influence and control” over TikTok
and made clear that his concern was “about conduct, not
content.” J.A. 229. Senator Cantwell likewise empha-
sized that Congress sought “to prevent foreign adver-
saries from conducting espionage, surveillance, and ma-
lign operations harming vulnerable Americans.” J.A.
232.
Particularly when viewed in that context, the state-
ments petitioners cite—such as the observation that
“TikTok ‘showed dramatic differences in content rela-
tive to other social media platforms,’ ” ByteDance Br. 16
(brackets and citation omitted); Firebaugh Br. 9 (same)
—reflect concern about potential covert manipulation
by the PRC, not a desire to suppress the referenced
content.
10
4. Finally, petitioners rely (ByteDance Br. 29; Fire-
baugh Br. 24-26) on the provision of the Act authorizing
the President to designate additional covered applica-
tions in the future, arguing that the Act’s criteria and
exceptions discriminate based on content. But those
separate (and severable) provisions of the Act are not at
issue here. See J.A. 23. What matters for this case is
that, after extensive briefings, Congress identified the
PRC’s control over TikTok as a unique and uniquely
well-documented national-security threat, and did so for
reasons unrelated to the content of protected speech.
In any event, petitioners err in criticizing the
presidential-designation provision, which covers appli-
cations that enable sharing of user-generated content
while excluding those with the primary purpose of facil-
itating product, business, or travel reviews. Those cri-
teria simply describe social-media sites, which present
unique data-collection concerns. For example, although
e-commerce and travel-review sites may also collect
some user data, cf. ByteDance Br. 43, petitioners do not
suggest that they pose the same risks as a social-media
platform that occupies users for hours at a time and
uses that intensive engagement to collect “keystroke
patterns,” “activity across devices,” “browsing and
search history,” “location data,” “image and audio infor-
mation” such as “faceprints and voiceprints,” and data
about a user’s contacts, social network, and private mes-
sages. J.A. 38-39. Having focused specifically on the
acute threat posed by the PRC’s control of TikTok, Con-
gress covered other social-media sites as the class of ap-
plications most likely to present a similar threat in the
future. That choice does not render the Act’s presidential-
designation provision impermissibly content-based.
11
C. In Any Event, The Act Is Narrowly Tailored To Further
Compelling National-Security Interests
The Act easily satisfies intermediate scrutiny—and
would also satisfy strict scrutiny—because it is nar-
rowly tailored to further the government’s compelling
interests in protecting Americans’ data and preventing
the PRC from covertly manipulating TikTok. Gov’t Br.
28-49. Petitioners have little to say about the data-
protection interest, which suffices by itself to uphold the
Act. Petitioners also have no persuasive response to the
national-security harms arising from covert content
manipulation. And petitioners’ arguments ignore the
serious risks posed by the PRC’s control of TikTok and
would hamstring Congress’s ability to protect Ameri-
cans from obvious foreign threats.
1. The Act is narrowly tailored to protect Americans’
sensitive data from the PRC
The government has a compelling interest in pre-
venting the PRC from amassing enormous troves of
data on tens of millions of Americans. Gov’t Br. 29-33.
Petitioners barely address that interest. They do not
and could not deny that “the PRC has engaged in ‘ex-
tensive and years-long efforts to accumulate structured
datasets’ ” on Americans. J.A. 34. They do not and
could not deny that the PRC pursues those efforts
through ostensibly private companies such as
ByteDance, including by adopting laws requiring those
companies “to grant the PRC full access to their data.”
J.A. 35. And petitioners do not and could not deny that
the vast array of sensitive data that TikTok harvests
about 170 million Americans and their contacts would
be enormously valuable to the PRC’s malign operations
against the United States—especially when aggregated
with other information that the PRC has obtained, in-
12
cluding through cyberattacks on Americans. J.A. 38-39;
see Former National Security Officials Amicus Br. 4-10.
Instead, petitioners insist that the Court should ignore
the data-protection interest and that the Act is under-
inclusive. Both arguments lack merit.
a. Petitioners principally assert that the govern-
ment “cannot invoke the data-protection interest” be-
cause the “legislative record” does not show that “Con-
gress would have passed the Act for data-protection
reasons alone.” ByteDance Br. 41-42; see Firebaugh
Br. 47-48. That is wrong for three reasons.
First, unlike an administrative agency, Congress is
not required to assemble any particular “record” before
legislating. “Neither due process nor the First Amend-
ment requires legislation to be supported by committee
reports, floor debates, or even consideration, but only
by a vote.” Sable Communications of California, Inc.
v. FCC, 492 U.S. 115, 133 (1989) (Scalia, J., concurring).
And petitioners cite no precedent for employing the sort
of counterfactual analysis they urge in a First Amend-
ment challenge to an Act of Congress. Gov’t Br. 36.
Second, and in any event, the counterfactual inquiry
petitioners propose applies only when the challenged
action is based in part on an impermissible motive.
Gov’t Br. 36-37. Here, the interest in preventing covert
content manipulation by the PRC is at minimum per-
missible. See pp. 17-19, infra. Even if that interest
would not by itself suffice to sustain the Act, it poses
no obstacle to upholding the Act based on the data-
protection interest. See, e.g., Heffron v. International
Society for Krishna Consciousness, Inc., 452 U.S. 640,
649, 650 n.13 (1981) (upholding statute based on “the
principal justification asserted by the State” without
13
addressing whether the State’s other asserted interests
were “constitutionally sufficient”).
Third, this would be a particularly inappropriate
case for applying the novel counterfactual analysis pe-
titioners propose. The House Report focuses over-
whelmingly on data protection, see J.A. 211-220; the Act
passed by large bipartisan majorities, see 170 Cong.
Rec. H1170 (daily ed. Mar. 13, 2024) (352-65); 170 Cong.
Rec. S2992 (daily ed. Apr. 23, 2024) (79-18); and law-
makers who objected to the Act disputed only the
covert-manipulation interest, not the data-protection
one, e.g., 170 Cong. Rec. S2968 (Sen. Markey). There is
thus every reason to think that Congress would have
adopted the Act based on the data-protection interest
alone.
Petitioners assert (Firebaugh Br. 48) that the Act
cannot be sustained based on data protection because a
qualified divestiture must preclude any ongoing cooper-
ation with former foreign-adversary-controlled affili-
ates concerning not only “data sharing” but also “the
operation of a content recommendation algorithm.” Act
§ 2(g)(6)(B), 138 Stat. 959. But that provision simply
confirms that Congress had two national-security con-
cerns in mind and was addressing the shortcomings
with ByteDance’s proposed national security agree-
ment, see J.A. 214; it does not undermine the point that
the Act may be sustained on the data-protection ra-
tionale. Gov’t Br. 35-37. And at a minimum, the data-
protection interest would be sufficient to uphold the Act
aside from that (severable) provision, which petitioners
have not separately challenged.
b. Petitioners also argue that the Act is underinclu-
sive with respect to data protection because it covers
only TikTok and (under the presidential-designation
14
pathway) certain other social-media applications, even
though other types of applications also collect user
data. ByteDance Br. 42-44; Firebaugh Br. 48-50. But
even under strict scrutiny, “the First Amendment im-
poses no freestanding ‘underinclusiveness limitation.’ ”
Williams-Yulee v. Florida Bar, 575 U.S. 433, 439 (2015)
(citation omitted). Underinclusiveness is a problem
only if it raises “doubts about whether the government
is in fact pursuing the interest it invokes.” Id. at 448
(citation omitted). And the Act here raises no such
doubts. Gov’t Br. 32-33.
To the contrary, Congress considered evidence that
TikTok collects data on an unsurpassed scale and that
ByteDance has a history of abusing that data (by, for
example, tracking U.S. journalists). See, e.g., J.A. 37;
J.A. 216-219 (House Report); J.A. 232 (Sen. Cantwell);
J.A. 659-661 (¶¶ 20, 22, 27, 29, 32); J.A. 695-697 (¶ 95).
Petitioners make no showing that Congress had before
it evidence that foreign-controlled e-commerce or other
sites collect and abuse similar data on a similar scale.
Congress permissibly concluded that TikTok poses a
unique threat; that other social-media applications
might in the future pose similar threats; but that it
would be premature to regulate other types of applica-
tions. Nothing about those determinations provides
any reason to doubt that protecting Americans’ sensi-
tive data from the PRC is a bona fide and sufficient ba-
sis for the Act. Instead, it shows that Congress “dis-
played a careful balancing of interests” and was “con-
scious of its own responsibility to consider how its ac-
tions may implicate constitutional concerns.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 35-36 (2010).
c. The Act is narrowly tailored to address the data-
protection interest. It provides for divestiture to elimi-
15
nate the PRC’s ability to access TikTok data, situating
the Act within the “well-established practice of placing
restrictions on foreign ownership or control where it
could have national security implications.” J.A. 44; see
Gov’t Br. 33-35.
Petitioners assert (ByteDance Br. 46; Firebaugh Br.
51) that Congress could simply have prohibited sharing
data with the PRC. But it is naïve to suggest that Con-
gress could trust ByteDance to comply in good faith
with such a restriction. See J.A. 692-694 (¶¶ 86-87, 89-
91). ByteDance is subject to laws that allow the PRC to
demand “full access to [its] data” and prohibit ByteDance
from revealing such access. J.A. 35; J.A. 676 (¶ 24). And
the Chinese government has a documented history of
collecting data through hacking operations that violate
U.S. laws, J.A. 33-34; there is little reason to think the
PRC would be deterred by a prohibition on accessing
data held by a company subject to its control.
For similar reasons, petitioners err in invoking
(ByteDance Br. 46) ByteDance’s proposed national se-
curity agreement. That proposal would not have pre-
vented ByteDance (and thus the PRC) from accessing
Americans’ sensitive data. Gov’t Br. 33-34. More fun-
damentally, the First Amendment does not require the
government to rely on “a potential agreement with a
party that it d[oes] not trust”—particularly when that
party is subject to a foreign adversary’s control and the
government lacks “the resources or the capability to
catch violations.” J.A. 692 (¶ 86).
The government’s lack of trust in ByteDance is well-
founded. “Public reporting,” for example, revealed that
“ByteDance employees abused U.S. user data, even af-
ter the establishment” of some of the protections con-
templated in the proposal. J.A. 695 (¶ 95(a)). Similarly,
16
leaked “audio recordings” indicated that “ByteDance
retained considerable control and influence over” the
entity that purported to provide independent safe-
guards for U.S. users’ data. Ibid.; see J.A. 37; see also,
e.g., J.A. 232 (Sen. Warner) (“Those who suggest that
the United States can address the data security and for-
eign influence risk of TikTok through traditional miti-
gation measures have not been following TikTok’s long
track record of deceit and lack of transparency.”).
Finally, “[r]equiring TikTok to disclose the potential
data-collection risks to users” (Firebaugh Br. 51) is not
a viable alternative. The government has publicly high-
lighted TikTok’s data-security risk for years, yet usage
of the application—and corresponding data collection—
has only continued to grow. See J.A. 214-220. Petition-
ers provide no reason to think that the sort of general-
ized disclosure they contemplate would be any more ef-
fective. They also ignore that the United States has a
compelling interest in preventing the PRC from exploit-
ing TikTok’s user data even if individual users would
choose to disregard that risk. And the disclosure peti-
tioners posit would do nothing to address TikTok’s col-
lection of non-user data or the PRC’s ability to combine
TikTok data with other data, including information ob-
tained through data breaches and cyber espionage. J.A.
34-42.
2. The Act is narrowly tailored to prevent the PRC from
covertly manipulating TikTok
The Act is also narrowly tailored to serve the gov-
ernment’s compelling interest in preventing a foreign
adversary like the PRC from controlling a key commu-
nications channel in the United States, which the PRC
could use to conduct a covert influence operation at any
time. Gov’t Br. 37-40. Petitioners’ contrary arguments
17
mischaracterize the government’s interest and invoke
alternative measures that would leave TikTok open to
PRC manipulation.
a. Petitioners observe that the government does not
have a compelling interest in “correcting” the mix of
speech on TikTok. But as the court of appeals empha-
sized, the Act does not seek to “suppress content or re-
quire a certain mix of content”; instead, it targets “the
PRC’s ability to manipulate content covertly” in order
to harm the United States. J.A. 30. Such covert foreign
manipulation is not protected by the First Amendment,
and the national-security harms would arise from the
fact of such manipulation. Gov’t Br. 25-26; J.A. 79-81.
Petitioners assert that the government does not have
a compelling interest in “preventing Americans from
potentially choosing to disseminate content at a foreign
government’s behest.” ByteDance Br. 35. That again
mischaracterizes the relevant interest: The concern is
not that the U.S. subsidiary will independently choose
to amplify or suppress particular content; it is that the
PRC will do so by directing covert manipulation of the
algorithm, which the subsidiary is compelled to use.
The Act’s divestiture provision precisely targets that
concern by freeing the subsidiary from the PRC’s con-
trol while leaving it free to disseminate any content it
wishes.
b. Ultimately, ByteDance does not deny that the
government has a compelling interest in protecting
Americans from a communications platform “that a for-
eign government may have covertly influenced.” Byte-
Dance Br. 35. But the Firebaugh petitioners appear to
assert (Br. 29-47) that the government lacks “a legiti-
mate interest in countering” even “covert content ma-
nipulation by the PRC.” J.A. 43. As the court of appeals
18
explained, that argument is “profoundly mistaken.”
Ibid.
It is of course true that “[t]his country has no history
or tradition of banning Americans’ speech because of
concerns that foreign governments might benefit from
it or add their own voices to it.” Firebaugh Br. 33. But
the Act does no such thing. Unlike the real and hypo-
thetical laws on which petitioners rely (id. at 34-37), the
Act neither seeks to suppress any American’s speech
nor to prevent any American from receiving speech
from abroad—including PRC propaganda. Instead, it
simply seeks to prevent the PRC from controlling a
platform that holds itself out as “today’s quintessential
marketplace of ideas” (id. at 3) and using it as a covert
vector for the PRC’s efforts to undermine the United
States. By preventing a foreign adversary government
from secretly manipulating a U.S. communications plat-
form used by 170 million Americans,
“the Act actually
vindicates the values that undergird the First Amend-
ment.” J.A. 43.
c. Petitioners’ assertion (ByteDance Br. 38) that
Congress was not genuinely concerned about “the ‘cov-
ert’ nature of any content manipulation” strains credu-
lity. The record reflects Congress’s concern that
although TikTok purports to be independent, it “can be
used by [the PRC]” to “push misinformation, disinfor-
mation, and propaganda”—activities that, by definition,
are done covertly. J.A. 211. The House Report, for ex-
ample, recounts concerns about “clandestine[]” manip-
ulation, J.A. 220—including the FBI Director’s warning
that the PRC could use TikTok “for influence opera-
tions,
” J.A. 217 (citations omitted); see, e.g., J.A. 229
(Sen. McConnell) (rejecting TikTok’s “claim that what
[TikTok] shows young Americans is what they want to
19
see, not what the PRC wants”); J.A. 232 (Sen. Warner)
(“[TikTok] could be covertly manipulated to serve the
goals of an authoritarian regime.”).
d. Just as the Act is narrowly tailored to protect
Americans’ data, it is also narrowly tailored to prevent
covert manipulation by the PRC. Again, the Act di-
rectly targets the relevant threat—foreign-adversary
control—and only that threat. Gov’t Br. 40-41. Again,
petitioners offer disclosure and ByteDance’s proposed
“national security agreement” as less-restrictive alter-
natives. ByteDance Br. 45-47; Firebaugh Br. 41-42.
And again, neither alternative would adequately ad-
dress the government’s compelling national-security in-
terest.
Petitioners assert that Congress should have man-
dated a “conspicuous warning on the TikTok platform”
stating that “ ‘The Government believes there is a risk
that China may coerce TikTok to covertly manipulate
the information received by Americans.’ ” ByteDance
Br. 39-40 (brackets, citation, and ellipsis omitted); see
id. at 45. But such a generic, standing disclosure would
be patently ineffective because it would not reveal
whether any particular content on TikTok was appear-
ing (or not appearing) organically or because of the
PRC’s manipulation. “ The idea that the Government
can simply use speech of its own to counter the risk of
content manipulation by the PRC is likewise naïve.”
J.A. 54.
ByteDance’s proposed national security agreement
was also insufficient. Indeed, it did not even purport to
provide a mechanism to detect content manipulation.
Petitioners’ declarant described the purpose of the
source-code review as the detection of “malicious code,”
J.A. 434, not “to inspect how the recommendation algo-
20
rithm makes decisions,” J.A. 719. Any effort to identify
content manipulation in real time would also be infeasi-
ble; the source code changes 1000 times per day, and
petitioners themselves maintain that it would take ex-
pert engineers “several years” to “gain sufficient famil-
iarity with the source code,” ByteDance Br. 14 (citation
omitted). That concession belies their assertion that
third-party monitoring would be an effective check.
3. Petitioners’ remaining arguments lack merit
Petitioners’ remaining arguments improperly mini-
mize the compelling national-security interests at stake
and demand far more from Congress than this Court’s
precedents require.
a. Petitioners emphasize (e.g., ByteDance Br. 3) that
the government has not identified a documented in-
stance of the PRC’s accessing TikTok’s data on U.S. us-
ers or manipulating the U.S. platform. But such covert
activities are by their very nature difficult to document
and prove. Just as the “inherent features of the PRC,
ByteDance[,] and the TikTok platform would have
greatly inhibited the U.S. government’s ability to detect
violations” of the proposed national security agreement,
J.A. 686 (¶ 76), they would also make it difficult to detect
if covert intelligence operations are occurring within a
tightly integrated network of companies controlled by
the PRC.
More fundamentally, “Congress did not need to wait
for the risk” of data collection and covert manipulation
by the PRC “to become realized and the damage to be
done.” J.A. 85. The government has a compelling inter-
est in addressing serious national-security threats be-
fore they ripen into irreversible national-security harms.
A foreign adversary’s control over a potent tool of espi-
onage and manipulation plainly qualifies as such a
21
threat. And Congress’s interest in addressing that threat
is particularly compelling given the PRC’s “strategy of
pre-positioning assets for potential use against U.S. in-
terests at pivotal moments.” Ibid.; see Gov’t Br. 4, 29-
30.
Petitioners suggest (ByteDance Br. 52; Firebaugh
Br. 45-46) that the national-security threats are not suf-
ficiently “imminent” to justify the Act because Con-
gress delayed application of the statute’s restrictions
for 270 days (with a possible 90-day extension). But
Congress was entitled to balance the competing policy
goals of protecting national security and allowing time
for divestiture. And while ByteDance objects (e.g., Br.
14) that the Act’s divestiture period is too short, it does
not represent that it has taken any steps toward divest-
iture in the eight months since the Act’s adoption—or
for that matter in the four years since President
Trump’s 2020 orders made clear that divestiture could
be required if ByteDance failed to address the govern-
ment’s national-security concerns. Congress reasona-
bly expected that ByteDance could effectuate a divesti-
ture freeing TikTok from the PRC’s control—thereby
protecting national security while preserving access to
the platform in the United States. 3/7/24 House Comm.
on Energy and Commerce Tr. 72-73, 129-130, 171-173
(E&C Tr.) (C.A. Doc. 2073185). And that divestiture op-
tion will remain available after the Act takes effect. Act
§ 2(c)(1)(B), 138 Stat. 957.
b. Petitioners object that Congress failed to make
“statutory findings” (ByteDance Br. 38) documenting
its consideration of alternatives. But Congress is not
required to memorialize its reasons for enacting a stat-
ute. See Sable Communications, 492 U.S. at 133 (Scalia,
J., concurring). And petitioners’ objection is particularly
22
misplaced here, where Congress considered the threats
posed by TikTok for years, heard directly from Tik-
Tok’s Chief Executive Officer, received numerous clas-
sified and unclassified briefings about the Executive
Branch’s extended negotiations aimed at identifying a
less-restrictive alternative, and specifically considered
evidence of the inadequacy of various alternatives.
Gov’t Br. 6-9; see J.A. 213-214, 219, 711-712; E&C Tr.
10-11, 40-42, 49-50.
c. Finally, petitioners badly miss the mark in attack-
ing (ByteDance Br. 47-51) the court of appeals’ evalua-
tion of the record. For example, petitioners argue that
the court of appeals erred in accepting “assertions that
ByteDance Ltd. is a Chinese company or owned by
one.” Id. at 47-48 (citation omitted). But petitioners’
emphasis on ownership elides how the PRC can control
ByteDance. The PRC has a well-documented history of
using its laws and embedded Chinese Communist Party
committees to force companies operating in China—
including the relevant ByteDance affiliates—to carry
out the PRC’s directives and refrain from disclosing
those actions. See J.A. 36, 213, 657-658, 673-676. And
ByteDance itself has acknowledged that the PRC can
control its ability to export its “proprietary recommen-
dation engine.” ByteDance C.A. Br. 24.
Petitioners also complain (ByteDance Br. 49) that
the court of appeals relied on “the Government’s say-
so” in finding that ByteDance has censored content out-
side of China in response to PRC demands. But the
court also relied on ByteDance’s conspicuous failure to
deny that it has engaged in such PRC-directed conduct.
J.A. 47; see Gov’t Br. 37-38. And while petitioners as-
sert that “reports in the record demonstrate that Tik-
Tok has not taken down content in other countries at
23
China’s request,” ByteDance Br. 49, their cited source
is not a factual representation by ByteDance but in-
stead a political-science professor’s opinion that social-
media companies generally “comply with local laws.”
J.A. 760 (¶ 20).
Petitioners also cite the same professor’s view that
“it is unlikely that China would seek to compel TikTok
to turn over user data for intelligence-gathering pur-
poses.” ByteDance Br. 50 (quoting J.A. 460 (¶ 16)). But
in the “sensitive and weighty” context of “national secu-
rity and foreign affairs,” it is the “evaluation of the facts
by the Executive” and “Congress’s assessment” that
are “entitled to deference”—not the predictions of peti-
tioners’ preferred professor. Humanitarian Law Pro-
ject, 561 U.S. at 33-34.
d. In an amicus brief, President-elect Trump takes
no position on the First Amendment question on which
this Court granted certiorari but urges the Court (Br.
4) to “stay the statute’s effective date to allow his incom-
ing Administration to pursue a negotiated resolution.”
That requested relief is more properly characterized as
a temporary injunction and thus is appropriate only if
the plaintiff establishes, among other things, a likeli-
hood of success on the merits. See Roman Catholic Di-
ocese of Brooklyn v. Cuomo, 592 U.S. 14, 16 (2020) (per
curiam); Winter v. NRDC, Inc., 555 U.S. 7, 32 (2008).
Petitioners have not made that showing here—and the
President-elect does not argue otherwise.
* * * * *
Congress and the Executive Branch agree that the
PRC’s control of TikTok through ByteDance poses a
profound national-security threat. As the court of ap-
peals recognized, that concern is “well founded, not
speculative.” J.A. 42. And the Act narrowly targets
24
that concern by requiring divestiture to sever foreign-
adversary control, while allowing exactly the same
speech on a post-divestiture TikTok. The First Amend-
ment does not prohibit that critical step to protect our
Nation’s security.
Respectfully submitted.
ELIZABETH B. PRELOGAR
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