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., ET AL.,

Petitioners,

V.

MERRICK B. GARLAND, ATTORNEY GENERAL,

_________

Respondent.

BRIAN FIREBAUGH, ET AL.,

V.

Petitioners,

MERRICK B. GARLAND, ATTORNEY GENERAL,

_________

Respondent.

On Writs of Certiorari from the United States Court of

Appeals for the District of Columbia Circuit

_________

BRIEF OF AMICUS CURIAE PROFESSOR MILTON

MUELLER IN SUPPORT OF PETITIONERS

_________

Anne M. Voigts

Counsel of Record

Pillsbury Winthrop Shaw Pittman

2550 Hanover Street

Palo Alto, CA 94304-1115

(650) 233-4075

anne.voigts@pillsburylaw.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICUS

CURIAE ..................................................................1

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

ARGUMENT ................................................................5

I. This Court Should Not Defer to the

Government’s Constitutional Analysis ............5

II. Americans Have a Constitutional Right

To Communicate on Their Platform of

Choice and To Receive Information

From Foreign Sources.......................................8

III.The Court of Appeals Relied on An

Inaccurate Assessment of the Purported

Threat Scenario ..............................................14

A. The Dog That Didn’t Bark: The

Government’s Allegations of “Covert

Manipulation” Do Not Hold Up ................ 15

B. The Court’s Concerns With Covert Content

Manipulation Depend On A Fundamental

Misunderstanding Of How Social Media

Platforms Function .................................... 18

C. The Appellate Court’s Reliance on Foreign

Ownership Limits in Radio Was Also

Wrong ......................................................... 24

D. The Threat Of Data And Espionage Also

Does Not Warrant Disregarding The

Constitution’s Bar On Government

Regulation Of Speech ................................ 27

ii

IV. The Manner In Which the United States

Regulates Speech Domestically Has

Broad Ramifications For Foreign Policy. .......30

CONCLUSION ..........................................................32

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abrams v. United States,

250 U.S. 616 (1919) .............................................30

Boumediene v. Bush,

553 U.S. 723 (2008) ................................................6

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ................................................6

Korematsu v. United States,

65 S. Ct. 193 (1944) ..............................................31

Lamont v. Postmaster General,

381 U.S. 301 (1965) ....................................9, 10, 11

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) ..............................................13

Near v. State of Minnesota ex rel. Olson,

283 U.S. 697 (1931) ................................................8

NetChoice v. Moody,

603 U.S. 707 (2024) ........................................12, 13

New York Times Co. v. United States,

403 U.S. 713 (1971) ..........................................6, 30

Noe v. FCC,

260 F.2d 739 (D.C. Cir. 1958) ..............................26

iv

Red Lion Broadcasting Co. v. Federal

Communications Commission,

395 U.S. 367 (1969) ..............................................10

TikTok, Ltd., et al. v. Garland, __ F.4th __,

2024 WL 4996719 (D.C. Cir. Dec. 6, 2024)

................................. ………..3, 5, 10, 12, 14, 15, 24

United States v. U.S. Dist. Ct. for E. Dist. of Mich., S.

Div.,

407 U.S. 297 (1972) ................................................6

Whitney v. California,

274 U.S. 357 (1927) ..............................................22

Other Authorities

Kat TenBarge, X Sees Largest User Exodus Since

Musk Takeover,

https://www.nbcnewyork.com/news/nationalinternational/x-largest-user-exodus-since-elonmusk- takeover/5982438 ......................................21

https://freedomhouse.org/country/china/freedomnet/20 .................................................................... 31

Milton Mueller, et al., “TikTok and U.S. National

Security,” Georgia Tech Internet Governance

Project, Jan. 2023,

https://www.internetgovernance.org/research/tikto

k-and-us-national-security/............................ 27, 28

v

Jose Enrico, X Likely to Lose More Users in 2025,

https://www.techtimes.com/articles/308735/20241

216/x-likely-lose-more-users-2025-post-electionexodus-projected-have-continuous-rippleeffect.htm .............................................................. 21

Alex Hollings, 4 times movies changed because of

Chinese pressure, Mighty. October 30, 2020.

https://www.wearethemighty.com/mightymovies/hollywood-china-censorship/ ...................17

Donna M. DiPaolo, Executive Research Project,

Foreign Ownership Restrictions in

Communications and “Cultural” Trade: National

Security Implications. Thesis, The Industrial

College of the Armed Forces,

https://apps.dtic.mil/sti/tr/pdf/ADA314840.pdf .. 26,

27

1

STATEMENT OF INTEREST OF

AMICUS CURIAE1

Amicus curiae Professor Milton L. Mueller is an

internationally prominent scholar specializing in

cybersecurity, data governance, public affairs,

internet governance, and national security. Professor

Mueller is a Senior Professor at Georgia Institute of

Technology, School of Public Policy and the Program

Director for Georgia Tech’s interdisciplinary master’s

degree in Cybersecurity. He is also the author of seven

books and scores of journal articles. In particular, his

books Will the Internet Fragment? (Polity, 2017),

Networks and States: The global politics of Internet

governance (MIT Press, 2010) and Ruling the Root:

Internet Governance and the Taming of Cyberspace

(MIT Press, 2002) are acclaimed scholarly accounts of

the global governance regime emerging around the

Internet.

Dr. Mueller is also the co-founder and director

of the Internet Governance Project (IGP), a policy

analysis center for global Internet governance. Since

its founding in 2004, IGP has played a prominent role

in shaping global Internet policies and institutions

such as ICANN and the Internet Governance Forum.

Founded in 2004, the Internet Governance Project

(IGP) has grown to be a leading source of analysis of

global Internet policy and Internet resource

management that is widely read by governments,

1 Pursuant to S. Ct. Rule 37, no counsel for a party authored this

brief in whole or in part and no person or entity other than

amicus or his counsel made a monetary contribution to its

preparation or submission.

2

industry, and civil society organizations. He has

participated in proceedings and policy development

activities

of

ICANN,

the

International

Telecommunications Union (ITU), the National

Telecommunications and Information Administration

(NTIA), and regulatory proceedings in the European

Commission, China, Hong Kong and New Zealand,

and has served as an expert witness in prominent

legal cases related to telecommunication policy. He

was elected to the Advisory Committee of the

American Registry for Internet Numbers (ARIN) from

2013 to 2016 and appointed in 2014 to the IANA

Stewardship Coordination Group. Dr. Mueller has

also been a practical institution-builder in the

scholarly world, where he led the creation of the

Global Internet Governance Academic Network

(GigaNet), an international association of scholars.

This amicus brief explains why, based on Dr.

Mueller’s decades of experience and research, this

Court should not defer to the government’s

constitutional analysis. As Dr. Mueller explains, the

appellate court’s analysis gave insufficient weight to

American’s constitutional right to communicate on

their platform of choice and receive information from

sources that do not meet with government approval,

relied on an inaccurate assessment of the potential

threats, and has broad—and negative—ramifications

for foreign policy.

SUMMARY OF THE ARGUMENT

The Protecting Americans from Foreign

Adversary Controlled Applications Act (“the Act”) is

3

an unconstitutional solution to a perceived problem

that does not warrant the extraordinary and

unprecedented step of banning an entire digital

platform.

In

its

decision

upholding

the

constitutionality of the Act, the Court of Appeals gave

“great weight to the Government’s evaluation of the

facts because the Act implicates sensitive and weighty

interests of national security and foreign affairs.”

TikTok, Ltd., et al. v. Garland, __ F.4th __, 2024 WL

4996719 at *13 (D.C. Cir. Dec. 6, 2024). But deference

is not the equivalent of an indulgence, excusing all

manner of constitutional sins, including what the

Court itself called “the absence of ‘concrete evidence’

on the likelihood of PRC-directed censorship of TikTok

in the United States.” Id. at *20.

Here, that deference prevented the court from

fully and properly considering the most essential

issues in this case.

First, the appellate court failed to provide a

coherent analysis of the scope and scale of the alleged

national security risks and whether those risks justify

the Act’s unprecedented curbs on freedom of

expression and Internet access. Instead of conducting

a proper balancing test, the court simply agreed that

there was a risk and conducted no adequate analysis

whether it rose to the level of a national security

threat or whether the Act was a proportionate

solution. (It does not and it is not.) And while the

appellate court purportedly relied on only those facts

in the public record, the government’s position that

the courts (and the public) should trust it to both

assess the purported problem and to craft a draconian

4

solution to it is one that every court, and citizen,

should find troubling.

Second, the appellate court’s decision focuses so

narrowly on TikTok/ByteDance as a company that it

fails to meaningfully consider the First Amendment

rights of Americans to choose to use TikTok to convey

and receive communications. The very nature of these

platforms, including the fact that their content is usergenerated, and curated according to the platform’s

expressive choices, means that a law that regulates a

specific platform, like this one, is not and cannot be

content-neutral. Platforms are not fungible—

accountholders on Truth Social participate in a very

different discussion than those on BlueSky, for

example, just as viewers choose between Fox News

and MSNBC—and individuals have the constitutional

right to choose which platforms to participate in and

which voices to listen to. That right exists under the

First Amendment regardless of who owns a particular

app and whether it can be purportedly influenced by a

foreign government. At stake here is the ability of

Americans to access an information source, and any

legal rationale for governmental interference with

that right opens the door to a broad range of First

Amendment incursions.

Third, upholding this law would set a damaging

precedent for freedom of expression in digital media.

The United States has potentially far more to lose

than it has to gain it by using a blunt force

instrument—like the blanket ban here—to mitigate

5

whatever national security risks that online platforms

may pose.

Affirming this departure from core

American values and constitutional protections will

likely harm the United States’ global standing and

jeopardize some of its foreign policy goals—the very

opposite of Congress’s intended effect. This Court

should reverse.

ARGUMENT

I.

This Court Should Not Defer to the

Government’s Constitutional Analysis

The Court of Appeals upheld the Act because

“[t]he government’s evaluation of the facts, is entitled

to deference.” TikTok, 2024 WL 4996719 at *13. This

reliance on the federal agencies’ campaign against

TikTok, however, fatally undermines that decision.

While our military and intelligence agencies are

sincerely attuned to the detection of national security

threats, they do not have any special insight into how

we should balance the individual rights of free

expression on the one hand and the collective security

risks allegedly posed by a social media app on the

other. On the contrary, these agencies are focused on

security objectives to the exclusion of all other

objectives. Their goal is to maximize the relative

power of the United States and to minimize any

threats posed by our adversarial relationship with

China, and they have little incentive to calibrate the

risk, let alone to do so to constitutional standards.

That is not surprising. Protecting free speech

and open competition in the social media market is not

part of their mandate. As a result, the FBI, the NSA,

6

and the military have in the not-too-distant past used

national security claims to engage in unconstitutional

surveillance, disruption of political movements, and

illegitimate censorship. In all these cases, their

actions were based on their own internal

determination of what constituted a threat to national

security, assessments that were probably made with

the utmost sincerity. But courts have repeatedly

reversed those assessments precisely because those

agencies’ built-in bias could not be squared with

constitutional mandates.2

2 For

example, the Department of Defense insisted that the

publication of the Pentagon Papers by the New York Times

was a threat to national security. New York Times Co. v.

United States, 403 U.S. 713, 714 (1971). The Supreme Court

overruled them. Id.

In other cases, the courts have conducted balancing tests that

weigh the severity of the threat against the constitutional

rights at stake. And outside of the First Amendment context,

in several cases related to the war against terrorism and the

Guantanamo Bay detainees, the military’s handling of

terrorist suspects who clearly raised serious national security

concerns, was moderated by the courts. E.g., Boumediene v.

Bush, 553 U.S. 723, 792 (2008) (concluding that procedures for

reviewing detention of individuals designated as enemy

combatants “effect[ed] an unconstitutional suspension of the

writ” of habeas corpus); Hamdi v. Rumsfeld, 542 U.S. 507, 532–

33 (2004) (plurality op.) (“‘the risk of an erroneous deprivation’

of a detainee’s liberty interest is unacceptably high under the

Government's proposed rule”); see also, e.g., United States v.

U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297, 316–

17 (1972) (holding that “Fourth Amendment freedoms cannot

properly be guaranteed if domestic security surveillances may

be conducted solely within the discretion of the Executive

Branch”). It is not at all uncommon, in other words, for the

7

The appellate court here, however, seemed

oblivious to the checkered record of Congress in the

development of this Act. Its hearings on TikTok were

a political circus that repeatedly sought to

characterize TikTok’s Singaporean CEO as a Chinese

citizen or CCP member – all to reap political capital

from anti-China sentiment. To overcome objections

from Congressional supporters of free speech, House

Republicans had to push the Act into a $95 billion

foreign aid package that had to be “passed as quickly

as possible.” In so doing, Congress offered no reasons

for singling out TikTok from every other social media

platform that collects user data and contends with

foreign influence operations. This is not a weighty

deliberative process that deserves deference.

It is the Supreme Court’s job to provide the

balance between national security claims, populist

political trends, and valued civil liberties, especially if

the security claims may be or in fact are inflated for

political or strategic purposes. The Court of Appeals

shirked that duty. It deferred to the threat assessment

of the Executive Branch and Congress without

conducting any critical substantive analysis of the risk

and without properly performing any balancing test.

That deference is even more questionable given the

factual, legal, and logical weaknesses in the Justice

Department’s argument that TikTok is a major

security threat. See infra.

courts to rule that the threat assessments of the FBI, the

military, or the intelligence agencies do not justify

compromising constitutional rights.

8

II.

Americans Have a Constitutional Right To

Communicate on Their Platform of Choice and

To Receive Information From Foreign Sources

The appellate court’s decision failed to

adequately consider the most critical First

Amendment issue at stake in this case: the right of

Americans to choose TikTok as a means of speaking

and being spoken to (with other Americans as well as

foreigners). The appellate court’s contrary decision is

deeply inimical to the principles of freedom of

expression and liberal democracy.

As this Court has repeatedly recognized, those

principles were founded in a rejection of the prior

historical practice of requiring governmental

permission for a press to operate. As early legal

historians recognized, “’[t]o subject the press to the

restrictive power of a licenser, as was formerly done,

both before and since the revolution, (of 1688) is to

subject all freedom of sentiment to the prejudices of

one man, and make him the arbitrary and infallible

judge of all controverted points in learning, religion,

and government.’” Near v. State of Minnesota ex rel.

Olson, 283 U.S. 697, 733–34 (1931) (quoting

Blackstone); see also id. (quoting Madison on the value

of a free press).

Americans can use the Web, email, other social

media apps like Twitter, BlueSky or Facebook,

streaming video, podcasts, or books to access any

source of information in the world. The exercise of this

right is not and should not be contingent on a

determination by their government that the content

9

they access is not “manipulated by a foreign

adversary.” Some content on any platform could in fact

be manipulated to some degree. The remedy, however,

is not a preemptive ban. Id. at 720 (noting that only

subsequent

punishment

that

falls

within

constitutional limits is “the appropriate remedy”).

Instead, it is for Americans, not their government, to

decide what they see or hear or read.

Implicit in this freedom is faith in the resilience

of democracy and the rationality and sovereignty of

the American people. They can make up their own

minds about what to believe, and they should be

allowed to decide for themselves what ideas or sources

are useful or threaten their security. If an American

citizen has a right to access a website run or

influenced by the Chinese Communist Party, or to

read a book or access a podcast whose producers may

be sympathetic to or even covertly paid by the Chinese

government, why does that citizens not also have a

right to access the TikTok app? See Red Lion

Broadcasting Co. v. Federal Communications

Commission, 395 U.S. 367 (1969) (recognizing that

the First Amendment protects the public’s right to

receive information, not just the broadcaster’s right to

speak). That is particularly true given that, as both

the government and the court have conceded, it is not

run by the CCP, and the alleged national security risk

is purely prospective in nature, based on concerns that

at some point the app might be indirectly influenced

by the Chinese government in the future.

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

307 (1965), this Court invalidated a federal law

10

requiring recipients of “communist political

propaganda” to request its delivery. It did so on the

grounds that the statute sought to impermissibly

“control the flow of ideas to the public” through “a

regime … at war with the ‘uninhibited, robust, and

wide-open’ debate and discussion that are

contemplated by the First Amendment.” Lamont, 381

U.S. at 306-07. Moreover, it did so even though the

law in question did not impose an absolute bar on

receipt of such material. Id. Instead, it concluded, the

requirement that an addressee must request that his

or her mail be delivered in order to receive that mail

would likely mean that “any addressee is likely to feel

some inhibition” about making such a request. Id.

(emphasis added). And that state interference with

the individual’s right to access ideas could not be

squared with the Constitution.

The court of appeals here tried to dismiss

Lamont based on a tangled and counterfactual

argument that contradicts the very rationale for the

Act. The court contended that the Act was not an

effort to “control the flow of ideas to the public,”

TikTok, 2024 WL 4996719 at *18, even though it

repeatedly justified the Act based on the need to

prevent Americans from being exposed to an

adversary government’s ideas. Specifically, the court

wrote: “Across the globe, the PRC seeks to ‘promote

PRC narratives ... and counter other countries’ policies

that threaten the PRC's interests.” Id. at *37.

Additionally, the appellate court asserted that

the law overturned in Lamont “drew a viewpointbased distinction based on whether the government

11

deemed mailed material ‘communist political

propaganda,” but that the Act here does not. Id. at

*35. The court contended that the Act “did not seek to

prevent covert content manipulation by the PRC in

furtherance of any overarching objective of

suppressing (or elevating) certain viewpoints,

messages, or content,” but instead sought “to protect

our national security from the clandestine influence

operations of a designated foreign adversary,

regardless of the possible implications for the mix of

views that may appear on the platform.” Id.

That argument contradicts itself. The whole

point of influencing a communications medium is to

alter “the mix of views” on it, here, by allegedly

promoting views favorable to China’s government

and/or suppressing critical ones. Thus, from the getgo, the entire national security rationale for the ban or

forced divestiture is based on a “viewpoint-based

distinction.” It is an attempt to control (or prevent) the

flow of what the federal government claims might be

Chinese-approved ideas to the American public. (For

the reasons set forth below, whether any purported

content manipulation is “covert” or not is really a red

herring.)

Based on the premise that mere exposure to

these ideas endangers the very fabric of American

institutions (like the arguments in Lamont about

Soviet communist viewpoints), the Act overrides the

choices of tens of millions of Americans regarding

which social media app they are allowed to use. What

logic would justify protecting Lamont’s choice to

receive communist literature advocating the

12

overthrow of America’s capitalist state in 1962, but not

150 million American users’ right to access

entertaining videos on TikTok in 2024? The principle

behind this restriction of their First Amendment

rights could be used to justify a Chinese-style national

Internet filtering regime regulating Americans’ access

to many other foreign websites and online services.

Nevertheless, the appellate court defended the

Act’s intrusion on core First Amendment principles by

claiming that doing so is essential to vindicating those

principles. Put differently, the court argued that it

had to gut the First Amendment in order to preserve

it. Specifically, the appellate court defended banning

TikTok by contending that “[a]t the heart of the First

Amendment lies the principle that each person should

decide for himself or herself the ideas and beliefs

deserving

of

expression,

consideration,

and

adherence.” 2024 WL 4996719 at *17. There are two

problems with this rationale. First, it invokes an

individual’s right to decide which “ideas and beliefs

[are] deserving of...consideration” in support of a law

that would strip American citizens of that right.

Second, it suggests that any editorial selection,

promotion, or suppression of content on a platform is

at odds with the First Amendment, as opposed to

being protected by it.

This Court of course held the contrary in

NetChoice v. Moody, 603 U.S. 707 (2024). All social

media platforms engage in the promotion, selective

display, and suppression of content, and the Supreme

Court has repeatedly recognized that such editorial

control is a protected form of expression. Moody, 603

13

U.S. at 734 (“The government may not, in supposed

pursuit of better expressive balance, alter a private

speaker’s own editorial choices about the mix of speech

it wants to convey”); Miami Herald Pub. Co. v.

Tornillo, 418 U.S. 241, 258 (1974) (“The choice of

material to go into a newspaper…constitute[s] the

exercise of editorial control and judgment. It has yet

to be demonstrated how governmental regulation of

this crucial process can be exercised consistent with

First Amendment guarantees of a free press as they

have evolved to this time”).

Moreover, most users exercise their First

Amendment rights not by publishing things

themselves but by making choices among various

providers of editorial control; i.e., they patronize

different newspapers, different social media

platforms, or different streaming channels. The Act

infringes on that right by telling Americans that they

do not have the right to select a specific information

source. And it restricts this right not because another

government is engaged in content manipulation, but

because our government thinks it could potentially do

so at some indefinite time in the future. In essence,

the government is telling the Court (and its citizens)

to trust it to know what is best, and to privilege its

concerns about potential future harm over the Act’s

actual, direct impact on speech and the constitutional

limits on such government action that have existed for

more than two centuries.

14

III.

The Court of Appeals Relied on An Inaccurate

Assessment of the Purported Threat Scenario

As noted above, the court offered two

justifications for this sweeping and unprecedented

law: first, it asserted that the Act was constitutional

because “a foreign government threatens to distort

free speech” in the United States by “covert

manipulation” of user exposure to the content placed

on one app, TikTok. 3 2024 WL 4996719 at *19.

Second, it contended that concerns about the collection

and potential exfiltration of user data provide an

alternative justification. See infra. Neither warrants

such a substantial retrenchment of core constitutional

rights.

With respect to the first justification, the court’s

reasoning goes, it must infringe on free speech to

preserve it. There are two fundamental problems with

that: first, the evidence of content manipulation is

thin at best. As the decision notes, “the Government

3 Instead,

the Court relies on the Government’s claim “that

ByteDance and TikTok Global have taken action in response

to PRC demands to censor content outside of China” and that

“ByteDance and its TikTok entities ‘have a demonstrated

history of manipulating the content on their platforms,

including at the direction of the PRC.’” Id. But there is no

attempt to calibrate or quantify the scale of the problem. Have

there been one or two incidents of deferring to PRC demands,

or hundreds? Did it occur, if at all, in the early days of

ByteDance’s globalization, and has it since ended, or did it

happen recently (almost certainly, the former)? What kind of

content was involved? Moreover, virtually all platforms have a

demonstrated history of manipulating content on their

platforms, sometimes at the request of governments.

15

acknowledges that it lacks specific intelligence that

shows the PRC has in the past or is now coercing

TikTok into manipulating content in the United

States.” 2024 WL 4996719 at *19. Second, in

America’s diverse media environment, the potential

for content manipulation does not rise to the level of a

national security threat. The government’s (and the

court’s) threat assessment depends upon the idea that

distortions of free speech on one of many platforms in

the United States, if or even when it might happen, is

capable of bringing down the government or, at a

minimum, seriously impeding its military and foreign

policy actions—and that the only possible solution for

that threat is divestiture. But a sufficient link

between potential “content manipulation” on one (and

only one) platform in the United States and

consequences threatening national security is never

really demonstrated by either the government or the

court. It is simply assumed. The Constitution

demands more.

A.

The Dog That Didn’t Bark: The

Government’s Allegations of “Covert

Manipulation” Do Not Hold Up

Central to the appellate court’s justification of a

ban is the idea that Chinese influence on TikTok’s

recommendation algorithm would be “covert,” that is,

invisible and undetectable to users. The court

presented “covert content manipulation” by China as

an act of interference with the free speech of TikTok

users and, in an Orwellian twist, justified one

government’s ban on access to the app as a permissible

way of protecting TikTok users from another

16

government’s potential interference. The fact that

TikTok’s American user base has grown at a record

pace and that those users apparently do not feel

oppressed or limited did not seem to matter to the

court.

That is not the only flaw with this line of

reasoning. First, neither Congress nor the security

agencies have any evidence that the “covert

manipulation of content” they fear is actually

happening on the version of TikTok used by

Americans. This fact by itself raises serious challenges

to sufficiency of the state’s threat scenario. If covert

manipulation of content on TikTok were truly a

powerful weapon in the hands of the Chinese, and if

TikTok/ByteDance were indeed highly susceptible to

implementing

such

manipulation,

the

PRC

government’s failure to use it after seven years of the

apps’ presence in the U.S. is difficult to explain.

Since 2018, the United States has unleashed a

series of hostile policy actions targeting China,

including, inter alia, steep tariffs, bans on the export

of advanced semiconductors, the expulsion of Chinese

telecommunications firms from the U.S. market, and

the approval of $2 billion in arms sales to Taiwan. If

TikTok were indeed a powerful weapon capable of

undermining United States’ actions inimical to

China’s interests, surely the period 2018 – 2024 would

have been the time to use it. Added to this interesting

case of the dog that did not bark, there are thousands

of videos on TikTok that are critical of China or that

raise issues that the PRC does not want aired, like the

status of Uighurs or the independence of Taiwan.

17

The government’s threat assessment in support

of this sweeping and unprecedented law is based

entirely on fears of something that “could happen” but

inexplicably isn’t happening precisely when one would

expect it to. As a result, in its attempt to find a major

security threat, the Justice Department is forced to

posit a contradictory scenario: the content

manipulation could be so “covert” that no one can tell

it is happening, yet so powerfully influential that it

threatens national security. (That scenario also rests

on a host of unsupported assumptions about what

societal effects would occur if such a change did

happen. See infra.)

Consider a parallel. It is well known that the

movie “Top Gun: Maverick” eliminated Japanese and

Taiwanese patches on Maverick’s bomber jacket due

to indirect pressure from the Chinese government.

Chinese censors control which movies are allowed into

its large and lucrative market, and positive references

to Japan and Taiwan would exclude them from the

Chinese market. There is evidence that several other

Hollywood blockbusters have followed the same

pattern. Alex Hollings, 4 times movies changed

because of Chinese pressure, The Mighty. October 30,

2020.

https://www.wearethemighty.com/mightymovies/hollywood-china-censorship/.

When Hollywood movie producers avoid

narratives or characters that would offend the

Chinese government, lest their big budget movies be

excluded from the Chinese market, this is an

unfortunate constraint on their speech, but it is not

undetectable, and it does not rise to the level of a

18

national security threat. Under the court’s logic,

however, the United States government would be

justified in banning these movies in the United States

to save us from China’s “covert content manipulation.”

In other words, the government would protect freedom

of speech by eliminating it. And in the case of TikTok,

it would do so based on the potential for future content

manipulation, rather than proof of actual, current

manipulation unique to TikTok and rising to the level

of a national security threat.

B.

The Court’s Concerns With Covert

Content Manipulation Depend On A

Fundamental Misunderstanding Of

How Social Media Platforms Function

These fears of “covert content manipulation”

betray a fundamental lack of knowledge about social

media, content recommendation algorithms, and the

digital media market generally. They suggest that

indirect PRC interference in TikTok's content

selections could be impossible to detect, let alone

counter, but still, at the same time, have

extraordinary powers to manipulate the minds of

millions of Americans. These conclusions are not

grounded in any social psychological research about

social media effects, which shows that algorithms

detect and respond to preferences, and can amplify or

diminish pre-existing attitudes, but do not create

them.

The appellate court’s decision erroneously

thinks of social media platforms as a broadcast station

or newspaper that conveys one uniform, regulated

19

stream of messages to the user. In fact, there are tens

of millions of content originators on TikTok global, and

most

of

them

are

Americans.

TikTok's

recommendation algorithms do not create content,

they make decisions about which of the millions of

short videos produced by these users another user is

likely to want to see. The TikTok algorithm is

successful precisely because it incorporates the actual

interests of its users as part of its expressive choices.

The stream of videos suggested on the “For you”

channel will thus be different for every user; there is

no broadcast of a party line. Even assuming that the

PRC government were to place pressure on ByteDance

to suppress or promote specific videos, there is no

guarantee of impact. TikTok users respond to what

they are presented by quickly swiping away from

videos that do not immediately catch their attention,

and most TikTok users are not that interested in

political content.

The influence the government and the court

fear could come about in two ways. One would be a

systematic transformation of TikTok into a fully

utilized PRC influence operation. The other would be

a limited set of acts suppressing or promoting a few

selected items of content, in response to pressure from

Beijing.

The first possibility, a sudden and complete

transformation of TikTok into a state-directed

influence operation, is not a serious risk. First, it

would be easily detectable; second and more

importantly, it would undermine the very basis of

20

TikTok’s ability to make money by attracting,

engaging, and retaining users.

If TikTok’s recommendation algorithm is

systematically manipulated to provide material that

the PRC wants users to see, rather than its own

expressive choices and users’ own interests and

preferences, engagement will decline and so will the

number of users. Chinese government-produced

material in English is readily available on websites, in

books, and on television stations. Influencers who

have been secretly paid by the Chinese exist on

YouTube, X, and elsewhere. Of course, those outlets do

not have 170 million Americans following them.

TikTok is popular in the American market because its

algorithm incorporates its users’ own interests. An

algorithm tuned to CCP propaganda will not. If such

an algorithm were implemented, TikTok’s growth and

advertising revenue would decline, users will move to

other platforms, and any alleged messages will fall on

deaf ears. Thus, any potential systematic

manipulation of TikTok’s algorithm for CCP political

purposes would be constrained by commercial

imperatives and user choice.

And any isolated

manipulation would also not rise to the level of a

national security threat.

The recent history of Twitter's transformation

into “X” provides a real-world example of a social

media platform’s transformation. Elon Musk's

acquisition of Twitter enabled him to promote his own

messages and to alter the recommendation algorithms

to be less restrictive of content the previous owners

suppressed. Users and advertisers noticed. Many

21

conservatives welcomed Musk’s changes, many

liberals and progressives hated them. X has suffered

an advertiser boycott, a decline of 8% in U.S. users,

and a decline of 15% worldwide. 4 Its stock market

value dropped from $5.7 billion in 2022 to $673 million

in December 2024.5

The Twitter/X case proves that a major change

in the type and ideology of content promoted by a

social media app will be noticed and will trigger

negative

reactions,

less

engagement,

and

abandonment if the changes do not reflect what

existing users want to see. The idea that TikTok could

undergo a similar transformation at the hands of the

Chinese state without anyone noticing is absurd.

The second possibility, a few acts of suppression

or promotion, is more plausible. But by the same

token, those limited interventions could only have

very limited effects on public opinion in America. once

one situates TikTok in the larger American media

ecosystem. TikTok does not have anything close to a

monopoly on Americans’ attention. Users and

researchers will detect the suppression of content

critical of China and this will trigger comment and

criticism. Manipulating a few items of discourse on

4

Kat TenBarge, X Sees Largest User Exodus Since Musk

Takeover,

https://www.nbcnewyork.com/news/nationalinternational/x-largest-user-exodus-since-elon-musktakeover/5982438

5

Jose Enrico, X Likely to Lose More Users in 2025,

https://www.techtimes.com/articles/308735/20241216/x-likelylose-more-users-2025-post-election-exodus-projected-havecontinuous-ripple-effect.htm

22

TikTok is not the same as manipulating all discourse

on TikTok, much less all public discourse in the rich

and diverse media environment of the United States.

Thus, while the possibility of some form of influence

on any social media platform cannot be categorically

ruled out, the government has drastically inflated the

potential risk, contending that the possibility of

introducing minor biases in the selection of content in

the For You feed poses a threat to the entire country.

Inexplicably, the court dismissed the idea that

the United States government (and any other

domestic source of comment and opinion) can respond

to PRC-inspired content biases with exposure and

critical commentary. Instead, it brushes that idea off

as naive with no real evidence or reasoning. This is

disturbing because the Constitution affirms that the

answer to problematic speech is more speech, not less.

Whitney v. California, 274 U.S. 357, 377 (1927)

(Brandeis, J., concurring) (when the government

objects to speech, “the remedy to be applied is more

speech, not enforced silence”). The concept that false

or manipulative speech can be countered and

criticized is a fundamental premise underlying the

First Amendment. A society that privileges and

protects free speech is more resilient than one that

does not precisely because the affected citizens have

access to diverse, contending ideas. Indeed, videos

posted on TikTok (and on any other media) can be and

often are challenged, criticized, commented upon, and

incorporated into other videos.

In dismissing any appeal to counter-speech as

naive, the court provided an alarming rationale for

23

restricting core free speech rights. If the answer to

false or propagandistic content is not more speech, the

logical next step is that the government should decide

what speech is safe to share—and that courts should,

as in China, allow the government to decide. But that

is just a change in terms of who exerts control, not a

challenge to the propriety of that control, and cannot

be squared with the First Amendment.

In short, the court’s contention that interfering

with Americans’ choices of social media platforms

“protects free expression” combines hostility to free

expression with a factually flawed analysis. The court

assumed that TikTok’s users are a captive audience

with no agency, and that only government action can

protect their choice. It presumed that the potentially

biased selection of a few items of content on one of

many information sources will rise to the level of a

national security concern warranting infringement on

fundamental

constitutional

rights.

These

assumptions, critical to its whole argument,

demonstrate that the court simply did not understand

the dynamics of free speech in a free and open social

media market. Free expression hinges on the ability of

users to vote with their feet in the adoption of apps,

publications, and groups. Americans have that choice

with respect to TikTok, regardless of who owns it or

how much external pressure it is subjected to.

Interfering with that right interferes with their

exercise of free expression.

24

C.

The Appellate Court’s Reliance on

Foreign Ownership Limits in Radio Was

Also Wrong

The appellate court decision asserted that the

Act’s “emphasis on ownership and control follows a

longstanding approach to counter foreign government

control of communication media in the United States.”

2024 WL 4996719 at *20. That conclusion depends on

a fundamental misunderstanding of United States

regulatory practice and legal precedents. To begin

with, all the law and regulatory precedents apply

exclusively to radio frequency ownership, not to

“communications media” generally. (Of course, radio

licenses are not involved in this case.) Outside of that

context, United States law and regulation has favored

unlimited access to foreign content and openness to

foreign investment, particularly since the advent of

the Internet.

Legal ownership restrictions on radio

frequencies date back to the 1912 Radio Act, when

radio was primarily a means of telegraphic

communication, particularly important for navies.

The government’s security interest was rooted in its

concern

about

ship-shore

and

ship-ship

communications along United States coasts and the

possible use of radio telegraphy by spies and foreign

navies.6 Accordingly, the U.S. Navy from 1906 - 1909

6 Sidak dates the origins of these concerns to the use of wireless

communications by the Japanese Navy in the 1904 RussoJapanese War. J. Gregory Sidak, Foreign Investment in

Telecommunications. Working Paper Prepared for the

25

advocated for a military monopoly on all radio

frequencies in the U.S., an overreach that was,

fortunately, resisted by civil society and Congress.

At the behest of the Navy, however, the 1912

Act did restrict the award of radio licenses to

foreigners. Donna M. DiPaolo, Executive Research

Project,

Foreign

Ownership

Restrictions

in

Communications and “Cultural” Trade: National

Security Implications. Thesis, The Industrial College

of

the

Armed

Forces,

https://apps.dtic.mil/sti/tr/pdf/ADA314840.pdf.

The

target was not “foreign propaganda,” however, but the

prevention of “alien activities against the U.S.

Government during wartime”; i.e., the use of radio to

plan and coordinate attacks. Id. In line with this

rationale, the Act allowed the government to seize

radio stations during wartime (which it did during

World War I). Unlike a software app distributed over

the Internet, the possession of radio licenses would

have given foreign powers control of a communications

infrastructure in the United States. The more liberal

licensing conditions of the 1912 Act, which excluded

foreign ownership but allowed easy access to licenses

for civilians, paved the way for American leadership

in broadcasting and other civilian applications of radio

technology.

The subsequent 1927 Radio Act was motivated

primarily by an attempt to regulate the competition

for radio frequencies generated by the rise of

commercial broadcasting. It retained the licensing

American Enterprise Institute for Public Policy Research,

presented November 1995.

26

restrictions of the 1912 Act, which in turn were

tightened a bit by the Communications Act of 1934.7

The motive, however, was less about foreign content

and more about the limited number of broadcast

frequencies and the fear that foreign owners might

dominate the industry. Control of a radio frequency by

a foreign company necessarily excludes an American

company from holding the same frequency, whereas

the offering of a software app that provides content via

the Internet does not exclude any other company,

foreign or domestic, from offering a competing app.

There is no exclusive occupation of a scarce resource.

In 1958, a court challenge pushed the FCC to

narrow its view of the national security interest in

radio in a way that mirrored the original focus on alien

activities against the U.S. government during

wartime. Noe v. FCC, 260 F.2d 739 (D.C. Cir. 1958).

Relying on the legislative history of the Radio Act of

1927, the court rejected contentions that section 310

was designed to block “foreign influence” in U.S.

broadcast content. In 1974, Congress revised section

310, limiting the section's applicability to common

carrier, broadcast and aeronautical radio services,

areas which at that time were seen as most directly

affecting national security.

Thus, far from having a “long-standing” policy

of content-based exclusions of foreign owners in

communications, the limits on broadcast ownership

have been narrowly limited to concerns about alien

7 Holding companies had been used to get around the restrictions,

and this “loophole“ was closed.

27

control of radio frequencies in times of conflict or war.

Cable

television,

direct

broadcast

satellite,

subscription television, streaming video, websites, and

software applications are not and never have been

subject to foreign ownership restrictions in the United

States. Even in broadcasting, the FCC over a decade

ago decided to permit, on a case-by-case basis, greater

foreign ownership of US broadcast stations, resulting

in instances where 100% foreign ownership of U.S.

broadcast stations have been permitted. Many large

U.S. broadcast companies now have foreign ownership

in excess of the 25% allowed by Section 310(b)(4) of the

Communications Act. Most importantly, there have

been no ownership restrictions or access restrictions

on websites or other content that can be accessed over

the Internet. Contrary to the court’s conclusion that

the Act was consistent with prior regulations, the

TikTok ban is a radical departure from prior U.S.

policies regarding Internet freedom, access to foreign

content, and the free flow of data.

D.

The Threat Of Data And Espionage Also

Does Not Warrant Disregarding The

Constitution’s Bar On Government

Regulation Of Speech

As amicus has explained elsewhere, an

extensive analysis of the alleged risks posed by the

potential for Chinese government access to the data

generated by TikTok users does not substantiate those

concerns. See, e.g., Mueller and Farhat, “TikTok and

U.S. National Security,” Georgia Tech Internet

Governance Project, Jan. 2023, Section 3 (p. 18-22).

https://www.internetgovernance.org/research/tiktok-

28

and-us-national-security/. (Indeed, both American

Presidential candidates in 2024 had TikTok accounts,

apparently not concerned about yielding privileged or

damaging information to the Chinese.)

Specifically, as amicus has explained, TikTok’s

data collection practices are consistent with those of

other social media platforms, and whether a foreign

power’s access to this data could pose a national

security risk depends entirely on who the user is. Id.

There is a plausible risk, in other words, only if the

TikTok user is an individual whose actions or

locations can have an impact on US national security,

and that user participates in TikTok in a way that

allows the person to be identified and tracked, or

exposes valuable, confidential information about the

U.S. government or its military and intelligence

agencies. Id. To monitor persons of interest on TikTok

(and other social media), the Chinese government

need not have any special legal or political authority

over TikTok. Id. To the contrary, as amicus has

explained, whatever intelligence value a record of

TikTok usage has can for the most part be harvested

without any cooperation from the company, and that

the same risks apply to all social media. Id.

The appellate court seemed not to understand

the simple fact that most of the user activity on TikTok

– and on all social media – is public and can be

gathered and analyzed simply by subscribing to and

monitoring the service or employing tools to “scrape”

the public data. Id. Indeed, this is how the Chinese

already monitor dissidents and persons of interest in

other countries. Id. This is also why laws and

29

organizational policies already exist to prevent people

in sensitive positions from having public profiles on

social media. Sensibly, these restrictions apply to all

social media, not just TikTok, because all of them can

reveal information about user activity, locations, likes,

comments and connections. There is nothing special

about TikTok in this regard. Any usage of social media

in the wrong way by people in sensitive positions poses

risks. There is also a risk that this data can be exposed

through a breach or sold. Worldwide, twenty-nine

million Facebook accounts were breached in 2018. A

security incident compromised 110.8 million Google

accounts and exposed password reset links, 2FA codes,

and employee credentials. Most of those risks affect

individual privacy, not national security, however.

Intelligence operatives and military leaders are not

stupid enough to post videos of advanced weapons

systems, secret plans, troop movements or passwords

on TikTok or YouTube.

Mitigations short of a ban, such as policies to

prevent military personnel, intelligence agency

employees, and government employees from using

social media or using it in the wrong way, are more

appropriate, more effective, and less constitutionally

problematic. The U.S. law limiting the sale of location

data by data brokers, which allowed adversarial

governments and practically anyone else to buy the

kind of data, is another constructive step. Finally,

general data privacy laws that prevent companies

from giving private user data to anyone and penalize

them for doing so are a far more constitutionally

calibrated alternative.

30

IV.

The Manner In Which the United States

Regulates Speech Domestically Has Broad

Ramifications For Foreign Policy

Finally, the manner in which Congress chooses

to regulate foreign-owned online platforms has broad

ramifications for foreign policy.

To begin, the United States has consistently

advocated for free speech both domestically and

abroad. Even (or especially) when the government

invokes national security concerns as a basis for

limiting speech, the Supreme Court has long upheld

the full scope of First Amendment protections. That

is, in such circumstances, the government still “carries

a heavy burden of showing justification for the

imposition of such a restraint.” New York Times Co.

v. United States, 403 U.S. 713, 714 (1971). As Justice

Holmes once observed: “[A]s against dangers peculiar

to war, as against others, the principle of the right to

free speech is always the same. It is only the present

danger of immediate evil or an intent to bring it about

that warrants Congress in setting a limit to the

expression of opinion where private rights are not

concerned.” Abrams v. United States, 250 U.S. 616,

628 (1919) (Holmes, J., dissenting).

Moreover, the costs of such regulations are not

limited to the immediate constitutional ones. The

perception of the United States as a beacon of freedom

will be diminished—and its foreign policy less

successful—if the government simply bans an

expressive platform without courts requiring a

sufficiently exacting showing by the government that

31

such a ban is necessary and that other, less restrictive

solutions are not adequate. Imposing a flat ban on

speech is more in line with an authoritarian model of

government whose standards and values are

markedly different from the United States. Take, for

example, China’s extraordinary levels of censorship,

which stand in stark contrast to the United States’

commitment to the First Amendment.8 And history

has not been kind to those rare instances in which the

United States has used broad national security

concerns to justify a departure from its founding

principles of liberty and freedom for all. See

Korematsu v. United States, 65 S. Ct. 193 (1944).

In imposing a flat ban, the United States has

more to lose than moral high ground. Such bans may

also invite significant retaliation from important

trade partners that jeopardize national security in

even more profound ways than the online platform

itself. Moreover, permitting Congress to institute a

blanket ban on online platforms from other countries

risks setting a dangerous precedent globally. Will

other countries follow suit and eschew diplomacy in

favor of siloing their citizens from foreign products?

And, of course, endorsing such a policy abroad risks a

trickle-down effect on domestic policy.

In sum, the United States has potentially far

more to lose than it has to gain if it unnecessarily uses

a blunt force instrument—like a ban—to mitigate the

unique national security risks that online platforms

8

Freedom on the Net 2021, FREEDOM HOUSE (visited Dec. 27,

2024),

https://freedomhouse.org/country/china/freedomnet/2021.

32

may pose. This Court should not depart from core

American values and constitutional protections.

Doing so will likely harm the United States’ global

standing and jeopardize foreign policy—the very

opposite of Congress’s intended effect.

CONCLUSION

For these reasons, the Court should find the Act

unconstitutional.

Respectfully submitted,

Anne M. Voigts

Counsel of Record

Pillsbury Winthrop Shaw Pittman

2550 Hanover Street

Palo Alto, CA 94304-1115

(650) 233-4075

anne.voigts@pillsburylaw.com

Counsel for Amicus Curiae