Amicus Curiae Brief — TikTok Inc., et al., Petitioners v. Merrick B. Garland, Attorney General

No. 24-656

In The Supreme Court Of The

United States

TIKTOK, INC. and BYTEDANCE LTD.,

Petitioners,

v.

MERRICK B. GARLAND, in his official capacity as

Attorney General of the United States,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the District of

Columbia Circuit

BRIEF OF AMICUS CURIAE OF CHRIS

SANTOSPIRITO, MELISSA SANTOSPIRITO,

AND LAURA SANTOSPIRITO IN SUPPORT OF

PETITIONERS

CHRIS SANTOSPIRITO

HOLZ FAMILY LAW

1375 Jackson St., Ste 304

Fort Myers, FL 33901

239-332-3400

chris@flafamilylaw.com

December 27th, 2024

Counsel for Amici

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

I. TABLE OF AUTHORITIES ................................... ii

II. IDENTITY AND INTEREST OF AMICI ............ 1

III. INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

IV. ARGUMENT AND CITATIONS OF

AUTHORITY ............................................................... 3

I.

The Act Violates Santospirito’s First

Amendment Right To Free Speech .................. 3

V. CONCLUSION ...................................................... 7

i

TABLE OF AUTHORITIES

CASES

PAGE(S)

Alexander v. United States,

509 U.S. 544 (1993) ……………………………. 3

Ashcroft v. ACLU,

535 U.S. 564 (2002) ……………………………. 3

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) …………………………….. 4

Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60 (1983) …………………………….. 3

Cantwell v. Connecticut,

310 U.S. 296 (1940) ……………………………. 3

Carroll v. Princess Anne,

393 U.S. 175 (1968) ……………………………. 4

Cohen v. California,

403 U.S. 15 (1971) ……………………………... 6

Cruise-Gulyas v. Minard,

918 F.3d 494 (6th Cir. 2019) ……………….. 5-6

De Jonge v. Oregon,

299 U.S. 353 (1937) ……………………………. 6

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985) ……………………………. 4

Fed. Election Comm’n v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986) ……………………………. 5

Lamont v. Postmaster Gen.,

381 U.S. 301 (1965) ……………………………. 5

ii

Mahanoy Area Sch. Dist. v. B.L. by and through

Levy,

141 S. Ct. 2038 (2021) …………………………. 6

McCullen v. Coakley,

573 U.S. 464 (2014) ……………………………. 4

McDonald v. Smith,

472 U.S. 479 (1985) ……………………………. 3

Near v. Minnesota ex rel. Olson,

283 U.S. 697 ………………………………. 4, 6, 7

Neb. Press Ass’n v. Stuart,

427 U.S. 539 (1976) …………………………. 3, 7

N.Y. Times Co. v. United States,

403 U.S. 713 (1971) …………………………. 4, 6

Org. for a Better Austin v. Keefe,

402 U.S. 415 (1971) ……………………………. 4

Police Dept. of Chicago v. Mosley,

408 U.S. 92 (1972) ……………………………... 5

Reno v. Flores,

507 U.S. 292 (1995) ……………………………. 4

Sandul v. Larion,

119 F.3d 1250 (6th Cir. 1997) ………………... 6

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ……………………………. 4

TikTok Inc. v. Trump,

507 F. Supp. 3d 92 (D.D.C. 2020) ……………. 4

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) …………………………..... 5

iii

United States v. Cruikshank,

92 U.S. 542 (1876) ……………………………... 3

United States v. Playboy Entm't Grp.,

529 U.S. 803 (2000) ……………………………. 4

Virginia v. Black,

538 U.S. 343 (2003) ……………………………. 3

Walsh v. Brady,

927 F.2d 1229 (D.C. Cir. 1991) ……………..... 6

CONSTITUIONAL PROVISION

U.S. Const. amend. I …………………………………... 3

iv

IDENTITY AND INTEREST OF AMICI 1

Chris Santospirito, Melissa Santospirito, and

Laura Santospirito, (hereinafter referred to as

“Santospirito”) submit this brief in support of

Petitioner, TIKTOK, INC. and BYTEDANCE LTD.

Santospirito are citizens of the United States of

America that reside in Florida and California.

Santospirito are individual users of TikTok that

have been using TikTok on a daily basis since

January 2019. Santospirito indirectly represent the

interests of all individual users of TikTok from every

region of the country. Chris Santospirito is an

attorney licensed to practice law in the State of

Florida (since April 2018) and a member of the Bar

of this Court (since March 22, 2023).

Santospirito have a strong interest in this

case. The Foreign Adversary Controlled Applications

Act (the “Act”) effectively bans TikTok for all users

in the United States of America beginning on

January 19, 2025. The Act, passed by Congress,

expressly violates the First Amendment rights of

Santospirito.

Under the Act, TikTok will cease to exist,

under the guise of Congress’ claim that national

security is at risk. The First Amendment requires

this Court to use strict scrutiny to determine

1 Pursuant

to Supreme Court Rule 37.6, counsel for amici

certify that no party’s counsel authored this brief in whole or in

part; no party or party’s counsel contributed money that was

intended to fund the preparation or submission of the brief; and

no person other than amici, its members, or its counsel

contributed money intended to fund the preparation or

submission of the brief.

1

whether the Act violates the hundreds of millions of

active users of TikTok.

If allowed to stand, the Act will have a chilling

effect impact on Santospirito, no less all individual

users of TikTok. Santospirito will not be able to

view, record, upload, repost, send, or download

videos from TikTok. Additionally, Santospirito will

not be able to purchase items from small business

owners through TikTok shop. The only way to avoid

this excessive overreach by Congress is to strike the

Act down as unconstitutional.

Due to the significant impact the Act will have

on the individual users of TikTok, amici believes

that their perspective will assist the Court in

resolving this case. See Fed. R. App. P. 29(a)(3).

INTRODUCTION AND SUMMARY OF

ARGUMENT

The merits issue presented by this case is

whether the Act violates Santospirito’s First

Amendment rights guaranteed by the United States

Constitution. The answer is an unequivocal yes.

First, as mentioned above, Santospirito have

been using TikTok on a daily basis since at least

January 2019, almost six years. Santospirito have

viewed, downloaded, uploaded, recorded, sent, and/or

reposted more than 10,000 videos since first using

the application. Santospirito use TikTok as a means

to seek happiness and pleasure with the rigors of

daily life. Banning and singling out TikTok, will

prevent Santospirito from viewing videos and

expressing their views on TikTok. The effects of the

Act are a clear violation of the First Amendment.

2

Therefore, this Court should strike the Act and

declare it unconstitutional.

ARGUMENT AND CITATIONS OF AUTHORITY

I.

The Act Violates Santospirito’s First

Amendment Right To Free Speech.

This case presents an issue that goes to the

foundation of our country—freedom of expression

under the First Amendment of the U.S. Constitution.

The First Amendment guarantees “the freedom of

speech ... [and] the right of the people ... to petition

the Government for a redress of grievances.” U.S.

Const. amend. I; Cantwell v. Connecticut, 310 U.S.

296, 303 (1940). These rights are “implicit in ‘[t]he

very idea of government, republican in form.’”

McDonald v. Smith, 472 U.S. 479, 482 (1985)

(quoting United States v. Cruikshank, 92 U.S. 542,

552 (1876)). Government agencies prohibited from

"abridging the freedom of speech." See U.S. Const.

amend. I; see also Virginia v. Black, 538 U.S. 343,

358 (2003). The First Amendment requires courts to

scrutinize restrictions on "expression because of its

message, its ideas, its subject matter, or its content."

Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quoting

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65

(1983)).

Prior restraints on speech and publication are

the most serious and least tolerable infringement on

first amendment right. Neb. Press Ass’n v. Stuart,

427 U.S. 539, 559 (1976); Alexander v. United States,

509 U.S. 544, 550 (1993). The United States

Supreme Court has admonished “any form of prior

restraint of expression comes to a reviewing court

bearing a heavy presumption against its

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constitutional validity; therefore, the party who

seeks to have such a restraint upheld carries a heavy

burden of showing justification for the imposition of

such a restraint.” N.Y. Times Co. v. United States,

403 U.S. 713, 714 (1971). Furthermore, prior

restraints on speech are presumed unconstitutional.

See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546

(1975); Bantam Books, Inc. v. Sullivan, 372 U.S. 58,

70 (1963); Org. for a Better Austin v. Keefe, 402 U.S.

415, 419 (1971); Carroll v. Princess Anne, 393 U.S.

175, 181 (1968); Near v. Minnesota ex rel. Olson, 283

U.S. 697, 716 (1931).

When restricting a person’s fundamental

rights, courts must use strict scrutiny to determine

the validity of the restraint. United States v. Playboy

Entm't Grp., 529 U.S. 803, 813, (2000). Strict

scrutiny is applicable here because a fundamental

right (freedom of speech) is implicated by the Act.

Reno v. Flores, 507 U.S. 292 (1995) (holding a

fundamental right is one which has its source in and

is explicitly guaranteed by the United States

Constitution). Under strict scrutiny, the government

must adopt “the least restrictive means of achieving

a compelling state interest.” McCullen v. Coakley,

573 U.S. 464, 478 (2014). In fact, speech is a matter

of public concern and is at the heart of the first

amendment protection. Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749, 758–59

(1985).

Here, and importantly, this is not the first

time the Government has sought to ban TikTok and

violate Santospirito’s first amendment rights. See

TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 97 (D.D.C.

2020). The government has “concerns” about the

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possibility of propaganda being spread by foreign

adversaries to the users located in the United States.

Fed. Election Comm’n v. Mass. Citizens for Life, Inc.,

479 U.S. 238, 255 (1986) (“A statute’s “practical

effect” on protected speech is “sufficient to

characterize [it] as an infringement on First

Amendment activities.”).

First, as users since January 2019,

Santospirito have not seen or personally witnessed

any foreign adversary propaganda that the

government is “concerned” about.

Second, even if propaganda or misinformation

was being spread throughout the TikTok platform 2,

it is Santospirito’s first amendment right to view and

interpret the alleged propaganda as they deem fit

not what the government prefers Santospirito view.

See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

658 (1994) (“speaker-based restrictions ‘demand

strict scrutiny when they reflect the Government’s

preference for the substance of what the favored

speakers have to say (or aversion to what the

disfavored speakers have to say)’”); Lamont v.

Postmaster Gen., 381 U.S. 301, 307 (1965) (holding

the First Amendment barred efforts to ban receipt of

communist political propaganda); Police Dept. of

Chicago v. Mosley, 408 U.S. 92, 95 (1972). The

United States Supreme Court and federal courts

have routinely held even profane speech is protected

speech. See Cruise-Gulyas v. Minard, 918 F.3d 494,

497 (6th Cir. 2019) (ruling a person who raises their

2 Importantly,

Facebook and X (formerly Twitter) have been

plagued by misinformation since 2016. Congress has not sought

to ban those platforms.

5

middle finger engages in free speech protected by the

First Amendment); Sandul v. Larion, 119 F.3d 1250,

1255 (6th Cir. 1997); Cohen v. California, 403 U.S.

15 (1971) (ruling profanity such as “Fuck the Draft”

is protected free speech); Mahanoy Area Sch. Dist. v.

B.L. by and through Levy, 141 S. Ct. 2038 (2021)

(ruling a person with their middle finger raised and

stating “Fuck school fuck softball fuck cheer fuck

everything” is protected free speech).

Third, Santospirito have the right to receive

information and ideas abroad, not just from what the

government see is in their best interest or contains a

“threat to national security.” Walsh v. Brady, 927

F.2d 1229, 1235 (D.C. Cir. 1991); De Jonge v. Oregon,

299 U.S. 353, 365 (1937) (holding when the

government invokes national security to burden

speech, it is all “the more imperative” to “preserve

inviolate the constitutional rights of free speech, free

press and free assembly.”). Even under the Nixon

administration, which sought to enjoin the New York

Times from publishing articles concerning the

Pentagon Papers, this Court struck down the order

barring publication as a prior restraint. N.Y. Times

Co., 403 U.S. at 729–30. However, this Act is far

more reaching that the statute that was struck down

in Near. The Act bans Santospirito’s access to the

TikTok application altogether.

And fourth, the Act in and of itself, functions

as a prior restraint on Santospirito’s free speech. It

bars Santospirito from speaking and receiving

speech through the application before the speech is

uttered or published. A restraint of this magnitude is

akin to the scenario under Near, wherein a statute

barring publication of a newspaper was determined

6

to an unconstitutional prior restraint. Near, 283 U.S.

at 723.

All in all, the government has not satisfied the

requirement under the strict scrutiny standard to

sustain their argument that the Act is

constitutional. Simply put, the Act is a blatant

violation of the Santospirito’s First Amendment

right and does not withstand strict scrutiny and

should be reversed. If the Act is not deemed

unconstitutional and if a permanent injunction is not

entered preventing the Act from taking effect, the

Act will impermissibly enjoin and punished

Santospirito from engaging in constitutionally

protected activity. See Neb. Press Ass’n, 427 U.S. at

559.

CONCLUSION

This Court should grant certiorari, declare the

Act unconstitutional and issue a permanent

injunction preventing the Act from taking effect in

January 2025.

Respectfully submitted this 27th day of December

2024.

Chris Santospirito

Counsel of Record

Holz Family Law

1375 Jackson St., Suite 304

Fort Myers, FL 33901

239-332-3400

chris@flafamilylaw.com

Counsel for Amici

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