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

Supreme Court briefDec 27, 2024

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Nos. 24-656, 24-657

IN THE

Supreme Court of the United States

TIKTOK INC., et al.,

Petitioners,

MERRICK B. GARLAND, in his Official Capacity as

Attorney General of the United States,

Respondent.

BRIAN FIREBAUGH., et al.,

Petitioners,

MERRICK B. GARLAND, in his Official Capacity as

Attorney General of the United States,

Respondent.

On Writs of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF OF THE KNIGHT FIRST AMENDMENT

INSTITUTE AT COLUMBIA UNIVERSITY,

FREE PRESS, AND PEN AMERICAN CENTER

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

Jameel Jaffer

Counsel of Record

Ramya Krishnan

Xiangnong Wang

Alex Abdo

Knight First Amendment Institute at

Columbia University

475 Riverside Drive, Suite 302

New York, NY 10115

(646) 745-8500

jameel.jaffer@knightcolumbia.org

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ........................ ii

INTEREST OF AMICI CURIAE ............................. 1

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

ARGUMENT ............................................................. 4

The Act implicates the First Amendment

because it restricts the right of Americans

to access ideas, information, and media

from abroad. .............................................. 4

II.

The Court should scrutinize the Act

especially closely because it recalls

practices that have long been associated

with repressive governments. .................. 9

III.

The Act is subject to strict scrutiny

because it is viewpoint-motivated and its

effect is to broadly restrict protected

expression online. ................................... 22

IV.

The Act fails First Amendment scrutiny

because suppressing speech is not a

permissible means of countering foreign

content manipulation, and because the

government could achieve its other goals

with less restrictive means. ................... 28

CONCLUSION........................................................ 36

TABLE OF CITED AUTHORITIES

Cases

Abourezk v. Reagan, 785 F.2d 1043

(D.C. Cir. 1986) .................................................. 17

Alario v. Knudsen, 704 F. Supp. 3d

1061 (D. Mont. 2023) ......................................... 34

Ashcroft v. ACLU, 542 U.S. 656 (2004)............ 30, 31

Brown v. Hartlage, 456 U.S. 45 (1982) .................. 29

Citizens United v. Fed. Election

Comm’n, 558 U.S. 310 (2010)............................ 30

City of Ladue v. Gilleo, 512 U.S. 43

(1994) ..................................................... 23, 27, 34

Kalantari v. NITV, Inc., 352 F.3d 1202

(9th Cir. 2003).................................................... 20

Kleindienst v. Mandel, 408 U.S. 753

(1972) ............................................................. 7, 32

Lamont v. Postmaster General, 381

U.S. 301 (1965) ............................ 6, 21, 22, 31, 32

Lovell v. City of Griffin, 303 U.S. 444

(1938) ................................................................. 23

Martin v. City of Struthers, 319 U.S.

141 (1943) ............................................................ 5

Meese v. Keene, 481 U.S. 465 (1987) .................... 6, 7

Moody v. NetChoice, LLC, 603 U.S.

707 (2024) ................................ 7, 9, 26, 27, 29, 33

Nat’l Rifle Ass’n of Am. v. Vullo, 602

U.S. 175 (2024) .................................................. 26

Packingham v. North Carolina, 582

U.S. 98 (2017) .................................................. 8, 9

Reed v. Town of Gilbert, 576 U.S. 155

(2015) ................................................................. 23

Reno v. ACLU, 521 U.S. 844 (1997) ................... 7, 27

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

552 (2011) .......................................................... 35

Stanley v. Georgia, 394 U.S. 557

(1969) ................................................................... 5

The Nation v. Haig, No. 81-2988 (D.

Mass. Feb. 12, 1980) .......................................... 19

Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622 (1994) .................................................. 33

United States v. Alvarez, 567 U.S. 709

(2012) ........................................................... 28, 30

United States v. Playboy Ent. Grp.,

Inc., 529 U.S. 803 (2000) ................................... 30

iii

Ward v. Rock Against Racism, 491

U.S. 781 (1989) .................................................. 34

Statutes

Pub. L. No. 100-418, 102 Stat. 1107

(1988) ................................................................. 20

Pub. L. No. 103–236, 108 Stat. 382

(1994) ................................................................. 20

Pub. L. No. 118-50, Div. I, 138 Stat.

960 (2024) .......................................................... 35

Pub. L. No. 65-91, 40 Stat. 411 (1917) ................... 18

Pub. L. No. 82-414, 66 Stat. 163 (1952) ................. 13

Pub. L. No. 82-414, 66 Stat. 187 (1952) ................. 14

Pub. L. No. 87-793, 76 Stat. 832 (1962) ................. 21

Pub. L. No. 95-105, 91 Stat. 844 (1977) ................. 17

Other Authorities

132 Cong. Rec. 6550 (1986) .................................... 22

170 Cong. Rec. S2963 (Apr. 23, 2024) .............. 25, 26

98 Cong. Rec. 8084 (1952) ...................................... 14

Aaron Gregg & Eva Dou, Apple Pulls

WhatsApp, Threads and Signal

from App Store in China, Wash.

Post (Apr. 19, 2024),

https://perma.cc/6Z63-YZ6U ............................. 11

Anna Gordon, Here’s All the Countries

With TikTok Bans as Platform’s

Future in U.S. Hangs in Balance,

Time (Apr. 25, 2024),

https://perma.cc/35ZD-J4UE............................. 12

Burt Neuborne & Steven R. Shapiro,

The Nylon Curtain: America's

National Border and the Free Flow

of Ideas, 26 Wm. & Mary L. Rev.

719 (1985) .................................................... 18, 19

Christopher A. Casery, Dianne E.

Rennack & Jennifer K. Elsea,

Cong. Rsch. Serv., The

International Emergency Economic

Powers Act: Origins, Evolution, and

Use (2024), https://perma.cc/X9GCU9A4 .................................................................. 19

Claire Fu & Daisuke Wakabayashi,

There Is No TikTok in China, but

There Is Douyin. Here’s What It Is,

N.Y. Times (Apr. 25, 2024),

https://perma.cc/QH2B-7MFV .......................... 12

Clifford D. May, Washington Talk; A

McCarthy Era Act, Used to Block

Visits by Foreigners, Is About to

Fall, N.Y. Times (June 1, 1989),

https://perma.cc/FQH5-Q8QB ........................... 16

Comm. to Protect Journalists, CPJ

Calls on Taliban to Drop Plans to

Restrict Facebook Access in

Afghanistan (Apr. 8, 2024),

https://perma.cc/7SAL-F8YT ............................ 12

Dahlia Scheindlin, Netanyahu’s

Assault on Democracy, Haaretz

(Aug. 8, 2023),

https://perma.cc/7KLB-CH93 ............................ 11

David Margolick, Bar Panel Urges

End of Law that Limits Entry Into

U.S., N.Y. Times (Apr. 4, 1984),

https://perma.cc/P7FW-XXDC .......................... 15

Deportation Bid Based on McCarthyEra Law, L.A. Times (Jan. 29,

1987), https://perma.cc/QM6D7Y98 ................................................................... 15

Eugene Volokh, When Are Lies

Constitutionally Protected?, Knight

First Amend. Inst. (Oct. 19, 2022),

https://perma.cc/4PWU-FWUT ......................... 29

Exec. Order No. 14,117, 89 Fed. Reg.

15421 (Feb. 28, 2024) ........................................ 35

Freedom on the Net 2024: China,

Freedom House,

https://perma.cc/7SW2-CRMT .......................... 10

Freedom on the Net 2024: Iran,

Freedom House,

https://perma.cc/7DPU-S5BS ...................... 11, 12

Freedom on the Net 2024: Jordan,

Freedom House,

https://perma.cc/49SP-APSY ............................. 12

Freedom on the Net 2024: Kyrgyzstan,

Freedom House,

https://perma.cc/L9NC-FQD3 ........................... 12

Freedom on the Net 2024: Russia,

Freedom House,

https://perma.cc/WKU5-EKVW ........................ 10

Freedom on the Net 2024: Saudi

Arabia, Freedom House,

https://perma.cc/XEV3-87T7 ............................. 11

Freedom on the Net 2024: Uzbekistan,

Freedom House,

https://perma.cc/M3EE-6VYP ........................... 13

Government Exclusion of Foreign

Political Propaganda, 68 Harv. L.

Rev. 1393 (1955) ................................................ 20

H.R. Rep. No. 100–40 (1987) .................................. 20

H.R. Rep. No. 103–482 (1994) ................................ 20

vii

H.R. Rep. No. 118-417 (2024) ................................. 25

Jarred O. Taylor III, Information

Wants to be Free (of Sanctions):

Why the President Cannot Prohibit

Foreign Access to Social Media

Under U.S. Export Cannot Prohibit

Foreign Access to Social Media

Under U.S. Export Regulations, 54

Wm. & Mary L. Rev. 297 (2012) ....................... 19

John A. Scanlan, Aliens in the

Marketplace of Ideas: The

Government, the Academy, and the

McCarran-Walter Act, 66 Tex. L.

Rev. 1481 (1988) ................................................ 15

Llazar Semini, Albanian Prime

Minister Says TikTok Ban was Not

a ‘Rushed Reaction to a Single

Incident’, Assoc. Press (Dec. 23,

2024), https://perma.cc/TPP4-3FAJ .................. 13

Murray L. Schwartz & James C. N.

Paul, Foreign Communist

Propaganda in the Mails: A Report

on Some Problems of Federal

Censorship, 107 U. Pa. L. Rev. 621

(1959) ................................................................. 21

Ngouda Dione, Senegal Cuts Internet

Again Amid Widening Crackdown

on Dissent, Reuters (Feb. 13, 2024),

https://perma.cc/SRV4-ZKM9 ........................... 12

viii

Nikki McCann Ramirez, Lawmakers

Admit They Want to Ban TikTok

over Pro-Palestinian Content,

Rolling Stone (May 6, 2024),

https://perma.cc/RVJ8-9CK7 ............................ 26

Pelosi Statement on House Passage of

Protecting Americans from Foreign

Adversary Controlled Applications

Act, Congresswoman Nancy Pelosi

(Mar. 13, 2024),

https://perma.cc/JAV6-Y9TJ ............................. 25

Prem Thakker & Akela Lacy, In No

Labels Call, Josh Gottheimer, Mike

Lawler, and University Trustees

Agree: FBI Should Investigate

Campus Protests, The Intercept

(May 4, 2024),

https://perma.cc/EUC5-7F8L ............................ 26

Report Prepared by an Ad Hoc

Interagency Committee, Office of

the Historian, U.S. Dept. of State

(Jun. 15, 1960),

https://perma.cc/Z4MM-GWZQ ......................... 21

Reporters Without Borders, Modi

Ramps Up Online Censorship in

India (Apr. 9, 2023),

https://perma.cc/43HV-9N9N ............................ 12

Representative Mike Gallagher, Why

Do Young Americans Support

Hamas? Look at TikTok., The Free

Press (Nov. 1, 2023),

https://perma.cc/QGU6-2L65 ............................ 24

Robert McMahon, Russia Is Censoring

News on the War in Ukraine.

Foreign Media Are Trying to Get

Around That, Council on Foreign

Rels. (Mar. 18, 2022),

https://perma.cc/H7BU-BXZ3 ........................... 10

Rochelle B. Price, Jamming and the

Law of International

Communications, 5 Mich. J. Int’l L.

391 (1984) .......................................................... 10

Sidney Blumenthal, Congress Lifts

Political-Beliefs Bar to Aliens

Under McCarran-Walter Act,

Wash. Post (Dec. 17, 1987),

https://perma.cc/5ETL-5W5V............................ 14

Statement of Arthur C. Helton,

Exclusion and Deportation

Amendments of 1983: Hearing

Before the Subcommittee on

Immigration, Refugees, and

International Law of the

Committee on the Judiciary, House

of Representatives, Ninety-Eighth

Congress, Second Session, on H.R.

4509 and H.R. 5227 (June 28,

1984), https://perma.cc/C77SMYTR ................................................................. 15

Steven A. Holmes, Legislation Eases

Limits on Aliens, N.Y. Times (Feb.

2, 1990), https://perma.cc/Z2DVB3RS ............................................................ 15, 17

Steven R. Shapiro, Ideological

Exclusions: Closing the Border to

Political Dissidents, 100 Harv. L.

Rev. 930 (1987) ............................................ 15, 17

Testimony of Larry McMurtry, Free

Trade in Ideas: Hearings Before

the Subcommittee on Courts,

Intellectual Property, and the

Administration of Justice of the

Committee on the Judiciary, House

of Representatives, One Hundred

First Congress, First Session (May

3, 1989), https://perma.cc/7DNHW9HR ................................................................. 17

Tia Goldenberg & Jon Gambrell,

Israel Orders Al Jazeera to Close

Its Local Operation and Seizes

Some of Its Equipment, Associated

Press (May 5, 2024),

https://perma.cc/ST7A-BEA6 ............................ 11

Transcript of Chairman Gallagher’s

Press Conference Response to

TikTok Intimidation Campaign

Against U.S. Users (Mar. 7, 2024),

https://perma.cc/7VL5-UTCH ........................... 24

U.S. Dep’t of State, Democratic

People’s Republic of Korea 2023

Human Rights Report,

https://perma.cc/MV6V-MLNY ......................... 12

U.S. Dep’t of State, Nepal 2023

Human Rights Report,

https://perma.cc/5XU5-LUHQ .......................... 12

U.S. Dep’t of State, Somalia 2023

Human Rights Report,

https://perma.cc/4JAQ-H2ZB ............................ 13

xii

INTEREST OF AMICI CURIAE 1

The Knight First Amendment Institute at

Columbia University is a non-partisan, not-forprofit organization that defends the freedoms of

speech and the press in the digital age through

strategic litigation, research, and public education.

The Institute promotes a system of free expression

that is open and inclusive, that broadens and

elevates public discourse, and that fosters creativity,

accountability, and effective self-government.

Free Press is a non-partisan, non-profit,

nationwide media and technology advocacy

organization. It believes that positive social change,

racial justice, and meaningful engagement in public

life require equitable access to open channels of

communication, diverse and independent ownership

of media platforms, and journalism that holds

leaders accountable. For nearly two decades, Free

Press has engaged in litigation, congressional

advocacy, and administrative agency proceedings to

advance these goals, including freedom of expression

and freedom of the press.

PEN American Center (“PEN America”) is a nonpartisan, not-for-profit organization dedicated to

creative expression and the liberties that make it

possible. Founded in 1922, PEN America engages in

advocacy, research, and public programming related

1 No counsel for any party authored this brief in whole or in

part, and no person or entity other than amici or their counsel

made a monetary contribution to fund the preparation or

submission of the brief. Sup. Ct. R. 37.6.

to free expression in the United States and around

the world. PEN America works to ensure that people

everywhere have the freedom to create literature, to

convey information and ideas, express their views,

and access the views, ideas, and literatures of

others. PEN America has engaged in research and

advocacy related to free expression on social media

platforms and is committed to fostering a healthy

climate for public discourse online.

SUMMARY OF ARGUMENT

This case concerns the constitutionality of the

Protecting Americans from Foreign Adversary

Controlled Applications Act, Pub. L. No. 118-50,

Div. H, 138 Stat. 895, 955–60 (2024) (“the Act”). The

Act will functionally ban Americans from accessing

the social media platform TikTok, effective January

19, 2025, unless TikTok Inc.’s parent company,

ByteDance Inc., sells the U.S. subsidiary before

then.

For reasons explained by Petitioners and other

amici, the Act violates the First Amendment because

it will unjustifiably restrict some 170 million

Americans from using the media platform of their

choosing to share their own speech, to receive the

speech of others (including other Americans), and to

engage with the expressive communities they have

sought out and that are meaningful to them. Amici

the Knight Institute, PEN America, and Free Press

submit this brief to emphasize that the Act also

violates the First Amendment because it will

unjustifiably restrict Americans from accessing

foreign speech, including ByteDance’s input into

TikTok’s recommendation algorithm, which reflects

the platform’s editorial judgments and helps

determine which content is highlighted for the

platform’s users. Indeed, insofar as the ban is

intended to prevent Americans from accessing ideas,

information, and media from abroad, it recalls

practices that have long been associated with the

world’s most repressive regimes.

This brief makes four points.

First, the Act implicates the First Amendment

because it restricts U.S. citizens and residents from

accessing ideas, information, and media from

abroad. The court below properly rejected the

government’s argument that the ban does not

implicate the First Amendment at all.

Second, the Court should view the Act especially

skeptically because it recalls practices that have

long been associated with repressive governments.

For good reason, the United States’ own past efforts

at curtailing citizens’ access to speech from abroad

are remembered now with embarrassment and

shame. Thus, our own history and the experiences of

other societies supply ample reason to approach

restrictions on access to foreign media with

suspicion.

Third, the Act should be subjected to strict

scrutiny because it operates as a prior restraint, is

motivated by disagreement with particular

viewpoints, and forecloses an entire medium of

expression online. The concurrence below was wrong

to conclude that the Act should be subjected to only

intermediate scrutiny because the law does not

target any specific viewpoint or category of content.

The record is clear that legislators acted out of

concern about specific viewpoints and categories of

content, and the government has expressed some of

the same concerns in its defense of the law. In

addition, the law’s viewpoint- and contentdiscriminatory nature is only one of multiple reasons

to subject this law to strict scrutiny.

Finally, the Act cannot survive any form of

heightened scrutiny. The government has no

legitimate interest in banning Americans from

accessing foreign speech—even if the speech

comprises foreign propaganda or may at some point

reflect foreign manipulation. And while the

government has a legitimate interest in protecting

Americans from covert propaganda and in

safeguarding Americans’ personal data, these goals

can readily be achieved with less restrictive means.

Upholding the Act would do profound and lasting

damage to the First Amendment and the values it

embodies. Amici respectfully urge the Court to grant

the relief that Petitioners request.

ARGUMENT

The Act implicates the First Amendment

because it restricts the right of

Americans to access ideas, information,

and media from abroad.

The D.C. Circuit correctly recognized that the Act

triggers First Amendment scrutiny, and it properly

rejected the government’s “ambitious” argument

that the Act does not implicate the First Amendment

at all. C.A. Op. 25–27. As the court explained, “the

Act imposes a disproportionate burden on TikTok,

an entity engaged in expressive activity,” and

singles out that “expressive activity by indirectly

subjecting TikTok—and so far, only TikTok—to the

divestiture requirement.” Id. at 26. More than that,

however, the Act implicates the First Amendment

rights of TikTok’s 170 million American users, who

use the platform to express themselves, get their

news, and connect with the people and communities

they care about.

It is “well established” that the First Amendment

“protects the right to receive information and ideas.”

Stanley v. Georgia, 394 U.S. 557, 564 (1969). This

Court first recognized that the public has a right to

receive information more than 80 years ago in

Martin v. City of Struthers, 319 U.S. 141 (1943). In

that case, the Court invalidated a local ordinance

that forbade persons who were “distributing

handbills, circulars or other advertisements” from

ringing doorbells or knocking on doors. Id. at 142.

While the Court recognized that the ordinance was

aimed at “the protection of the householders from

annoyance,” it held that a blanket ban failed to

accord “due respect for the constitutional rights of

those desiring to distribute literature and those

desiring to receive it.” Id. at 144, 149 (emphasis

added). The Court indicated that the right to receive

information was central to its holding, noting that

“[f]reedom to distribute information to every citizen

wherever he desires to receive it is so clearly vital to

the preservation of a free society.” Id. at 146–47.

This right to receive information extends to

ideas, information, and media from abroad. In

Lamont v. Postmaster General, this Court struck

down a law requiring individuals who wanted to

receive material that the government deemed

communist propaganda and that was “printed or

otherwise prepared in a foreign country” to notify

the post office in advance. 381 U.S. 301, 302 (1965)

(citation omitted). The Court explained that this

obligation unconstitutionally burdened recipients’

First Amendment right to receive information—a

right not diluted by the material’s foreign origin. Id.

at 307. Notably, the law did not bar individuals from

accessing the relevant foreign speech altogether.

But the Court nonetheless struck it down because it

burdened willing listeners with an obligation that

was “almost certain to have a deterrent effect” on

their ability to receive the proscribed material,

thereby interfering with the “‘uninhibited, robust,

and

wide-open’

debate

and

discussion . . .

contemplated by the First Amendment.” Id. (citation

omitted) .

Since Lamont, this Court has repeatedly

reaffirmed Americans’ First Amendment right to

access speech from foreign sources. In Meese v.

Keene, the Court considered a First Amendment

challenge to a law requiring the plaintiff to label

three films he wished to exhibit as “political

propaganda” because they were distributed by a

Canadian government agency. 481 U.S. 465, 473

(1987). The Court rejected the plaintiff’s claim only

because it determined that, unlike in Lamont, the

challenged statute “d[id] not pose any obstacle to

[plaintiff’s] access to the [foreign] materials.” Id. at

480 (emphasis added). Likewise, in Kleindienst v.

Mandel, the Court reasoned that the government’s

exclusion of a Belgian journalist from the United

States implicated the First Amendment rights of

U.S. listeners who sought to meet with him. 408 U.S.

753, 764–65 (1972). Although the Court ultimately

rejected the plaintiffs’ First Amendment challenge

because of Congress’s “plenary power to make rules

for the admission of [noncitizens],” id. at 766

(citation omitted), it nevertheless reaffirmed that

the “First Amendment right to receive information

and ideas” extends to information and ideas from

abroad, id. at 762 (cleaned up) .

The upshot of these cases is that the First

Amendment protects Americans’ right to access,

engage with, and disseminate foreign speech and

ideas, just as it protects their right to receive

“domestic” information.

These protections encompass the right to engage

with, and on, foreign-owned social media platforms.

The First Amendment protects online speech just as

robustly as any other speech. See Reno v. ACLU, 521

U.S. 844, 870 (1997) (“[O]ur cases provide no basis

for qualifying the level of First Amendment scrutiny

that should be applied to [online speech].”). Just this

past term, this Court confirmed that “settled

principles about freedom of expression” apply to

social media and other new technologies, just as they

do to older forms of media. Moody v. NetChoice, LLC,

603 U.S. 707, 733–34 (2024). Thus, where “socialmedia platforms create expressive products, they

receive the First Amendment’s protection.” Id. at

716.

Indeed, as this Court noted in Packingham v.

North Carolina, social media platforms are now “the

most important places . . . for the exchange of views.”

582 U.S. 98, 104 (2017). There, the Court considered

a state law that forbade registered sex offenders

from accessing social media websites on which

minors may have accounts. Id. at 101, 106–07. The

Court recognized that use of social media is vital to

the modern-day exercise of multiple First

Amendment rights:

Social

media

offers

relatively

unlimited, low-cost capacity for

communication of all kinds. On

Facebook, for example, users can

debate religion and politics with their

friends and neighbors or share vacation

photos. On LinkedIn, users can look for

work, advertise for employees, or

review tips on entrepreneurship. And

on Twitter, users can petition their

elected representatives and otherwise

engage with them in a direct

manner. . . . In short, social media

users employ these websites to engage

in a wide array of protected First

Amendment activity on topics as

diverse as human thought.

Id. at 104–05 (cleaned up). After emphasizing

the importance of social media to modern public

discourse, the Court invalidated the ban, finding it

was not narrowly tailored to the state’s interest in

protecting minors. See id. at 105–06.

Against this background, it is plain that the Act

must be subject to First Amendment scrutiny. By

preventing access to TikTok, the Act precludes

Americans from posting content and viewing content

posted by others on that platform. More broadly, it

prevents Americans from participating in the

expressive communities of their choosing. This is

true whether the Act is cast as a ban or as a

divestiture requirement. Because divestiture would

require TikTok to change ownership, it would bar

Americans from engaging with the compilation of

content presented by TikTok’s current owners. The

Act therefore “foreclose[s] [Americans’] access” to

media they would otherwise seek out, burdening the

“legitimate exercise of [their] First Amendment

rights.” Id. at 108; see also Moody, 603 U.S. at 731.

II.

The Court should scrutinize the Act

especially closely because it recalls

practices that have long been associated

with repressive governments.

The Court should analyze the Act with particular

care because restricting access to foreign media to

protect against purported foreign manipulation is a

practice that has long been associated with

repressive regimes.

Before the internet, shortwave radio technology

enabled people to receive timely information from

abroad. Foreign radio broadcasts became a threat to

totalitarian governments seeking to control the

information available to their citizens. After World

War II, the Soviet Union began jamming shortwave

transmissions to deny its citizens access to

potentially subversive information and ideas from

abroad.2 It was not alone in this practice: China

jammed Radio Moscow, Taiwanese Radio, and the

Voice of Vietnam.3

Many of these same basic practices persist online

to this day in repressive regimes the world over.

Shortly after invading Ukraine in 2022, Russia

blocked access to Facebook, Twitter, and major

foreign news outlets.4 The notorious “Great

Firewall” of China has for decades restricted

Chinese citizens’ access to foreign sources of

information online. Leading news sites, such as the

New York Times, the Wall Street Journal, and the

British Broadcasting Corporation, are blocked.5 So

too are popular American social media platforms

like Facebook, X, Instagram, and YouTube.6 Earlier

this year, the Chinese government ordered Apple to

See Rochelle B. Price, Jamming and the Law of

International Communications, 5 Mich. J. Int’l L. 391, 391

(1984).

3 Id.

Freedom on the Net 2024: Russia, Freedom House,

https://perma.cc/WKU5-EKVW; Robert McMahon, Russia Is

Censoring News on the War in Ukraine. Foreign Media Are

Trying to Get Around That, Council on Foreign Rels. (Mar. 18,

2022), https://perma.cc/H7BU-BXZ3.

Freedom on the Net 2024: China, Freedom House,

https://perma.cc/7SW2-CRMT.

6 Id.

remove WhatsApp, Threads, Signal, and Telegram

from its app store in China.7

Other rights-abusing governments also restrict

their citizens’ ability to access information from

abroad. Iran blocks a wide array of international

news websites and social media platforms.8 Saudi

Arabia blocks certain news sites affiliated with

countries with which the Saudi government has

tensions, such as Qatar, Iran, and Turkey.9 And in

May, Israeli Prime Minister Benjamin Netanyahu’s

government, which in recent years has conducted

what the Israeli newspaper Haaretz has

characterized as “an assault on democracy,”10 shut

down the Israeli operations of the Qatari network Al

Jazeera and pulled its television station off the air.11

The list of countries that have banned TikTok

should itself be a warning because these countries

do not share American commitments to a free and

open internet. According to a report from earlier this

year, there are eleven such countries, not counting

7 Aaron Gregg & Eva Dou, Apple Pulls WhatsApp, Threads

and Signal from App Store in China, Wash. Post (Apr. 19,

2024), https://perma.cc/6Z63-YZ6U.

Freedom on the Net 2024: Iran, Freedom House,

https://perma.cc/7DPU-S5BS.

9 Freedom on the Net 2024: Saudi Arabia, Freedom House,

https://perma.cc/XEV3-87T7.

10 Dahlia Scheindlin, Netanyahu’s Assault on Democracy,

Haaretz (Aug. 8, 2023), https://perma.cc/7KLB-CH93.

11 Tia Goldenberg & Jon Gambrell, Israel Orders Al Jazeera

to Close Its Local Operation and Seizes Some of Its Equipment,

Assoc. Press (May 5, 2024), https://perma.cc/ST7A-BEA6.

those that merely disallow the app on government

devices.12 Ironically, China bans TikTok, allowing

only a Chinese version called Douyin that is subject

to heavy censorship.13 The ten other countries—

Afghanistan,14

India,15

Iran,16

Jordan,17

Kyrgyzstan,18 Nepal,19 North Korea,20 Senegal,21

12 Anna Gordon, Here’s All the Countries With TikTok Bans

as Platform’s Future in U.S. Hangs in Balance, Time (Apr. 25,

2024), https://perma.cc/35ZD-J4UE.

13 Claire Fu & Daisuke Wakabayashi, There Is No TikTok

in China, but There Is Douyin. Here’s What It Is, N.Y. Times

(Apr. 25, 2024), https://perma.cc/QH2B-7MFV.

14 Comm. to Protect Journalists, CPJ Calls on Taliban to

Drop Plans to Restrict Facebook Access in Afghanistan (Apr. 8,

2024), https://perma.cc/7SAL-F8YT.

Modi Ramps Up Online Censorship in India, Reps.

Without Borders (Apr. 9, 2023), https://perma.cc/43HV-9N9N.

16 Freedom on the Net 2024: Iran, Freedom House, supra

note 8.

Freedom on the Net 2024: Jordan, Freedom House,

https://perma.cc/49SP-APSY.

18 Freedom on the Net 2024: Kyrgyzstan, Freedom House,

https://perma.cc/L9NC-FQD3.

19 U.S. Dep’t of State, Nepal 2023 Human Rights Report, at

11–13, https://perma.cc/5XU5-LUHQ.

20 U.S. Dep’t of State, Democratic People’s Republic of Korea

2023 Human Rights Report, at 26–28, https://perma.cc/MV6VMLNY.

Ngouda Dione, Senegal Cuts Internet Again Amid

Widening Crackdown on Dissent, Reuters (Feb. 13, 2024),

https://perma.cc/SRV4-ZKM9.

Somalia,22

and

Uzbekistan23—also

restrict

politically disfavored online material or restrict

internet access.24

The United States has at times restricted its

citizens’ access to speech from abroad due to fears of

foreign manipulation, but many of those efforts are

now recalled with embarrassment and shame. Cold

War restrictions blocked Americans’ access to a wide

array of political and cultural figures, as well as

foreign materials from so-called “enemy” countries.

These provisions—which Congress has since largely

rescinded—prevented Americans from accessing

information from abroad and caused others to

question our nation’s dedication to its ideals.

In 1952, Congress passed the McCarran-Walter

Act, which barred from entry to the United States

anarchists, Communists, and persons whose

“activities” would be “prejudicial to the public

interest.”25 While waivers of inadmissibility were

sometimes available, no waiver was available for

denials under the “prejudicial to the public interest”

22 U.S. Dep’t of State, Somalia 2023 Human Rights Report,

at 20–23, https://perma.cc/4JAQ-H2ZB.

23 Freedom on the Net 2024: Uzbekistan, Freedom House,

https://perma.cc/M3EE-6VYP.

24 Since the report was published, a twelfth country appears

to have joined the list. See Llazar Semini, Albanian Prime

Minister Says TikTok Ban was Not a ‘Rushed Reaction to a

Single

Incident’,

Assoc.

Press

(Dec.

23,

2024),

https://perma.cc/TPP4-3FAJ.

25 Pub. L. No. 82-414, § 212(a)(28), (27), 66 Stat. 163, 184–

185 (1952).

standard.26 In passing the law, Congress overrode

the veto of President Truman, who characterized the

provisions as “thought control” and “inconsistent

with our democratic ideals,” remarking that

“[s]eldom has a bill exhibited the distrust evidenced

here for citizens and aliens alike.”27

The McCarran-Walter Act was used to target a

vast array of political and cultural figures. “From

the time it was enacted in the fever of

McCarthyism,” said Senator Daniel Patrick

Moynihan in 1987, “there has been an annual

scandal. Some writer, some painter, some minister

could not be allowed to enter the United States.”28

The Act kept out novelists such as Gabriel García

Márquez, Czesław Miłosz, Carlos Fuentes, Jorge

Luis Borges, Graham Greene, and Doris Lessing. It

kept out actors like Maurice Chevalier, Yves

Montand, and Simone Signoret. It kept out poets

like Pablo Neruda. It kept out a former prime

minister—Ian Smith of Rhodesia—and a future

one—Pierre Trudeau of Canada. Persons on the left

and the right were excluded. Even NATO’s former

Vice-Supreme Allied Commander for Nuclear

Affairs in Europe, Nino Pasti, was kept out of the

United States after he criticized the Reagan

26 Id. § 212(d)(3), 66 Stat. 187.

27 98 Cong. Rec. 8084 (1952).

28 Sidney Blumenthal, Congress Lifts Political-Beliefs Bar to

Aliens Under McCarran-Walter Act, Wash. Post (Dec. 17,

1987), https://perma.cc/5ETL-5W5V.

administration’s effort to deploy new missiles to

Europe.29

Predictably, the government’s power to exclude

individuals on the basis of viewpoints it deemed

dangerous or undesirable was used to exclude

individuals who had done nothing more than

criticize

the

United

States.

The

casual

dismissiveness with which the law was deployed was

exemplified in the exclusion of Italian playwright

Dario Fo. “Nobody in State thinks that Fo is going to

foment revolution or throw bombs,” said a State

Department official to a reporter. “It’s just that Fo’s

record of performance with regard to the United

States is not good. Dario Fo has never had a good

word to say about” the United States.30

29 See id.; Deportation Bid Based on McCarthy-Era Law,

L.A. Times (Jan. 29, 1987), https://perma.cc/QM6D-7Y98; John

A. Scanlan, Aliens in the Marketplace of Ideas: The

Government, the Academy, and the McCarran-Walter Act, 66

Tex. L. Rev. 1481, 1496–97 (1988); Steven R. Shapiro,

Ideological Exclusions: Closing the Border to Political

Dissidents, 100 Harv. L. Rev. 930, 930 (1987); David Margolick,

Bar Panel Urges End of Law that Limits Entry Into U.S., N.Y.

Times (Apr. 4, 1984), https://perma.cc/P7FW-XXDC; Steven A.

Holmes, Legislation Eases Limits on Aliens, N.Y. Times (Feb.

2, 1990), https://perma.cc/Z2DV-B3RS.

Statement of Arthur C. Helton, Exclusion and

Deportation Amendments of 1983: Hearing Before the

Subcommittee on Immigration, Refugees, and International

Law of the Committee on the Judiciary, House of

Representatives, Ninety-Eighth Congress, Second Session, on

H.R. 4509 and H.R. 5227 (June 28, 1984), at 107–08 (quoting

Erika Munk, Cross Left, Village Voice (June 2, 1980) at 86),

https://perma.cc/C77S-MYTR.

These practices had serious costs beyond limiting

Americans’ access to speech. They undermined the

U.S. government’s ability to hold other nations

accountable for repressing their own citizens.

Senator Moynihan observed that the McCarranWalter Act “made us seem hypocritical” and “made

us easy to caricature and deride.”31 As the writer

Larry McMurtry testified before Congress in 1989:

[T]he very existence of ideologicallybased legislation undermines the

effectiveness and moral authority of

American organizations . . . that are

dedicated to promoting free and open

communication “within all nations”

and “between all nations” . . . . How can

we presume to be the “leaders of the

free world” and criticize the more

egregious

practices

other

governments when we fail to live up to

the standards we set for ourselves –

that serve as a model for the

internationally recognized human

rights standards against which all

nations are judged?32

31 Clifford D. May, Washington Talk; A McCarthy Era Act,

Used to Block Visits by Foreigners, Is About to Fall, N.Y. Times

(June 1, 1989), https://perma.cc/FQH5-Q8QB.

Testimony of Larry McMurtry, Free Trade in Ideas:

Hearings Before the Subcommittee on Courts, Intellectual

Property, and the Administration of Justice of the Committee

on the Judiciary, House of Representatives, One Hundred First

The practice of ideological exclusion gradually

came to be regarded as irreconcilable with the values

of an open society. In 1977, in order to comply with

its commitment under the Helsinki Accords to

facilitate travel between states, Congress passed the

McGovern Amendment, which modified the

McCarran-Walter Act by providing that the State

Department “should” recommend a waiver of

inadmissibility

when

the

noncitizen

was

inadmissible “by reason of membership in or

affiliation with a proscribed organization.”33 In 1986,

the D.C. Circuit held that the government could

exclude someone on the separate grounds that

admission would be prejudicial to the United States

only if that determination was independent of the

fact of membership or affiliation with a proscribed

organization. See Abourezk v. Reagan, 785 F.2d

1043, 1058 (D.C. Cir. 1986), aff’d by an equally

divided court, 484 U.S. 1 (1987). Congress passed

legislation temporarily repealing the ideological

exclusion provisions of the McCarran-Walter Act in

1987 and 1988 before repealing them permanently

in 1990.34 The Senate vote in favor of repeal was

unanimous.35

Ideological exclusion is not the only means the

U.S. government has used to limit citizens’ access to

Congress, First Session (May

https://perma.cc/7DNH-W9HR.

1989),

56,

33 See Pub. L. No. 95-105 § 112, 91 Stat. 844, 848 (1977);

Shapiro, supra note 29, at 931 n.13.

34 See Holmes, supra note 29.

35 Id.

foreign ideas. In 1917, Congress enacted the Trading

with the Enemy Act (TWEA), which granted the

President the authority to control trade with foreign

adversaries, including the power to restrict the

purchase of books, films, and periodicals produced in

those nations.36 The law was used repeatedly during

World War II and the Korean War, and was

expanded to cover peacetime national emergencies

in 1933.37 However, what were intended to be

temporary restrictions during times of exigency

“were transformed into a permanent fixture of

postwar American life” when President Truman’s

declaration of a national emergency on the eve of the

Korean War remained in effect even after the end of

the conflict in 1953.38

As a result, during the intense national debate in

the late 1960s over the United States’ participation

in the Vietnam War, “access to books, newspapers,

magazines and films produced in North Vietnam

and China was virtually cut off.”39 Although

Congress ultimately limited the TWEA to wartime

use in 1977, it subsequently granted peacetime

sanctions authority to the President through the

International Emergency Economic Powers Act

(IEEPA), and grandfathered all restrictions—

including stringent limitations on trade with Cuba,

36 Pub. L. No. 65-91, 40 Stat. 411 (1917).

37 Burt Neuborne & Steven R. Shapiro, The Nylon Curtain:

America’s National Border and the Free Flow of Ideas, 26 Wm.

& Mary L. Rev. 719, 728–29 (1985).

38 Id. at 729.

39 Id. at 730.

North Korea, Vietnam, and Cambodia—then in

effect.40

Scrutiny of the executive branch’s authority to

restrict the exchange of ideas across the border came

to a flashpoint in 1981, when the Treasury

Department directed customs and postal authorities

to seize thousands of publications from Cuba

destined for American readers.41 Over 100 plaintiffs,

including prominent news outlets like the Nation

and the Guardian, sued on First Amendment

grounds.42 The day before its response was due, the

government capitulated and released the materials

without requiring a license.43

In recognition of the serious First Amendment

interests at stake, Congress in 1988 passed

legislation known as the Berman Amendment to

make clear that TWEA and IEEPA did not authorize

restrictions on the dissemination of information.44

The Berman Amendment exempted from regulation

“the importation from any country, or the

40 Christopher A. Casey, Dianne E. Rennack & Jennifer K.

Elsea, Cong. Rsch. Serv., R45618, The International

Emergency Economic Powers Act: Origins, Evolution, and Use,

at 8 n.57 (2024), https://perma.cc/X9GC-U9A4.

41 See Neuborne & Shapiro, supra note 37, at 731.

42 See id.; see also The Nation v. Haig, No. 81-2988 (D. Mass.

Feb. 12, 1980).

43 See Neuborne & Shapiro, supra note 37, at 731.

44 Jarred O. Taylor III, Information Wants to be Free (of

Sanctions): Why the President Cannot Prohibit Foreign Access

to Social Media Under U.S. Export Regulations, 54 Wm. &

Mary L. Rev. 297, 307 (2012).

exportation to any country, whether commercial or

otherwise,

publications,

films,

posters,

phonograph records, photographs, microfilms,

microfiche,

tapes,

other

informational

materials.” As the accompanying House Report

made clear, the Berman Amendment reflects “the

principle that no prohibitions should exist on

imports to the United States of ideas and

information if their circulation is protected by the

First Amendment.”46 Congress later expanded the

scope of the Berman Amendment in 1994 through

the Free Trade in Ideas Act,47 seeking to “protect the

constitutional rights of Americans to educate

themselves about the world by communicating with

peoples of other countries in a variety of ways.”48

Throughout the 1950s, the U.S. government also

engaged in efforts to restrict Americans from

receiving mail from abroad that it deemed

communist

propaganda.

Officials

detained

everything from Lenin’s Selected Works to Chess for

Beginners.49 In one especially embarrassing episode,

45 Omnibus Trade and Competitiveness Act of 1988, Pub. L.

No. 100-418, § 2502, 102 Stat. 1107, 1371–72 (1988).

H.R. Rep. No. 100-40, pt. 3, at 113 (1987); see also

Kalantari v. NITV, Inc., 352 F.3d 1202, 1205 (9th Cir. 2003)

(“The Berman Amendment was designed to prevent the

executive branch from restricting the international flow of

materials protected by the First Amendment.”).

47 Pub. L. No. 103-236 § 525(a), 108 Stat. 382, 474 (1994).

48 H.R. Rep. No. 103-482, at 239 (1994).

49 Government Exclusion of Foreign Political Propaganda,

68 Harv. L. Rev. 1393, 1393–94 (1955); Murray L. Schwartz &

James C. N. Paul, Foreign Communist Propaganda in the

officials held up delivery of the London Economist

magazine to American subscribers due to a “possible

propaganda matter,” which the Solicitor of the Post

Office blamed on “some over-officious underling.”50

These restrictions not only kept a range of

materials out of the hands of Americans, they posed

a risk to U.S. credibility abroad—something the

government itself recognized. In 1960, an

interagency committee organized by the National

Security Council recommended that the program be

abandoned, noting that “[t]he knowledge that we

ourselves maintain what is loosely considered a

‘censorship’ program impairs the effectiveness of our

presentation abroad.”51 President John F. Kennedy

subsequently discontinued the program in 1961.

Although this apparatus was later revived by

Congress in the Postal Service and Federal

Employees Act of 1962,52 this Court ended the

practice in Lamont. Recognizing Americans’ right to

access speech from abroad, the Court unanimously

invalidated the law’s communist mail provisions.

See 381 U.S. at 305. As Justice Brennan wrote in his

concurring opinion:

Mails: A Report on Some Problems of Federal Censorship, 107

U. Pa. L. Rev. 621, 633–35 (1959).

50 Schwartz & Paul, supra note 49 at 634 n.34.

51 Report Prepared by an Ad Hoc Interagency Committee,

Office of the Historian, U.S. Dept. of State (Jun. 15, 1960),

https://perma.cc/Z4MM-GWZQ.

52 Pub. L. No. 87-793, § 305(a), 76 Stat. 832, 840 (1962).

That the governments which originate

this propaganda themselves have no

equivalent guarantees only highlights

the

cherished

values

our

constitutional framework; it can never

justify emulating the practice of

restrictive regimes in the name of

expediency.

Id. at 310 (Brennan, J., concurring).

Congress’s repeal of the McCarran-Walter Act’s

ideological exclusion provisions, its recognition of

free-speech limitations on the President’s sanctions

authority, and this Court’s own vindication of the

right to receive foreign speech helped turn the page

on ill-advised Cold War efforts to restrict Americans’

access to information and ideas from abroad. As

Senator Charles Mathias cogently articulated in a

speech on the Senate floor: “Diversity, dialog, and

exchange of ideas are the life-giving elements—the

water and air—of American tradition; exclusion,

restriction, repression of ideas are the features of far

more troubled, less confident nations.”53

III.

The Act is subject to strict scrutiny

because it is viewpoint-motivated and its

effect is to broadly restrict protected

expression online.

The Act should be evaluated under the most

stringent form of constitutional review because it

operates as a prior restraint, see Lovell v. City of

53 132 Cong. Rec. 6550 (1986).

Griffin, 303 U.S. 444 (1938); because it was

substantially motivated by a “disagreement with the

message[s] . . . convey[ed]” by and on TikTok, Reed

v. Town of Gilbert, 576 U.S. 155, 164 (2015) (citation

omitted), as evidenced by the Act’s legislative

history and reflected in the government’s defense of

the Act below; and because it effectively “foreclose[s]

an entire medium of expression,” City of Ladue v.

Gilleo, 512 U.S. 43, 55 (1994).54

To start, strict scrutiny is warranted because the

government defends the Act by pointing to dangers

it says are associated with particular viewpoints and

categories of content. In the court below, the

government “invoke[d] the risk that the PRC might

shape the content that American users receive,

interfere with our political discourse, and promote

content based upon [TikTok’s] alignment with the

PRC’s interests.” C.A. Op. 30. The government

expressed particular concern about content relating

to “topics of importance to the PRC,” including

China’s relationship to Taiwan. Id. One of the

government’s declarants noted that “topics in line

with Chinese Communist Party priorities” had an

“outsized prevalence on TikTok” while “various

Uyghur-related and Tibet-related hashtags” had

relatively limited prevalence, C.A. Gov’t App. 22,

and underscored the risk that TikTok might be used

by the Chinese government to “shap[e] the

information landscape in this country and around

the world.” C.A. Gov’t App. 26. These concerns are

54 Amici do not address the “prior restraint” argument at

length here because they understand that other amici intend

to focus their briefs on this issue.

motivated by express disapproval of the content and

viewpoints that the government believes are

prevalent on TikTok, and the detrimental effect the

government believes these messages might have on

Americans.

The government’s defense of the Act echoes the

legislative record, which reveals that many

legislators supported the Act because they disagreed

with particular viewpoints and subjects they

believed to be widespread on TikTok. In November

2023,

the

bill’s

eventual

lead

sponsor,

Representative Mike Gallagher, the chairman of the

House committee on the CCP, published an article

calling for a TikTok ban and characterizing TikTok

as “digital fentanyl” through which the CCP can

“push its propaganda.”55 Two days after introducing

the bill in March 2024, Chairman Gallagher noted

“privacy” and “espionage” concerns regarding

TikTok but made clear that the “most important[ ]”

reason for a ban was the possibility that “young

Americans are getting all their news from

Tik[T]ok.”56

A House report on the bill likewise declared that

communications applications owned by foreign

adversaries “present a clear threat” because they

can, among other things, “push . . . propaganda on

Representative Mike Gallagher, Why Do Young

Americans Support Hamas? Look at TikTok., The Free Press

(Nov. 1, 2023), https://perma.cc/QGU6-2L65.

Transcript of Chairman Gallagher’s Press Conference

Response to TikTok Intimidation Campaign Against U.S.

Users 4 (Mar. 7, 2024), https://perma.cc/7VL5-UTCH.

the American public.”57 The report repeated

concerns that the Chinese Communist Party (CCP)

could use TikTok for “influence operations” and to

“drive

divisive

narratives

internationally.”58

Representative and former House Speaker Nancy

Pelosi similarly cited concerns over CCP

“propaganda” in explaining her vote in favor of the

Act.59

In the brief debate on the Senate floor, senators

likewise cited viewpoint-based motivations for

supporting the legislation. Senator Maria Cantwell

expressed concern that “[f]oreign policy issues

disfavored by China and Russian governments . . .

had fewer hashtags on TikTok, such as pro-Ukraine

or pro-Israeli hashtags.”60 Senator Pete Ricketts

supported the ban because the CCP allegedly uses

TikTok “to skew public opinion on foreign events in

their favor,” including by promoting hashtags that

align with its foreign policy perspectives such as

“StandwithKashmir” and “[p]ro-Palestinian and

pro-Hamas

hashtags.”61

Indeed,

multiple

lawmakers have cited the prevalence of pro-

57 H.R. Rep. No. 118-417, at 2 (2024).

58 Id. at 8, 10.

Pelosi Statement on House Passage of Protecting

Americans from Foreign Adversary Controlled Applications

Act, Congresswoman Nancy Pelosi (Mar. 13, 2024),

https://perma.cc/JAV6-Y9TJ.

60 170 Cong. Rec. S2963 (Apr. 23, 2024).

61 Id. at S2970–71.

Palestinian content on TikTok as a reason for

supporting the Act.62

The only senator to speak in the Senate in

opposition to the bill, Senator Ed Markey, noted that

his colleagues “want to ban TikTok . . . because of

TikTok’s viewpoints”—a course of action that, he

warned,

carried

grave

First

Amendment

implications. Senator Markey was right about the

facts and about their implications.

The legislative record is shot through with

statements that collectively make plain that the

statute the government describes as an effort to

address “covert content manipulation” is, in fact, an

effort to restrict Americans’ access to disfavored

viewpoints and messages. This kind of censorship is

antithetical to the First Amendment, as this Court

emphasized only last term. Nat’l Rifle Ass’n of Am.

v. Vullo, 602 U.S. 175, 187 (2024) (“[V]iewpoint

discrimination is uniquely harmful to a free and

democratic society.”); cf. Moody, 603 U.S. at 741

(referencing statements made by a law’s sponsor and

the Governor as evidence of the state’s motivation to

suppress certain viewpoints). At the very least, it is

62 Nikki McCann Ramirez, Lawmakers Admit They Want to

Ban TikTok over Pro-Palestinian Content, Rolling Stone (May

6, 2024), https://perma.cc/RVJ8-9CK7; Prem Thakker & Akela

Lacy, In No Labels Call, Josh Gottheimer, Mike Lawler, and

University Trustees Agree: FBI Should Investigate Campus

Protests, The Intercept (May 4, 2024), https://perma.cc/EUC57F8L.

63 170 Cong. Rec. S2968 (Apr. 23, 2024).

reason for this Court to subject the statute to

especially searching review.

There is another reason why the Court should

apply strict scrutiny here: because the Act’s effect is

to shutter an entire medium of expression. City of

Ladue, 512 U.S. at 54–55. Of course, the Act does not

preclude Americans from using other social media

platforms, like Facebook, YouTube, and Twitch. But

this doesn’t matter, for the same reason an

American’s right to read (say) the Columbia Daily

Spectator can’t be set aside on the grounds that she

can read the New York Post instead. As the Court

observed in Reno, “one is not to have the exercise of

his liberty of expression in appropriate places

abridged on the plea that it may be exercised in some

other place.” 521 U.S. at 880 (quoting Schneider v.

State of New Jersey, 308 U.S. 147, 163 (1939)). The

First Amendment protects Americans’ right to

access their preferred media, even if the government

would prefer they access other media instead.

This principle is especially important here

because social media platforms are not

interchangeable expressive products. They offer

meaningfully different features, user bases, and

expressive environments. TikTok prioritizes

different speech than other platforms do and

provides users with a distinct set of affordances. As

a result, it fosters different expressive communities.

Cf. Moody, 603 U.S. at 743 (suggesting that a social

media platform’s choices about “selecting and

moderating content” can result in a “different

expressive product, communicating different values

and priorities”); City of Ladue, 512 U.S. at 56

(explaining that a residential sign “often carries a

message quite distinct from placing the same sign

someplace else, or conveying the same text or picture

by other means”). Foreclosing entirely Americans’

ability to access TikTok therefore warrants strict

scrutiny.

IV.

The Act fails First Amendment scrutiny

because suppressing speech is not a

permissible means of countering foreign

content manipulation, and because the

government could achieve its other goals

with less restrictive means.

The Act fails any form of heightened scrutiny. As

an initial matter, the government has no legitimate

interest in banning Americans from accessing

foreign speech—even if the speech comprises foreign

propaganda or reflects foreign manipulation. And

while the government has a legitimate interest in

protecting Americans from covert propaganda and in

safeguarding Americans’ personal data, these goals

could readily be achieved with less restrictive

means.

The suppression of speech is not a permissible

means of addressing concerns about misinformation,

propaganda, and content manipulation. The First

Amendment generally forecloses the government

from suppressing speech on the basis of its truth or

falsity. United States v. Alvarez, 567 U.S. 709, 718–

19 (2012) (plurality); id. at 730–31 (Breyer, J.,

concurring).64 The Supreme Court has long

recognized that the remedy for misleading speech is

“more speech, not enforced silence.” Brown v.

Hartlage, 456 U.S. 45, 61 (1982).

The Court reaffirmed this view just last term in

Moody: “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.” 603 U.S. at 734. Thus,

the objective of “correct[ing] the mix of speech”

available on a “major social-media platform[ ]”—by,

for instance, forcing the platform to change

owners—is not a “valid, let alone substantial”

government interest. Id. at 740.

The court below distinguished “[p]reventing

covert content manipulation by an adversary nation”

from “suppressing propaganda or misinformation,”

C.A. Op. 42–43, suggesting that restricting speech

on the former ground is justifiable (and indeed even

“vindicates” First Amendment values, C.A. Op. 43),

whereas restricting speech based on the latter

ground is not. But this reasoning does not hold up.

First, if the government’s concern is with the

covertness of foreign content manipulation, there are

less restrictive alternatives than a ban. For example,

the government could require platforms to disclose

certain information about their recommendation

64 There are important exceptions to this rule, but none of

them has any application here. See generally Eugene Volokh,

When Are Lies Constitutionally Protected?, Knight First

Amend. Inst. (Oct. 19, 2022), https://perma.cc/4PWU-FWUT.

algorithms and content-moderation practices, or it

could make the case to the American people that the

speech they are consuming is foreign propaganda.

As this Court has explained, “disclosure is a less

restrictive alternative to more comprehensive

regulations of speech,” Citizens United v. Fed.

Election Comm’n, 558 U.S. 310, 369 (2010), as is

government counterspeech, see Alvarez, 567 U.S. at

726–29.

The D.C. Circuit asserted that covert content

manipulation is “not a type of harm that can be

remedied by disclosure” and that relying on

government counterspeech to address the problem is

“naïve.” C.A. Op. 54. But informing the American

public about the possibility of foreign manipulation

would seem to be the most direct way to address the

government’s concern that the Chinese government

could co-opt TikTok without Americans knowing of

it. This Court has counseled that “[a] court should

not assume a plausible, less restrictive alternative

would be ineffective.” United States v. Playboy Ent.

Grp., Inc., 529 U.S. 803, 824 (2000).

While the court below also contended that

disclosure or government counterspeech would not

“mitigate that threat nearly as effectively as

divestiture,” C.A. Op. 54, this Court has underscored

that it is a mistake to focus on “whether the

challenged restriction has some additional ability to

achieve Congress’ legitimate interest,” for “[a]ny

restriction on speech could be justified under that

analysis.” Ashcroft v. ACLU, 542 U.S. 656, 666

(2004). The appropriate focus, the Court has said,

should be on “whether the challenged regulation is

the least restrictive means among available,

effective alternatives.” Id. Here, a sweeping ban on

TikTok is not.

Second, if the government’s concern is with

foreign government speech or propaganda (rather

than with the covertness of the alleged propaganda),

that concern cannot justify a broad prohibition on

Americans’ access to speech from abroad. Lamont

makes this clear. The mail restrictions in Lamont—

which undeniably targeted “foreign government[ ]”

“propaganda,” 381 U.S. at 308 (Brennan, J.,

concurring)—were unlawful precisely because they

sought to “control the flow of ideas to the public,” id.

at 306 (majority opinion). The Act here does the

same, in an even more pernicious manner: while the

law in Lamont burdened Americans’ access to

specific speech from abroad, the Act prohibits it

entirely.

The D.C. Circuit’s efforts to distinguish Lamont

are unpersuasive. The panel opinion argued that the

Act would not in fact prevent Americans from

accessing foreign speech, because TikTok’s new

owners “could circulate the same mix of content as

before,” C.A. Op. 44, but this does not distinguish

Lamont. In that case, too, the restriction at issue

would not have prevented Americans from receiving

the very same content from domestic speakers. The

Court nonetheless invalidated the law, and it should

do the same here. The Act prevents Americans from

accessing ByteDance’s input into the curation of

TikTok’s feed, and it is extremely implausible that

new owners of the company would continue to curate

the platform in precisely the same way, now and into

the future, as its current owners.65 Even if they did,

Americans are entitled to hear ByteDance’s

perspectives from ByteDance itself, whether or not

there is an American company with roughly the

same views.

In his concurrence, Chief Judge Srinivasan

suggested that Lamont’s holding rested on the

“narrow ground” that the government had imposed

“an affirmative obligation to out oneself to the

government in order to receive communications.”

C.A. Op. 82 (Srinivasan, C.J., concurring). But this

misunderstands the relevance of the affirmative

obligation to the Court’s analysis. In Lamont, the

affirmative obligation was significant only because

it imposed a burden on Americans’ access to foreign

speech, thus triggering First Amendment scrutiny.

381 U.S. at 305, 307; see also Kleindienst, 408 U.S.

at 763 (explaining that Lamont held that the statute

at issue “placed an unjustifiable burden on the

addressee’s First Amendment right”). Here, the

burden is the outright ban that the Act imposes on

access to a platform curated by its current owners.

That burden is more, not less, severe than the one in

Lamont.

The D.C. Circuit also asserted that banning

TikTok would “actually vindicate[ ]” First

Amendment values by preventing foreign

manipulation of American public discourse, C.A. Op.

Petitioners also explained below that it would be

technologically and legally infeasible for new owners to operate

TikTok’s content moderation systems in the same way as

TikTok’s current owners. See C.A. TikTok Petrs.’ Br. 20–21, 23.

43, but this turns the First Amendment on its head.

The opinion below substitutes speculative covert

content manipulation by a foreign government for

definite overt content manipulation by the U.S.

government. As this Court has explained,

permitting our government to interfere with speech

intermediaries’ editorial choices “to advance its own

vision of ideological balance” is not “the way the

First Amendment achieves [its] goal.” Moody, 603

U.S. at 741.

The Act’s data privacy rationale also fails to

justify the law.66 This is because, while the

government certainly has a substantial interest in

protecting Americans’ privacy, far less restrictive

alternatives are available for that purpose. For

example,

the

government

could

pass

comprehensive privacy law to regulate the

collection, transfer, and misuse of Americans’

personal information—including, but not limited to,

its potential transfer to China. Such a law would

address privacy concerns directly and would do so

without restricting Americans’ access to a single,

popular medium of expression. That the government

could satisfy its aims in this way makes clear that a

“substantial portion of the burden on speech”

66 The government has offered no evidence—much less the

“substantial evidence” required—that the Chinese government

has a “real, not merely conjectural” ability to access data

collected by TikTok or to exercise control over the platform.

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666, 664 (1994).

In light of those deficits, the danger the government asserts is

speculative. But even accepting the danger as real, the

government’s intervention cannot withstand scrutiny for the

reasons discussed below.

imposed by banning TikTok does nothing to

“advance [the government’s data privacy] goals.”

Ward v. Rock Against Racism, 491 U.S. 781, 799

(1989).

Courts frequently invalidate “total ban[s]” on a

particular form of expressive activity for precisely

this reason. See Ward, 491 U.S. at 799 n.7 (citing

Martin, 319 U.S. 145–46); City of Ladue, 512 U.S. at

55 (collecting cases). It is the “essence of narrow

tailoring” that a restriction actually “focus[ ] on the

source of the evils the [government] seeks to

eliminate,” and not “suppress a great quantity of

speech that does not [itself] cause th[ose] evils.”

Ward, 491 U.S. at 799 n.7. In this case, the “evil[ ]”

the government seeks to address is the

dissemination and use of Americans’ personal

information. This stems from platforms’ data

collection practices, not the expressive aspects of

online communications. Therefore, just as a total

ban on handbilling is plainly overbroad in relation

to the problems of “fraud, crime, litter, traffic

congestion, or noise” that could result from it, so too

a total ban on TikTok is “substantially broader than

necessary to achieve the interests justifying it.” Id.

(citing Martin, 319 U.S. at 145–46); see also Alario

v. Knudsen, 704 F. Supp. 3d 1061, 1079 (D. Mont.

2023) (observing that, in attempting to ban TikTok,

the Montana “[l]egislature used an axe to solve its

professed concerns when it should have used a

constitutional scalpel”).

Notably, Congress has already recognized that it

is possible to further data privacy aims directly and

without resorting to the suppression of vast amounts

of protected speech. In the same omnibus legislation

as the TikTok ban, Congress passed another law

that prohibits data brokers from transferring

“personally identifiable sensitive data” to designated

foreign adversaries, including China.67 Congress

could build on that law—without restricting

speech—by limiting the collection and transfer of

personal data by online platforms such as TikTok.68

In any event, the government’s data protection

interest cannot save the Act. This is because the

government’s content manipulation interest is not

merely an inadequate one, but an illicit one, as it

reflects the impermissible purpose of “protecting”

Americans from speech the government would

prefer not be heard. Cf. Sorrell v. IMS Health Inc.,

564 U.S. 552, 574–75 (2011) (holding that an

otherwise valid interest in protecting consumers’

data privacy could not withstand First Amendment

scrutiny where the government acted with an

“impermissible purpose to burden disfavored

speech”); C.A. Op. 78 (“[T]he government makes no

argument that the Act’s application to TikTok

should be sustained based on the data-protection

interest alone.”) (Srinivasan, C.J., concurring).

Protecting Americans’ Data from Foreign Adversary

Controlled Applications Act of 2024, Pub. L. No. 118-50, Div. I

§ 2(a), 138 Stat. 960 (2024).

68 See, e.g., Exec. Order No. 14,117, 89 Fed. Reg. 15421 (Feb.

28, 2024) (addressing the collection, use, and transfer of

Americans’ bulk sensitive personal data in transactions with

certain countries).

CONCLUSION

Amici respectfully submit that the Court should

reverse the judgment below.

Respectfully submitted,

Jameel Jaffer

Counsel of Record

Ramya Krishnan

Xiangnong Wang

Alex Abdo

Knight First Amendment Institute

at Columbia University

475 Riverside Drive

Suite 302

New York, NY 10115

(646) 745-8500

jameel.jaffer@knightcolumbia.org

Counsel for Amici Curiae

December 27, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.