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

Nos. 24-656 & 24-657

In the Supreme Court of the United States

__________

TIKTOK, INC. AND BYTEDANCE LTD.,

Petitioners,

v.

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

__________

BRIAN FIREBAUGH, ET AL.,

Petitioners,

v.

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

__________

On Writs of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

__________

December 27, 2024

Thomas A. Berry

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

443-254-6330

tberry@cato.org

i

QUESTION PRESENTED

Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 7

I. “PROPAGANDA” IS PROTECTED BY

THE FIRST AMENDMENT. .......................... 7

II. “MISINFORMATION AND

DISINFORMATION” ARE

PROTECTED BY THE FIRST

AMENDMENT. ............................................. 14

III.THE D.C. CIRCUIT DID NOT

ENGAGE WITH THE LAW’S TRUE

CENSORIAL JUSTIFICATION, AND

IT DID NOT APPLY TRULY STRICT

SCRUTINY. ................................................... 21

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abrams v. United States, 250 U.S. 616 (1919).......... 10

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ............................................ 23

Brown v. Ent. Merch. Ass’n, 564 U.S. 786

(2011) ...................................................................... 13

Citizens United v. FEC, 558 U.S. 310 (2010) ............ 13

Cohen v. California, 403 U.S. 15 (1971)...................... 9

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ................................................ 13

Hustler Mag., Inc. v. Falwell, 485 U.S. 46

(1988) .................................................................. 8, 10

Knox v. Serv. Emps. Int’l Union, Loc. 1000,

567 U.S. 298 (2012) .................................................. 8

Lamont v. Postmaster General, 381 U.S. 301

(1965) ........................................................................ 5

Linmark Assocs., Inc. v. Willingboro Twp.,

431 U.S. 85 (1977) .................................................. 10

McCullen v. Coakley, 573 U.S. 464 (2014) ................ 23

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ................ 19

N.Y. Times Co. v. Sullivan, 376 U. S. 254

(1964) ........................................................................ 5

N.Y. Times v. United States, 403 U.S. 713

(1971) ...................................................................... 19

News Am. Pub., Inc. v. FCC, 844 F.2d 800

(D.C. Cir. 1988) ........................................................ 5

iv

Sorrell v. IMS Health Inc., 564 U.S. 552

(2011) ...................................................................... 13

Thomas v. Collins, 323 U.S. 516 (1945) ...................... 9

United States v. Alvarez, 567 U.S. 709 (2012)

........................................................ 13, 15, 16, 18, 20

United States v. Stevens, 559 U.S. 460 (2010) .......... 13

W.V. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .................................................. 5

Whitney v. California, 274 U.S. 357 (1927) ........ 10, 20

Statutes

Protecting Americans from Foreign

Adversary Controlled Applications Act,

Pub. L. No. 118-50 (2024) .................................. 3, 19

Other Authorities

107 CONG. REC. 17,815 (1961) ................................. 3, 4

107 CONG. REC. 17,818 (1961)...................................... 3

Amended Public Redacted Brief for

Respondent, TikTok Inc. v. Garland,

No. 24-1113 (D.C. Cir. Dec. 6, 2024).......... 12, 15, 21

Calder Walton, What’s Old Is New Again:

Cold War Lessons for Countering

Disinformation, 5 TEX. NAT’L SEC. REV. 50

(2022) ...................................................................... 21

Clay Calvert, et al., Fake News and the First

Amendment: Reconciling a Disconnect

between Theory and Doctrine,

86 U. CIN. L. REV. 99 (2018) ................... 9, 17, 20, 21

Daniel Arkin, Pence Calls TikTok ‘Digital

Fentanyl’, NBC NEWS (Mar. 13, 2024) .................... 4

v

GEORGE ORWELL, NINETEEN EIGHTY-FOUR

(1949) (Centennial ed. 2003).................................. 15

H.R. Comm. on Energy & Com., Protecting

Americans from Foreign Adversary

Controlled Applications Act,

H.R. Rep. No. 118-417 (2024) .......................... 11, 14

Historical Background of Propaganda Mail

Interception, in CONG. Q. ALMANAC

(18TH ED., 1962) ........................................................ 7

James Weinstein, What Lies Ahead?: The

Marketplace of Ideas, Alvarez v. United

States, and First Amendment Protection of

Knowing Falsehoods,

51 SETON HALL L. REV. 135 (2020) .................. 16, 18

Jane Coaston, What the TikTok Bill is Really

About, According to a Leading Republican,

N.Y. TIMES, (Apr. 1, 2024) ........................................ 4

JEFF KOSSEFF, LIAR IN A CROWDED THEATER:

FREEDOM OF SPEECH IN A WORLD OF

MISINFORMATION (2023) ................................... 17, 19

JOHN STUART MILL, ON LIBERTY

(Gertrude Himmelfarb ed. 1974) (1859) ............ 8, 17

Joseph Thai, The Right to Receive Foreign

Speech, 71 OKLA. L. REV. 269 (2018) ............... 12, 13

Legislation to Protect American Data and

National Security from Foreign

Adversaries: Hearing on H.R. 7520 and

H.R. 7521 Before the H. Committee on

Energy and Commerce, 118th Cong. (2024)

(statement of Rep. Cathy McMorris

Rodgers, Chairwoman, H. Comm. On

Energy and Commerce).......................................... 11

vi

President John F. Kennedy, Remarks on the

20th Anniversary of the Voice of America

(Feb. 26, 1962) .......................................................... 7

Press Release, Jared Huffman, Rep. Huffman

Statement on Vote for the Protecting

Americans from Foreign Adversary

Controlled Applications Act (Mar. 12, 2024) ......... 14

Press Release, Rep. Beth Van Duyne, Rep.

Beth Van Duyne Votes to Protect North

Texans from Communist China

(Mar. 13, 2024) ......................................................... 3

Press Release, Rep. Brett Guthrie, Guthrie

Votes to Protect Americans’ Data Privacy

and National Security (Mar. 13, 2024) .................. 11

Press Release, Rep. Jack Bergman, Bergman

Supports Bipartisan Legislation to Stop

Foreign Adversaries from Owning Social

Media Companies (Mar. 13, 2024)......................... 11

Press Release, Sean Casten, Casten

Statement on HR 7521 (Mar. 13, 2024) ................ 15

Press Release, The Select Comm. on the CCP,

Gallagher, Bipartisan Coalition Introduce

Legislation to Protect Americans from

Foreign Adversary Controlled Applications,

Including TikTok (Mar. 5, 2024) ......................... 3, 4

Press Release, Yvette D. Clark, Rep. Clarke

Releases Statement on H.R. 7521, the

Protecting Americans from Foreign

Adversary Controlled Applications Act

(Mar. 7, 2024) ......................................................... 14

vii

Report of the Select Committee on

Intelligence, U.S. Senate on Russian Active

Measures Campaigns and Interference in

the 2016 U.S. Election ........................................... 20

Richard Pipes, Ash Heap of History:

President Reagan’s Westminster Address

20 Years Later, Remarks at the Heritage

Foundation (June 3, 2002) ..................................... 10

RICK HASEN, CHEAP SPEECH: HOW

DISINFORMATION POISONS OUR

POLITICS―AND HOW TO CURE IT (2022) .................. 18

Roscoe Drummond, Propaganda War: Moscow

and the Mails, WASH. POST (July 15, 1961) ............ 3

SELECTED LITERARY AND POLITICAL PAPERS

AND ADDRESSES OF WOODROW WILSON

(1926) ...................................................................... 10

Steven G. Gey, The First Amendment and the

Dissemination of Socially Worthless

Untruths, 36 FLA. ST. UNIV. L. REV. 1 (2008)

........................................................................ 5, 9, 17

1

INTEREST OF AMICUS CURIAE1

The Cato Institute, established in 1977, is a nonpartisan public policy research foundation dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies helps restore

the principles of constitutional government that are

the foundation of liberty. Toward those ends, Cato

publishes books, studies, and the annual Cato Supreme Court Review, and conducts conferences and forums.

This case interests Cato because it concerns the

First Amendment rights of a social media company

and its users, a critically important issue in the digital

age.

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission.

2

SUMMARY OF ARGUMENT

One after another, members of Congress rose on

the House floor to support the bill. “It is really incredible,” one member said, “that we should allow an

avowed and powerful enemy to be pouring poisonous

propaganda into the minds of our own youth.” Another

member quoted an article warning of “unsolicited

propaganda attacking the United States as ‘imperialist,’ ‘war mongering,’ and ‘colonialist.’” The article

asked rhetorically whether “a free society ha[s] to

leave itself totally exposed to an unending brainwashing of foreign Communist propaganda—mostly concealed in its origin, subtle, purposeful—directed primarily at young Americans, at college students.”

The impressionability of youth was a running

theme of the day. The same member repeatedly emphasized that the propaganda at issue was “addressed

to our youth, the teachers, and to colleges and universities, because this is a favorite trick of the Communists to get at the minds of our young people.” Urging other members to support the bill, he called it “one

of the most serious problems we have, to stop this

Communist propaganda coming into our country. It is

the technique of the Communists to work on the young

minds of the various nations.”

These fears will sound familiar to anyone who has

followed recent debates over social media such as TikTok. But these members were not talking about TikTok. They were not talking about social media at all,

because social media did not exist when they spoke.

These congressional remarks were delivered not in

3

2024, but in 1961.2 The members were urging support

for a bill that would subject so-called “Communist political propaganda” to a regime of censorship, under

which mail from abroad was opened and read by government officials. If the officials decided that a piece of

mail qualified as such “propaganda,” the addressee

could only receive it by affirmative request.

Means of communication may change, but misguided censorial urges are eternal. The law at issue in

this case would have the effect of destroying TikTok as

we know it within the United States. See generally

Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, div. H

(2024) (hereinafter “the Act” or “the law”). The law was

motivated by the same flawed instinct that was on display in 1961: the belief that disfavored speech must be

fought with censorship rather than with counterspeech. Members of Congress justified this TikTok ban

with claims that “Communist China is using TikTok

as a tool to spread dangerous propaganda.”3 They described the speech available on TikTok as “bold attempts to infiltrate our country, spread propaganda.”4

2 107 CONG. REC. 17,815 (1961) (statement of Rep. Walter Judd);

id. at 17,818 (statement of Rep. Glenn Cunningham) (quoting

Roscoe Drummond, Propaganda War: Moscow and the Mails,

WASH. POST (July 15, 1961)); id. at 17,814 (statement of Rep.

Glenn Cunningham).

3 Press Release, The Select Comm. on the CCP, Gallagher, Bipar-

tisan Coalition Introduce Legislation to Protect Americans from

Foreign Adversary Controlled Applications, Including TikTok

(Mar. 5, 2024), https://tinyurl.com/yshcpwew (statement of Rep.

Elise Stefanik).

4 Press Release, Rep. Beth Van Duyne, Rep. Beth Van Duyne

Votes to Protect North Texans from Communist China (Mar. 13,

2024), https://tinyurl.com/3f999s7r.

4

And some candidly admitted that the content and

viewpoint of the speech on TikTok was their primary

motivation for the bill, not data privacy concerns. A cosponsor of the bill admitted that “the greater concern

is the propaganda threat” and the question of “what

information America’s youth gets.”5

The rhetoric that members used to justify the two

bills was strikingly similar despite being separated by

sixty years. Even the metaphors echoed across the decades. In 1961: “We would not allow any other country

to be shipping in dangerous drugs or disease bacteria.

We would not allow anybody to pour poison into our

water supply. But here is our most important possession, the minds and attitudes of our youth, and . . . we

allow that enemy to pour this poisonous material day

after day into the untrained and uncritical minds of

our youth.”6 In 2024: “TikTok is Communist Chinese

malware that is poisoning the minds of our next generation;”7 it is “digital fentanyl”8 that is “poisoning the

minds of our youth every day on a massive scale.”9

In the 1960s, this Court rightly struck down the restriction on “Communist political propaganda,”

5 Jane Coaston, What the TikTok Bill is Really About, According

to a Leading Republican, N.Y. TIMES (Apr. 1, 2024), https://tinyurl.com/rfrwhyda.

6 107 CONG. REC. 17,815 (1961) (statement of Rep. Walter Judd).

7 Press Release, The Select Comm. on the CCP, supra (statement

of Rep. Elise Stefanik).

8 Daniel Arkin, Pence Calls TikTok ‘Digital Fentanyl’, NBC NEWS

(Mar. 13, 2024), https://tinyurl.com/wkemkcka.

9 Press Release, The Select Comm. on the CCP, supra, (Statement

of Rep. Chip Roy).

5

finding it to be “an unconstitutional abridgment of the

addressee’s First Amendment rights.” Lamont v. Postmaster General, 381 U.S. 301, 307 (1965). The Court

described that law as being “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that

are contemplated by the First Amendment.” Id. (quoting N.Y. Times Co. v. Sullivan, 376 U. S. 254, 270

(1964)).

This Court should reach the same result here. The

government does not have any interest (let alone a

compelling one) in suppressing speech it views as

“propaganda.” Quite the opposite. “In a democracy,

government cannot be allowed to systematically indoctrinate its citizenry or instill in citizens a particular

ideological bias, because to do so would essentially allow the government to undermine popular control by

manufacturing its own consent.”10

As Justice Robert Jackson eloquently put it, “[i]f

there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” W.V. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 642 (1943). Congress

is attempting to prescribe the outer bounds of orthodoxy by destroying a platform because of the (perceived) viewpoints it carries. Courts can “infer censorial intent from legislative history and . . . invalidate

laws so motivated.” News Am. Pub., Inc. v. FCC, 844

F.2d 800, 809 (D.C. Cir. 1988). The censorial intent behind the Act is clear.

10 Steven G. Gey, The First Amendment and the Dissemination of

Socially Worthless Untruths, 36 FLA. ST. UNIV. L. REV. 1, 19

(2008).

6

Further, the evidence in the public record fails to

demonstrate that the Act is necessary to address concerns of data collection by the Chinese government.

The D.C. Circuit panel below assumed (without deciding) that strict scrutiny applies in this case. But although the form of scrutiny that the panel applied was

strict in name, it was deferential in application.

The panel opinion mainly relied on evidence suggesting (in the panel’s view) that TikTok’s parent company ByteDance had misused TikTok user data and on

evidence suggesting that the Chinese government has

an interest in obtaining Americans’ data. App 41a–

42a. But notably missing from the panel opinion was

any evidence that the Chinese government has obtained TikTok user data or that it has a specific plan

to do so.

The panel accepted the government’s prediction

“that ByteDance and TikTok entities ‘would try to

comply if the [Chinese government] asked for specific

actions to be taken . . . .’” App. 36a. But the panel implicitly admitted that this threat remains speculative.

Quoting another D.C. Circuit opinion that had applied

arbitrary and capricious review (not First Amendment

review), the panel asserted that “[t]he Government

‘need not wait for a risk to materialize’ before acting[.]”

App. 41a (quoting China Telecom (Am’s.) Corp. v. FCC,

57 F.4th 256, 266 (D.C. Cir. 2022)). That may be true

under arbitrary and capricious review, but much more

is required to show a “compelling governmental interest” under First Amendment strict scrutiny.

While non-content-based concerns over hacking

and data-tracking could hypothetically justify government action against a platform, the government has

not proffered public evidence that meets the high

7

burden necessary to support this justification. Based

on the publicly available record, the Court should invalidate the Act.

ARGUMENT

I.

“PROPAGANDA” IS PROTECTED BY THE

FIRST AMENDMENT.

We welcome the views of others. We seek

a free flow of information across national

boundaries and oceans, across iron

curtains and stone walls. We are not

afraid to entrust the American people

with unpleasant facts, foreign ideas,

alien philosophies, and competitive

values. For a nation that is afraid to let

its people judge the truth and falsehood

in an open market is a nation that is

afraid of its people.11

With these remarks, President John F. Kennedy succinctly stated America’s free speech ideals.12 These

ideals have a lengthy historical pedigree, tracing back

to John Stuart Mill and beyond. As Mill put it,

the peculiar evil of silencing the

expression of an opinion is, that it is

11 President John F. Kennedy, Remarks on the 20th Anniversary

of the Voice of America (Feb. 26, 1962), available at, https://tinyurl.com/5n87us7j.

12 Kennedy’s own record of putting these ideals into practice is

mixed. While he ended a Post Office program monitoring Communist “propaganda” in 1961, he later signed the bill which

brought a substantially similar program back into effect, until its

invalidation by this Court. Historical Background of Propaganda

Mail Interception, in CONG. Q. ALMANAC (18TH ED., 1962), at 07–

370.

8

robbing the human race; posterity as well

as the existing generation; those who

dissent from the opinion, still more than

those who hold it. If the opinion is right,

they are deprived of the opportunity of

exchanging error for truth: if wrong, they

lose, what is almost as great a benefit, the

clearer perception and livelier impression

of truth, produced by its collision with

error.13

And the principles articulated by Kennedy and Mill

are not just cultural values; they are protected by the

First Amendment. This Court has repeatedly affirmed

that “[a]t the heart of the First Amendment is the

recognition of the fundamental importance of the free

flow of ideas and opinions on matters of public interest

and concern.” Hustler Mag., Inc. v. Falwell, 485 U.S.

46, 50 (1988). Given this importance, “[t]he First

Amendment creates an open marketplace in which differing ideas about political, economic, and social issues

can compete freely for public acceptance without improper government interference.” Knox v. Serv. Emps.

Int’l Union, Loc. 1000, 567 U.S. 298, 308–09 (2012)

(cleaned up).

As this Court has recognized, preserving this marketplace of ideas requires carefully cabining the government’s authority. The First Amendment is thus

“designed and intended to remove governmental restraints from the arena of public discussion, putting

the decision as to what views shall be voiced largely

into the hands of each of us, in the hope that use of

13 JOHN STUART MILL, ON LIBERTY 76 (Gertrude Himmelfarb ed.

1974) (1859).

9

such freedom will ultimately produce a more capable

citizenry and more perfect polity.” Cohen v. California,

403 U.S. 15, 24 (1971).

Maintaining the marketplace of ideas requires

placing restrictions on the government’s power over

speech. “[I]t cannot be the duty, because it is not the

right, of the state to protect the public against false

doctrine. The very purpose of the First Amendment is

to foreclose public authority from assuming a guardianship of the public mind through regulating the

press, speech, and religion. In this field every person

must be his own watchman for truth, because the forefathers did not trust any government to separate the

true from the false for us.” Thomas v. Collins, 323 U.S.

516, 545 (1945) (Jackson, J., concurring).

“At bottom, the key is who gets to decide what content is appropriate to circulate in the marketplace of

ideas.”14 It is dangerous to give the government control

over that decision precisely because government power

distorts the free marketplace of ideas. “[I]f the government were allowed to enshrine in law and prohibit the

disavowal of a set of ideological principles that favored

the current status quo, the dominant political faction

could preempt any attacks on the legitimacy of its

power.”15

And even when government does not act with an

intentionally self-serving purpose, regulators will often be too quick to dismiss an idea that deserves a full

airing (or to embrace an idea that has unseen flaws).

14 Clay Calvert, et al., Fake News and the First Amendment: Rec-

onciling a Disconnect between Theory and Doctrine, 86 U. CIN. L.

REV. 99, 137–38 (2018).

15 Gey, supra, at 20.

10

“[W]hen men have realized that time has upset many

fighting faiths, they may come to believe even more

than they believe the very foundations of their own

conduct that the ultimate good desired is better

reached by free trade in ideas—that the best test of

truth is the power of the thought to get itself accepted

in the competition of the market.” Hustler Mag., 485

U.S. at 51 (quoting Abrams v. United States, 250 U.S.

616, 630 (1919) (Holmes, J., dissenting)).

Of course, not all views have merit and not all ideas

have wisdom. Many ideologies deserve their place on

the “ash heap of history.”16 But a society cannot truly

reject an idea that it has not yet been allowed to hear.

“[I]t is by the exposure of folly that it is defeated; not

by the seclusion of folly.”17 That is why this Court has

consistently held that the antidote for misguided ideas

is counterspeech, not censorship. “If there be time to

expose through discussion the falsehood and fallacies,

to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85,

97 (1977) (quoting Whitney v. California, 274 U.S. 357,

377 (1927) (Brandeis, J., concurring)).

The explicitly stated justifications for the TikTok

ban at issue in this case are antithetical to these principles. Congress has not attempted to hide the ball.

The purpose of this law is to stop Americans from

16 Richard Pipes, Ash Heap of History: President Reagan’s West-

minster Address 20 Years Later, Remarks at the Heritage Foundation (June 3, 2002) (transcript available at, https://tinyurl.com/we8ax4h7).

Woodrow Wilson, Address at the Institute of France, Paris

(May 10, 1919) in 2 SELECTED LITERARY AND POLITICAL PAPERS

AND ADDRESSES OF WOODROW WILSON 333 (1926).

17

11

receiving speech on TikTok, because Congress disagrees with (what it perceives to be) the messages expressed on TikTok.

A House committee report on a bill that served as

a precursor to the Act claimed that TikTok could be

used to “push misinformation, disinformation, and

propaganda on the American public.” H.R. Comm. on

Energy & Com., Protecting Americans from Foreign

Adversary Controlled Applications Act, H.R. Rep. No.

118-417, at 2 (2024) (emphasis added). The report also

warned (using language that might fairly describe

every newspaper in America) that the platform could

“shape narratives and elevate favorable opinions.” Id.

at 11.

Myriad statements made by members of Congress

have removed any doubt that the law is aimed at TikTok because of the perceived viewpoint (and persuasiveness) of speech on the platform. One member said

that TikTok “should not be influencing our children

and . . . should not be able to indoctrinate American

users.”18 Another called it “a valuable propaganda

tool.”19 And a third warned that it could “influence the

American people and our way of life.”20 Whether these

18 Press Release, Rep. Jack Bergman, Bergman Supports Biparti-

san Legislation to Stop Foreign Adversaries from Owning Social

Media Companies (Mar. 13, 2024), https://tinyurl.com/4cr6k2vr.

19Legislation

to Protect American Data and National Security

from Foreign Adversaries: Hearing on H.R. 7520 and H.R. 7521

Before the H. Committee on Energy and Commerce, 118th Cong. 3

(2024) (statement of Rep. Cathy McMorris Rodgers, Chairwoman,

H. Comm. On Energy and Commerce).

20 Press Release, Rep. Brett Guthrie, Guthrie Votes to Protect

Americans’ Data Privacy and National Security (Mar. 13, 2024),

https://tinyurl.com/msu7242f.

12

members were right or wrong about the content or persuasiveness of the speech on TikTok, they admitted

that they wished to silence the platform because of the

viewpoints that they believed the platform carried.

The government has also admitted this purpose behind the law. In its briefing to the D.C. Circuit below,

the government argued that the law is necessary to

prevent TikTok from being used to amplify speech that

could “undermine trust in our democracy and exacerbate social divisions.”21

The censorship that Congress hopes to achieve cannot be sustained under the Constitution.

First, the Act cannot be justified on the grounds

that the targeted speech may come from noncitizens

residing outside the United States, who do not have

First Amendment rights. Destroying TikTok in the

United States would mean that no one could use the

platform to broadcast their message. This law would

cut off the speech of not just noncitizens but also millions of U.S. citizens with full First Amendment rights.

Further, the noncitizen status of some (but not all)

speakers on TikTok is irrelevant, because destroying

TikTok would infringe Americans’ First Amendment

right to receive speech. And that right applies just as

much to speech sent from overseas as it does to speech

sent from next door. This Court “in recent decades has

fortified the right to receive information and ideas in a

variety of contexts.”22 “Considered together, these

21 Amended Public Redacted Brief for Respondent at 35, TikTok

Inc. v. Garland, No. 24-1113 (D.C. Cir. Dec. 6, 2024).

22 Joseph Thai, The Right to Receive Foreign Speech, 71 OKLA. L.

REV. 269, 305 (2018) (citing Sorrell v. IMS Health Inc., 564 U.S.

13

decisions likely preclude the government from barring

the entry of political speech from abroad on the ground

that the speaker is foreign or that the speech is valueless or false—not because foreign speakers abroad

have a First Amendment right to speak, but because

the First Amendment demands an open marketplace

of ideas for domestic listeners.”23

Second, Congress’s intended censorship cannot be

justified on the grounds that America’s youth needs

protection from the supposed threat of foreign propaganda. The government does not have “a free-floating

power to restrict the ideas to which children may be

exposed. ‘Speech that is neither obscene as to youths

nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from

ideas or images that a legislative body thinks unsuitable for them.’” Brown, 564 U.S. at 794–95 (quoting

Erznoznik v. City of Jacksonville, 422 U.S. 205, 213–

14 (1975)).

Minors have a First Amendment right to receive

speech. And the government cannot restrict that right

on the basis of a “parental consent” theory. The government could not make it “criminal to admit persons

under 18 to a political rally without their parents’ prior

written consent.” Brown, 564 U.S. at 795 n.3. “Such

laws do not enforce parental authority over children’s

speech . . . ; they impose governmental authority, subject only to a parental veto.” Id. Parents, of course, can

552 (2011); Citizens United v. FEC, 558 U.S. 310 (2010); Brown v.

Ent. Merch. Ass’n, 564 U.S. 786 (2011); United States v. Stevens,

559 U.S. 460 (2010); United States v. Alvarez, 567 U.S. 709

(2012)).

23 Id.

14

choose what is best for their children and control their

social media access. But governmental censorship of a

social media platform would take that choice away

from children and parents.

In sum, the Act has singled out TikTok because

lawmakers decided that the solution to arguments

they did not like is government censorship. Labeling

such arguments “propaganda” does not exempt them

from the First Amendment. On the contrary, Lamont

makes clear that the most disfavored political speech

is most in need of vigilant judicial protection from government suppression.

II. “MISINFORMATION

AND

DISINFORMATION” ARE PROTECTED BY THE FIRST

AMENDMENT.

A second clear theme runs through the congressional statements justifying the Act. The House committee report warned of “misinformation” and “disinformation.” H.R. Comm. on Energy & Com., supra, at

2. One member of Congress claimed that speech on

TikTok was part of an “extensive disinformation campaign.”24 Another similarly warned that the platform

could be used “to foment malign disinformation campaigns.”25 And a third likewise invoked the fear of

24 Press Release, Yvette D. Clark, Rep. Clarke Releases State-

ment on H.R. 7521, the Protecting Americans from Foreign Adversary Controlled Applications Act (Mar. 7, 2024), https://tinyurl.com/5y68mjd3.

25 Press Release, Jared Huffman, Rep. Huffman Statement on

Vote for the Protecting Americans from Foreign Adversary Controlled Applications Act (Mar. 12, 2024), https://tinyurl.com/3psywtxd.

15

“[f]oreign interference

paigns.”26

and

disinformation

cam-

The government has admitted this purpose behind

the Act as well. In its briefing to the D.C. Circuit, the

government quoted with approval a U.S. senator’s concern that TikTok could be used for “promot[ing] disinformation.”27

This justification for the law fares no better than

the “propaganda” justification. Just as the government

may not censor viewpoints it disfavors, neither may it

serve as an arbiter of truth. “Our constitutional tradition stands against the idea that we need Oceania’s

Ministry of Truth.” United States v. Alvarez, 567 U.S.

709, 723 (2012) (plurality opinion) (citing GEORGE ORWELL, NINETEEN EIGHTY-FOUR (1949) (Centennial ed.

2003)).28 Our constitutional tradition favors open discussion rather than government fiat, and that holds

true for questions of fact just as much as questions of

politics and philosophy.

Just as censoring a flawed political argument

makes it harder to rebut, censoring a false statement

makes it harder to disprove. Thus, “suppression of

speech by the government can make exposure of falsity

more difficult, not less so. Society has the right and

civic duty to engage in open, dynamic, rational discourse.” Alvarez, 567 U.S. at 728. For all these reasons,

26 Press Release, Sean Casten, Casten Statement on HR 7521

(Mar. 13, 2024), https://tinyurl.com/r975wn55.

27 Amended Public Redacted Brief for Respondent at 35, TikTok

Inc. v. Garland, No. 24-1113 (D.C. Cir. Dec. 6, 2024) (alteration

in original).

28 All citations to Alvarez are to Justice Kennedy’s plurality opin-

ion unless otherwise noted.

16

“[t]he remedy for speech that is false is speech that is

true. This is the ordinary course in a free society. The

response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the

simple truth.” Id. at 727. Put another way, “[t]he First

Amendment presumes that as the ultimate governors

of society, we are rational agents capable of sorting out

truth from falsity without government supervision.”29

In the long run, giving the government truth-deciding power would have a negative effect on citizens’ own

motivation to make independent judgments. “The benefits to be achieved by having the government correct

the dissemination of factual falsehoods would be far

outweighed by the signaling effect of having the government settle intellectual disputes through legal

sanctions. Allowing the government to act in this way

would subtly diminish the importance of recognizing

the government’s natural tendency to twist reality to

its own purposes. Allowing the government to encourage truthfulness by punishing falsehood has the potential for lulling the citizenry into taking what the government says at face value.”30

Relatedly, granting such power to the government

would lead to many true statements being accidentally

censored as false, for the simple reason that no one (including government officials) will get every call right.

“Those who desire to suppress” purportedly false

speech “of course deny its truth; but they are not infallible. . . To refuse a hearing to an opinion, because they

29 James Weinstein, What Lies Ahead?: The Marketplace of Ideas,

Alvarez v. United States, and First Amendment Protection of

Knowing Falsehoods, 51 SETON HALL L. REV. 135, 165 (2020).

30 Id.

17

are sure that it is false, is to assume that their certainty is the same thing as an absolute certainty. All

silencing of discussion is an assumption of infallibility.”31

Even more ominously, some wrongful cases of censorship would result from malice rather than from

honest mistakes. If the government were granted the

power to censor certain speech on the grounds that it

is “misinformation,” that power would be ripe for

abuse. Prosecution of falsehoods would necessarily be

selective, and often particular statements would be

targeted because the “statement of such facts are

bound up with political perspectives that the government seeks to undermine.”32 “Imagine, for instance,

that a president and his party, which controls both

houses of Congress, believes that ‘fake news’ about

health—which also just happens to criticize the administration’s handling of a public health crisis—is

causing people to make dangerous health decisions.”33

Because of the danger inherent in this and other examples, “a truly self-governing democracy cannot allow those temporarily vested with power to dictate

what is true or false.”34

The Act at issue in this case exemplifies these concerns. In passing the law, the government singled out

TikTok despite offering no evidence that TikTok contains more falsehoods than any other social media site.

Given the sheer volume of social media posts, it would

31 MILL, supra, at 19.

32 Gey, supra, at 22.

JEFF KOSSEFF, LIAR IN A CROWDED THEATER: FREEDOM OF

SPEECH IN A WORLD OF MISINFORMATION 197 (2023).

33

34 Calvert, supra, at 135.

18

be easy for the government to cherry pick particular

examples of falsehoods on any social media site and

use those falsehoods as a justification to shut down the

disfavored site. As Justice Breyer wrote, “the pervasiveness of false statements . . . provides a weapon to

a government broadly empowered to prosecute falsity

without more. And those who are unpopular may fear

that the government will use that weapon selectively,

say, by prosecuting a pacifist who supports his cause

by (falsely) claiming to have been a war hero, while ignoring members of other political groups who might

make similar false claims.” Alvarez, 567 U.S. at 734

(Breyer, J., concurring in judgment).

Americans on all sides of the political spectrum

should be wary of such government power. “Think

about a law giving the government the power to remove ‘misleading political speech’ from social media

sites, and now imagine that a Trump appointee (or an

appointee of whichever president you think might not

play fairly under the rules) has the power to decide

what counts as ‘misleading speech’ and to order such

speech immediately removed from social media

sites.”35 No matter who is in office, “selectively prosecuting those with whose speech the government disagrees violates the core democratic precept of equal participation in the political process.”36

And looking to the future beyond TikTok, the Act

would grant the government a further tool of selective

censorship. In the Act, Congress has given the president a weapon to suppress and censor disfavored

35 RICK HASEN, CHEAP SPEECH: HOW DISINFORMATION POISONS

OUR POLITICS―AND HOW TO CURE IT 81 (2022).

36 Weinstein, supra, at 165.

19

speech on other platforms beyond TikTok, based on an

amorphous finding of “a significant threat” to “national security.” The Act, supra, § 2(g)(3)(B)(ii). With

no further guidelines, it is easy to imagine an administration picking and choosing which platforms to consider a threat to national security, potentially on the

basis of selectively identified “disinformation.” “The

word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” N.Y. Times

v. United States, 403 U.S. 713, 719 (1971) (Black, J.,

concurring). When it comes to the power to shut down

a speech platform, far more statutory guidance is required to ensure that actions taken are not pretextual.

“[P]recision must be the touchstone of legislation so affecting basic freedoms.” N.A.A.C.P. v. Button, 371 U.S.

415, 438 (1963).

Finally, government censorship of alleged falsehoods is incompatible with the First Amendment because the government itself has tools to counteract

misinformation that are far less restrictive than censoring speech (or banning entire platforms). “Censorship regimes may block some lies. But it is rare that

government regulations can effectively block all or

even most false speech, and in doing so they may also

prevent a great deal of true speech with little benefit.”37

For all these reasons, the government must first attempt to further its aims with its less speech-restrictive tools. These tools are the government’s own speech

and the government’s ability to provide civic education. Yet in this case, the government made no attempt

37 Kosseff, supra, at 146.

20

to solve the alleged problems of misinformation on social media with these less extreme options.

Just as in Alvarez, “[t]he Government has not

shown, and cannot show, why counterspeech would

not suffice to achieve its interest. The facts of this case

indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie.” Alvarez,

567 U.S. at 726. “[T]he processes of education” may

“avert the evil” of “falsehood and fallacies.” Whitney,

274 U.S. at 377 (Brandeis, J., concurring).

“If the government is to play any part in fighting

fake news, its role must be educational, not censorial.

This means ramping up digital media literacy efforts

in the nation’s classrooms.”38 Indeed, Congress is

aware of such options, since they were proposed in a

high-profile Select Committee Report. See Report of

the Select Committee on Intelligence, U.S. Senate on

Russian Active Measures Campaigns and Interference

in the 2016 U.S. Election, vol. 2, p. 81 (calling for a

“public initiative . . . focused on building media literacy

from an early age” to “help build long-term resilience

to foreign manipulation of our democracy”). With education, the government can bolster “private efforts to

combat fake news, including counterspeech, self-regulation and media-literacy education.”39

Foreign disinformation is not a new phenomenon.

“Soviet disinformation campaigns that targeted domestic racial injustice and disease outbreak are direct

precedents for disinformation efforts by Russia, and

other hostile states, that target Western democracies

38 Calvert, supra, at 138.

39 Id. at 107.

21

today.”40 In response to prior campaigns, the U.S. government adopted a “strategy of reporting, assessing,

and publishing” counterspeech that “was effective” in

mitigating the effects of Soviet disinformation and

that “remains applicable today.”41 These examples

show that disinformation can be effectively rebutted

without resorting to government censorship.

Options like media literacy education and government counterspeech “are far superior to creating a government agency vested with Orwellian authority to determine what news is true and false and, in turn, to

censor the latter.”42

III. THE D.C. CIRCUIT DID NOT ENGAGE WITH

THE LAW’S TRUE CENSORIAL JUSTIFICATION, AND IT DID NOT APPLY TRULY

STRICT SCRUTINY.

In its opinion below, the D.C. Circuit implausibly

recharacterized the purpose of the law. The Court did

not engage with the government’s own admission in its

briefing that the law was aimed at suppressing speech

that could “undermine trust in our democracy and exacerbate social divisions” and that the law was passed

to stop TikTok from being used for “promot[ing] disinformation.”43 Instead, the panel held that the law was

passed to protect TikTok itself.

40 Calder Walton, What’s Old Is New Again: Cold War Lessons for

Countering Disinformation, 5 TEX. NAT’L SEC. REV. 50, 71 (2022).

41 Id. at 72.

42 Calvert, supra, at 107.

43 Amended Public Redacted Brief for Respondent at 35, TikTok

Inc. v. Garland, No. 24-1113 (D.C. Cir. Dec. 6, 2024) (alteration

in original).

22

Specifically, the panel reasoned that the Act was

passed “to end the [Chinese government’s] ability to

control TikTok” and that “[u]nderstood in that way,

the Act actually vindicates the values that undergird

the First Amendment.” App. 43a.

It is puzzling to reframe the law as aimed at protecting TikTok from governmental regulation by

China, given that TikTok itself has brought this challenge and made very clear that it does not want such

an intervention. Even assuming for the sake of argument that TikTok is or will be subject to such regulation by a foreign government, the Act would “save” TikTok by ending its ability to operate in the United

States entirely. To borrow an ironic phrase from medicine, a successful operation would kill the patient.

Suppose (to use an analogy to traditional print media) there were evidence that a book published by a

foreign dissident had been edited by a foreign government to remove its most unflattering chapter. It would

be entirely appropriate for the American government

to publicly note that censorship and to explain how the

book had been altered through the use of its own government speech. But it would be counterproductive

and, indeed, unconstitutional for the American government to instead ban the book entirely from being

sold by American booksellers in a misguided attempt

to “save” that foreign author from the censorship of his

own government.

Even if the D.C. Circuit’s justification were

grounded in factual evidence, and even if it were one

of the government’s motivations for the law, it would

23

not justify a de facto ban on TikTok.44 The solution to

censorship is not more censorship.

Nor does the public record (on which the panel entirely relied) justify the Act on data privacy concerns.

Although the panel claimed that it was applying strict

scrutiny, it consistently deferred to the government,

not to the challengers. The opinion’s analysis is strict

in theory but friendly in fact.

“Under strict scrutiny, the government must adopt

‘the least restrictive means of achieving a compelling

state interest[.]’” Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373, 2383 (2021) (quoting McCullen v.

Coakley, 573 U.S. 464, 478 (2014)). A court applying

this test must independently assure itself that the government has satisfied this very high bar. But the panel

instead relied primarily on the government’s say-so.

The panel insisted that it “would be wholly inappropriate” for a court to “reject the Government’s risk

assessment and override its ultimate judgment” that

it had no choice but to pass the law. App. 51a. Why is

that? Because “Executive Branch officials ‘conducted

dozens of meetings,’ considered ‘scores of drafts of proposed mitigation terms,’ and engaged with TikTok as

well as Oracle for more than two years” before the law

was passed. App. 52a. The opinion thus treats the government’s own dissatisfaction with other options as

decisive evidence that there were no other options.

Truly strict scrutiny requires that this Court independently determine whether the risk of TikTok user

Notably, as the panel below observed, “the Government

acknowledges that it lacks specific intelligence that shows the

[Chinese government] has in the past or is now coercing TikTok

into manipulating content in the United States.” App. 47a.

44

24

data falling into the hands of the Chinese government

is so high that the U.S. government had no alternative

but to pass the law at issue. The publicly available record does not show a data-privacy threat so imminent

and unavoidable as to overcome strict First Amendment scrutiny.

CONCLUSION

Congress passed the Act because it doesn’t like

some of the speech on TikTok (or some of the speech

Congress thinks is on TikTok) and because Congress

wants to suppress and censor that speech. Not only

that, Congress gave future presidents a dangerous tool

with which to threaten or destroy other disfavored

speech platforms. If members of Congress or the

government disagree with the facts or opinions found

on a social media site like TikTok, they can respond

and rebut with more persuasive speech. But under the

First Amendment, the government cannot punish (let

alone destroy) a speech platform because of the

viewpoints it carries. That is what happened here, and

this Court should block the Act from taking effect.

........................................... Respectfully submitted,

Thomas A. Berry

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

443-254-6330

tberry@cato.org

December 27, 2024