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Legal Principle at Issue

Does the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to TikTok, violate the First Amendment?

Action

In a per curiam opinion, the Supreme Court ruled that a federal law compelling TikTok’s parent company, ByteDance, to sell the social media platform or cease operations in the United States does not violate the First Amendment.

Facts/Syllabus

In April 2024, President Biden signed into law the Protecting Americans from Foreign Adversary Controlled Applications Act, which prohibits distributing or maintaining a “foreign adversary controlled application,” defined explicitly to include TikTok. According to the law, TikTok can avoid prohibition only if its Chinese parent company, ByteDance, divests ownership, which TikTok says is a legal and practical impossibility. Other online platforms with only indirect connections to foreign adversary nations also face potential bans under the Act, depending in part on the type of content they host, if the President determines they “present a significant threat” to national security. 

TikTok users and TikTok filed lawsuits challenging the Act’s constitutionality in the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit rejected the challenge and upheld the law on December 6, 2024, deferring to the government’s assessment of national security risks. The Supreme Court of the United States determined it would hear the case on an expedited basis. 

Joined by the Institute for Justice, Reason Foundation, Future of Free Speech, Woodhull Freedom Foundation, First Amendment Lawyers Association, Stop Child Predators, Pelican Institute for Public Policy, and CJ Pearson, ��ݮ��ƵAPP���� filed an amici curiae brief explaining how the Act presents an unprecedented threat to Americans’ First Amendment rights by singling out and effectively banning an entire platform for communication that half the country uses to share and consume ideas, news, advocacy, and creative content.

Importance of Case

The nationwide ban on TikTok is the first time in history our government has proposed — or a court approved — prohibiting an entire medium of communications. The law imposes a prior restraint, and restricts speech based on both its content and its viewpoint. As such, if not unconstitutional per se, it must be subject to the highest level of First Amendment scrutiny.

In our amicus brief, we argued the nationwide TikTok ban is subject to — and fails — strict scrutiny as a prior restraint and content-based speech regulation. In enacting the law, Congress failed to create a public record that explains or provides evidence why this severe encroachment on free speech is needed to address a real and serious problem. Statements from lawmakers reveal only illegitimate intent to suppress disfavored speech and nonspecific concerns about national security. Further, we argued that the D.C. Circuit misconstrued First Amendment fundamentals when it determined that censorship—not robust counterspeech—is necessary to protect American freedom.