Banuelos

On January 17, 2025, the United States Supreme Court released its final judgment concerning the consolidated cases TikTok Inc. v. Garland and Firebaugh v. Garland (2025), which were argued on January 10, 2025. In a per curiam decision (9-0), the Court affirmed the judgment of the United States Court of Appeals for the District of Columbia Circuit, which on December 6, 2024, stated that the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), 38 Stat. 955, did not violate the First Amendment, as it “served a significant governmental interest in protecting national security.” The legislation was deemed narrowly tailored to address legitimate concerns about foreign influence and data security risks posed by applications like TikTok with ties to adversary nations, such as China (TikTok Inc. v. Garland, 598 U.S. ___, 2025).

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Parties: The petitioners in this consolidated case are: (1) TikTok Inc. and ByteDance Ltd., a technology platform and its foreign parent company; and (2) Brian Firebaugh et. al., the individual TikTok content users and creators. The respondent in this consolidated case is Merrick B. Garland, the Attorney General of the United States, and representative of the U.S. government executive authority.

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Procedural Posture: Following the enactment of PAFACA in April 2024, TikTok and ByteDance filed suit in federal court, alleging the law violated the First Amendment and other constitutional protections. Individual content creators, led by Brian Firebaugh, filed a separate suit arguing the ban restricted their rights to free expression and livelihood. The District Court ruled in favor of the government, emphasizing national security concerns as a compelling interest. The U.S. Court of Appeals affirmed the decision, finding PAFCA constitutional. Ultimately, both cases were consolidated and granted certiorari by the United States Supreme Court, focusing on the interplay between free speech rights and national security concerns.

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Facts: The facts considered for this case were: (1) PAFACA was passed in response to concerns over data privacy and foreign influence tied to TikTok’s Chinese ownership (ByteDance); (2) the law mandated ByteDance to divest TikTok’s U.S. operations or face a ban within the United States; (3) TikTok claimed this action was unconstitutional, arguing that it unfairly targeted the company and its users without evidence of harm; (4) individual content creators like Firebaugh contended that the ban would eliminate their primary platform for creative expression, adversely affecting their livelihoods and freedom of speech; and (5) the government justified the legislation as necessary to prevent potential misuse of user data by adversarial foreign entities, particularly China.

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Question Presented: Whether the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), as applied to petitioners, violates the First Amendment of the United States Federal Constitution.

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Holding: The United States Supreme Court upheld the constitutionality of PAFACA, ruling that it did not violate the First Amendment or other constitutional protections. The Court determined that the law served a significant governmental interest in protecting national security and was narrowly tailored to address this interest.

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Reasoning: The Supreme Court of the United States considered: (1) a First Amendment analysis, United States v. O’Brien (1968), 392 U.S. 367; (2) the bill of attainder argument, Nixon v. Administrator of General Services (1977), 433 U.S. 425; (3) due process claims; and (4) policy of national security.

(1) The Court applied intermediate scrutiny, recognizing that while PAFACA restricted access to a specific platform, it was content-neutral and justified by a significant governmental interest–notably, safeguarding national security–finding the law was narrowly tailored to achieve this interest without unnecessarily infringing on free speech. The precedent here refers to United States v. O’Brien (1968) which established the standard for analyzing content-neutral restrictions.

(2) The Court rejected the claim that PAFACA was a bill of attainder, emphasizing that it did not impose punishment but was regulatory in nature, designed to mitigate security risks. the precedent here refers to Nixon v. Administrator of General Services (1977), which guided the Court in distinguishing between punitive and regulatory legislative actions. In doing so, the Court distinguished between this case and United States v. Lovett (1946), 328 U.S. 303, where legislation explicitly targeted specific individuals for punishment. Here, the Court concluded that PAFACA was a regulatory measure addressing national security concerns, not punitive legislation targeting TikTok or ByteDance.

(3) The Court found that TikTok and ByteDance were afforded sufficient procedural safeguards, including opportunities to challenge the government’s findings. The legislation was not arbitrary, but instead based on documented concerns over data misuse and foreign influence.

(4) The court acknowledged the balance between individual freedoms and the government’s duty to protect against evolving national security threats. The decision affirmed that laws addressing such threats must be narrowly tailored and evidence-based.

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Concurring Opinion (Justice Sotomayor): Justice Sotomayor’s concurrence agreed that PAFACA implicated the First Amendment but also supported the conclusion that it survived heightened scrutiny. She disagreed with the majority approach in Part II A, arguing that the Court should not “assume without deciding” that PAFACA affects the First Amendment. Alternatively, she maintained and established precedent left “no doubt” that it does, emphasizing: (1) TikTok engages in expressive activity by compiling and curating material, which is subject to heightened First Amendment scrutiny, see Moody v. NetChoice LLC., 603 U.S. 707 (2024), Arcara v. Cloud Books Inc., 478 U.S. 697 (1986), and Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) ; (2) PAFACA barred entities from distributing TikTok’s speech unless it went through a qualified divestiture, which imposed a burden on its expressive conduct, further restricting TikTok’s ability to collaborate with entities on its content recommendation algorithm; and (3) right to associate PAFACA affected content creators’ rights to associate with TikTok as their preferred publisher for speaking purposes, see Rumsfeld v. FAIR, 547 U.S. 47 (2006). Despite these points, Justice Sotomayor agreed that PAFACA withstood scrutiny because it served a compelling governmental interest (protecting national security) and was narrowly tailored to achieve that goal.

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Concurring Opinion (Justice Gorsuch): Justice Gorsuch concurred in the judgment, agreeing that PAFACA survived constitutional scrutiny, however, he based his concurrence on a narrower interpretation of TikTok’s First Amendment claims and a strong deference to Congress’s national security determinations. He emphasized: (1) while U.S. jurisprudence recognizes some First Amendment protections for U.S.-based corporations, those protections may not fully extend to foreign-owned entities operating in the United States, especially where national security is implicated; (2) Congress, with access to classified intelligence and expertise, is better equipped to assess the risks posed by foreign entities like TikTok, cautioning against courts second-guessing legislative determinations in this context; (3) PAFACA is a content-neutral law, targeting TikTok not because of the content on its platform but because of its ownership structure and potential ties to a foreign adversary, arguing this distinction placed PAFACA squarely within Congress’s regulatory authority; and (5) concern about setting a precedent that could extend constitutional protections too broadly to foreign-owned corporations, potentially undermining the government’s ability to safeguard national security.