SCOTUS Affirms TikTok Ban in TikTok, Inc. v. Garland
The Supreme Court has recently issued a landmark decision regarding the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act), which effectively mandates the divestiture of TikTok from its Chinese parent company, ByteDance Ltd., or face a ban in the United States. This ruling, delivered per curiam, has significant implications for social media platforms, national security, and First Amendment rights. This post will delve into the intricacies of the Court’s decision, exploring the majority’s rationale and the concurring opinions of Justices Sotomayor and Gorsuch.
TikTok Ban: SCOTUS' Decision Focuses on ‘Extensive’ Data Collection & Security Concerns
The Supreme Court's majority opinion upheld the Act, concluding that it does not violate the First Amendment rights of TikTok, its users, or content creators. The court’s analysis centered around the following key points:
First Amendment Scrutiny
The Court assumed, without explicitly deciding, that the Act's provisions, particularly the divestiture requirement, imposed a disproportionate burden on First Amendment activities, thus warranting scrutiny.
The court recognized that a ban on a social media platform with 170 million U.S. users would burden those users' expressive activity in a non-trivial way.
They acknowledged First Amendment interests related to content moderation, content generation, access to a medium for expression, association, and receipt of information. However, the majority hesitated to treat a regulation of corporate control as a direct regulation of expressive activity.
As the court stated: "We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny".
Content Neutrality
The Court determined that the Act’s prohibitions were facially content-neutral because they were based on the foreign adversary's control of the platform, and not on the content of speech.
The Court also found that the government's justification for the Act, which was to prevent China from collecting sensitive data from U.S. TikTok users, was content-neutral.
The Act’s distinction of TikTok was justified by the fact that it has special characteristics including a foreign adversary's ability to leverage its control over the platform to collect user data. The Court emphasized the narrowness of this holding, clarifying that a law targeting any other speaker would entail a distinct inquiry.
The Court stated that the prohibitions "do not target particular speech based upon its content...or regulate speech based on its function or purpose".
Intermediate Scrutiny
Because the law was deemed content-neutral, the Court applied intermediate scrutiny, which requires that the law further an important government interest unrelated to the suppression of free expression and not burden substantially more speech than necessary.
Government Interests
The Court found that the Act's prohibitions and divestiture requirements served an important government interest by preventing China from capturing the personal data of U.S. TikTok users.
The court agreed with the government’s concerns regarding the extent of data collected by the platform and its accessibility to the Chinese government.
The Court gave "substantial deference to the predictive judgments of Congress", and found that the government's determination that China might access user data was a reasonable inference based on evidence.
Tailoring
The Court concluded that the Act was sufficiently tailored to address the government's data collection interest. The Act imposes a conditional ban, not an outright one, that prevents China from accessing user data unless there is a qualified divestiture that severs China's control.
The Court stated that it would not displace the government's judgment regarding content-neutral regulations as long as its policy was grounded on reasonable factual findings.
The Court noted that "Rather than ban TikTok outright, the Act imposes a conditional ban".
Content Manipulation
While the government also argued that the Act was necessary to prevent a foreign adversary from having control over the recommendation algorithm, the Court did not decide whether this justification was content-neutral.
The Court stated that it would have passed the law solely based on the data collection justification, even if the content manipulation argument was content based.
Final Decision
The Court ultimately affirmed the D.C. Circuit's judgment, concluding that the Act did not violate the petitioners' First Amendment rights because it served an important government interest and was not substantially broader than necessary.
It is important to note that the majority opinion was issued per curiam, meaning it was delivered "by the court" and not attributed to a specific Justice.
Justice Sotomayor's Concurrence: A Stronger Stance on First Amendment and TikTok Implications
Justice Sotomayor concurred with the judgment, but she took a different approach regarding the First Amendment implications of the Act...
First Amendment Implication
Sotomayor stated that there was no reason to assume without deciding that the Act implicates the First Amendment, because, in her view, it clearly does.
She asserted that the Act imposes a disproportionate burden on expressive activity and is therefore subject to heightened First Amendment scrutiny.
She also noted that the Act prevents TikTok from collaborating with certain entities regarding its "content recommendation algorithm" even following a qualified divestiture and it also impacts content creator's "right to associate" with their preferred publisher for speaking.
She cited precedent establishing that laws which disproportionately burden expressive activities are subject to such scrutiny. She noted that TikTok engages in expressive activity by "compiling and curating" material on its platform.
Sotomayor argued: "I see no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does".
Agreement with the Outcome
Despite her differing view on the initial First Amendment question, Justice Sotomayor explicitly agreed with the rest of the majority's opinion and concluded that the Act is constitutional. She concurred in the judgment, meaning that she agreed with the final decision of the court, even though her reasoning differed on the initial question of whether the Act even implicates the First Amendment.
Justice Gorsuch's Concurrence: Content Neutrality & Government Overreach in Banning TikTok
Justice Gorsuch also concurred with the judgment but raised concerns distinct from both the majority and Justice Sotomayor...
Rejection of "Covert Content Manipulation"
Gorsuch explicitly rejected the government's argument that the law was justified by a need to prevent "covert manipulation of content" on TikTok, stating that "one man's 'covert content manipulation' is another's 'editorial discretion'". He argued that the First Amendment protects such choices.
Concerns about Classified Evidence
Gorsuch highlighted his concerns about the government's use of classified evidence, which was shielded from the petitioners. He stated that "the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue".
Reservations about "Content Neutrality"
Gorsuch expressed "serious reservations" about whether the law is truly "content neutral," and worried that litigation over the "tiers of scrutiny" can obscure the ultimate constitutional questions. This is in contrast to the majority's view that the Act was content neutral.
Compelling Interest in Preventing Data Harvesting
Despite his reservations, Gorsuch agreed that the law seeks to serve a compelling interest: preventing a foreign adversary from harvesting vast amounts of personal data about millions of Americans.
Appropriate Tailoring
Gorsuch found the law to be appropriately tailored, noting the government's years of negotiations and consideration of alternatives. He noted that alternative measures suggested by the petitioners such as “more speech” and data sharing restrictions were insufficient to deter the threat of espionage.
Focus on the Reality of the Threat
Gorsuch emphasized the reality of the threat posed by a foreign adversary's ability to spy on Americans.
As he stated "Speaking with and in favor of a foreign adversary is one thing. Allowing a foreign adversary to spy on Americans is another".
Key Differences in Justice's Opinions on The TikTok Ban
First Amendment Scrutiny
While the majority assumed without deciding that the Act implicates the First Amendment, Justice Sotomayor argued that it clearly does.
Content Neutrality
The majority found the Act to be content-neutral, while Justice Gorsuch expressed serious reservations about this conclusion.
Justification for the Act
The majority did not explicitly endorse or reject the "covert content manipulation" argument, whereas Gorsuch explicitly rejected it.
Implications of the TikTok Ruling
The Supreme Court's decision to uphold the TikTok ban underscores the ongoing tension between national security concerns and First Amendment rights in the digital age. While the Court ultimately sided with the government's interest in protecting user data, the concurring opinions of Justices Sotomayor and Gorsuch highlight the complexities and differing perspectives on the legal issues at stake. This ruling will likely have far-reaching implications for future cases involving social media platforms and national security. The court's decision was also narrowly focused, and it noted that “A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations.
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