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

No. 24-656

IN THE

Supreme Court of the United States

TIKTOK, INC., ET AL.,

Petitioners

v.

MERRICK B. GARLAND, ATTORNEY GENERAL

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF FIRST AMENDMENT AND INTERNET

LAW PROFESSORS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

NICHOLAS REDDICK

JONATHAN PATCHEN

ALYXANDRA N.

VERNON

ANTHONY VECCHIO

WILLKIE FARR

& GALLAGHER LLP

MICHAEL GOTTLIEB*

MERYL GOVERNSKI

WILLKIE FARR

& GALLAGHER LLP

1875 K STREET NW

WASHINGTON, DC 20006

(202) 303-1016

mgottlieb@willkie.com

*Counsel of Record

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE .................... 1

SUMMARY OF ARGUMENT ........................... 6

ARGUMENT ..................................................... 9

I

THE ACT’S DIVESTITURE MANDATE

IS SUBJECT TO STRICT SCRUTINY

BECAUSE IT DISPROPORTIONATELY

BURDENS TIKTOK AND

DISCRIMINATES BASED ON

CONTENT AND VIEWPOINT. .................. 9

A. The Act Discriminates Based on

Content and Viewpoint, Making it

Presumptively Unconstitutional and

Subject to Strict Scrutiny. ...................... 11

B. The Act Imposes a Disproportionate

Burden on TikTok, Making it Subject

to Strict Scrutiny. ................................... 17

II THE ACT CANNOT SURVIVE STRICT

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

A. The

Interests

Cited

by

the

Government Do Not Justify the Act’s

Content

and

Viewpoint-Based

Restrictions. ............................................ 21

B. The Public Record Does Not Support

the Government’s Justifications for

the Act. .................................................... 23

1. The Government Has Not Met the

Evidentiary Burden Required to

Meet the Demands of Strict

Scrutiny. ............................................ 24

ii

2. The Entire Record Suggests that

the Government’s Justifications for

the Act Are Pretextual. ..................... 28

C. The Act Is Not the Least Restrictive

Means to Achieve the Act’s Putative

Goals........................................................ 30

CONCLUSION .................................................. 33

iii

TABLE OF AUTHORITIES

Page

Cases:

Abrams v. United States,

250 U.S. 616 (1919) .......................................... 6, 11

Ashcroft v. ACLU,

542 U.S. 656 (2004) .............................................. 25

Barr v. Am. Ass’n of Pol. Consultants,

591 U.S. 610 (2020) ................................................ 9

Brandenburg v. Ohio,

395 U.S. 444 (1969) .............................................. 13

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ........................................ 26, 27

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) .............................................. 30

Holder v. Humanitarian L. Project,

561 U.S. 1 (2010) ............................................ 26, 27

Lamont v. Postmaster Gen.,

381 U.S. 301 (1965) ........................................ 13, 21

Landmark Commc’ns, Inc. v. Virginia,

435 U.S. 829 (1978) .............................................. 22

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

403 U.S. 713 (1971) ............................................. 22

iv

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943) .............................................. 18

Nat’l Rifle Ass’n of Am. v. Vullo,

602 U.S. 175 (2024) ........................................ 17, 28

Packingham v. North Carolina,

582 U.S. 98 (2017) ............................................ 6, 19

Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n,

460 U.S. 37 (1983) .......................................... 16, 30

Police Dep’t of Chi. v. Mosley,

408 U.S. 92 (1972) ............................................ 9, 11

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) .................................. 10, 11, 12

Reed v. Town of Gilbert, Arizona,

576 U.S. 155 (2015) .............................................. 26

Regan v. Taxation with Representation

of Wash.,

461 U.S. 540 (1983) .............................................. 13

Reno v. ACLU,

521 U.S. 844 (1997) .............................................. 19

Republican Party of Minn. v. White,

536 U.S. 765 (2002) .............................................. 26

Ridley v. Mass. Bay Transp. Auth.,

390 F.3d 65 (1st Cir. 2004) .................................. 15

v

Rosenberger v. Rector and Visitors of

the Univ. of Va.,

515 U.S. 819 (1995) .............................................. 12

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

512 U.S. 622 (1994) ........................................ 12, 18

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000) .............................. 8, 11, 25, 27

United States v. Schwimmer,

279 U.S. 644 (1929) ................................................ 6

Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp.,

429 U.S. 252 (1977) .............................................. 16

Other Authorities

Ashutosh Bhagwat, Do Platforms Have

Editorial Rights?, 1 J. OF FREE

SPEECH L. 97 (2021). ............................................ 15

Elena Kagan, Private Speech, Public

Purpose: The Role of Governmental

Motive in First Amendment

Doctrine, 63 U. CHI. L. REV. 413, 445

(1996) .................................................................... 14

Geoffrey R. Stone, Free Speech and

National Security, 84 IND. L. J. 939,

939 (2009) ............................................................. 32

Richard A. Epstein, Property, Speech,

and the Politics of Distrust, 59 U.

CHI. L. REV. 41, 64 (1992) .................................... 14

1

INTERESTS OF AMICI CURIAE†

Amici curiae are law professors and scholars who

write and teach about the First Amendment and the

Internet. Amici have an interest in ensuring that this

Court rule in accordance with the fundamental freedoms protected by the First Amendment. The names

and associations of amici are printed below.‡

Shubhangi Agarwalla

Resident Fellow, Information Society Project

Yale Law School

Enrique Armijo

Professor of Law

Elon University School of Law

Kevin Bankston

Adjunct Professor of Law

Georgetown University Law Center

Susan Benesch

Faculty Associate, Berkman Klein Center for Internet & Society

Executive Director, Dangerous Speech Project

Harvard University

† Pursuant to this Court’s Rule 37.6, counsel for amici curiae

state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than the

amici curiae and their counsel made a monetary contribution intended to fund its preparation or submission.

‡ Institutions are listed for identification purposes only. Opin-

ions expressed are those of the individual amici, and not necessarily of their affiliated institutions.

2

Ashutosh Bhagwat

Boochever and Bird Endowed Chair for the Study and

Teaching of Freedom

Equality and Distinguished Professor of Law

The University of California, Davis School of Law

Stuart N. Brotman

Professor of Journalism and Media

University of Tennessee, Knoxville Haslam College

of Business

Ryan Calo

Lane Powell & D. Wayne Gittinger Professor of Law

University of Washington School of Law

Anupam Chander

Scott K. Ginsburg Professor of Law and Technology

Georgetown University Law Center

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of

Law

The University of California, Berkeley School of Law

Alan K. Chen

Thompson G. Marsh Law Alumni Professor

University of Denver, Sturm College of Law

David Craig

Associate Professor of Communication

University of Southern California Annenberg School

for Communication and Journalism

Eric Goldman

Associate Dean of Research

3

Professor of Law and Co-Director, High Tech Law Institute

Santa Clara University School of Law

Gregory Gondwe

Assistant Professor of Journalism and New Media

California State University, San Bernardino

James Grimmelmann

Tessler Family Professor of Digital and Information

Law

Cornell Law School

Nikolas Guggenberger

Assistant Professor of Law

University of Houston Law Center

G.S. Hans

Associate Clinical Professor of Law

Cornell Law School

Robert A. Heverly

Associate Professor of Law

Albany Law School

Thomas E. Kadri

Assistant Professor

University of Georgia School of Law

David Kaye

Clinical Professor of Law

University of California, Irvine School of Law

Heidi Kitrosser

William W. Gurley Professor of Law

Northwestern University – Pritzker School of Law

4

Vivek Krishnamurthy

Associate Professor of Law

University of Colorado Law School

Edward Lee

Professor of Law

Santa Clara University School of Law

Mark A. Lemley

William H. Neukom Professor of Law

Director, Stanford Program in Law, Science, and

Technology

Stanford Law School

David S. Levine

Associate Dean of Faculty Development and Professor of Law

Elon University School of Law

Yvette Joy Liebesman

Professor of Law

Saint Louis University School of Law

Gregory P. Magarian

Thomas and Karole Green Professor of Law

Washington University School of Law

Jess Miers

Visiting Assistant Professor of Law

University of Akron School of Law

Sean O’Brien

Visiting Fellow, Information Society Project and

Founder, Privacy Lab Initiative

Yale Law School

5

Mary-Rose Papandrea

Samuel Ashe Distinguished Professor of Constitutional Law

University of North Carolina School of Law

Kermit Roosevelt

David Berger Professor for the Administration of

Justice

University of Pennsylvania Carey Law School

Jennifer Safstrom

Assistant Clinical Professor of Law

Director, Stanton Foundation First Amendment

Clinic

Vanderbilt Law School

Pamela Samuelson

Richard M. Sherman Distinguished Professor of Law

University of California – Berkeley School of Law

Madhavi Sunder

Frank Sherry Professor of Intellectual Property Law

Georgetown University Law Center

Christopher Jon Sprigman

Murray and Kathleen Bring Professor of Law

Co-Director

Engelberg Center on Innovation Law and Policy

New York University School of Law

Jordi Weinstock

Lecturer on Law, Harvard Law School

Senior Advisor, Harvard Institute for Rebooting Social Media

6

SUMMARY OF ARGUMENT

“Without freedom of thought, there can be no

such thing as wisdom, and no such thing as public liberty, without freedom of speech.” Benjamin Franklin,

Silence Dogwood, No. 8 (July 9, 1722). For this reason, the U.S. Constitution makes clear that the Government cannot abridge free speech based on its content or viewpoint absent compelling and narrowly tailored grounds. Indeed, the protection of all speech is

foundational to American democracy. See United

States v. Schwimmer, 279 U.S. 644, 654–55 (1929)

(Holmes, J., dissenting) (“[I]f there is any principle of

the Constitution that more imperatively calls for attachment than any other it is the principle of free

thought”); Abrams v. United States, 250 U.S. 616, 628

(1919) (Holmes, J., dissenting) (“[A]s against dangers

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

right to free speech is always the same”).

Three weeks ago, the United States Court of

Appeals for the District of Columbia Circuit (the

“lower court”) upheld the Protecting Americans from

Foreign Adversary Controlled Applications Act, Pub.

L. No. 118-50, div. H (the “Act”). The Act is an extraordinary use of government power, requiring

ByteDance (TikTok’s owner) to divest TikTok or requiring a ban of TikTok wholesale. To put the lower

court’s holding in context: millions of Americans use

TikTok daily to express political, social, and economic

views. It is a paradigmatic modern-day “public

square.” See Packingham v. North Carolina, 582 U.S.

98, 107 (2017). Both TikTok’s and its users’ speech

7

will be eradicated under the Act’s mandate of divestiture or ban. The free speech consequences are thus

serious and wide-ranging.

This is a shocking holding in a country founded

on the principle that all speech should be permitted

and protected absent actual cause. It is particularly

shocking given that the Act discriminates against TikTok, and TikTok alone, based on the content and viewpoint of its speech. Indeed, one of the Government’s

rationales for the Act—to limit the People’s Republic

of China’s (“PRC”) ability to manipulate content covertly on the TikTok platform—is expressly content

and viewpoint-based. The lower court acknowledged

as much, agreeing that the “risk that the PRC might

shape the content that American users receive, interfere with our political discourse, and promote content

based upon its alignment with the PRC’s interests”

references the “content of TikTok’s speech.” Opinion

(“Op.”) at 30. But it failed to mention that this also

attempts to regulate based on the viewpoint—e.g.,

anti-Taiwanese independence messaging—of proPRC speech. See, e.g., id. at 30, 43.

A review of the content and viewpoint purposes

underlying the Act requires the application of strict

scrutiny with the presumption that the Act is unconstitutional. The lower court did not do so. The lower

court’s scrutiny was strict in theory, but lax in fact. It

allowed the Act to stand based on the risk that TikTok

could be used by the PRC to gather information and

manipulate content. The Government provided no

“specific intelligence” to substantiate its concerns that

8

TikTok could be so used and the lower court did not

cite any such evidence. Id. at 32, 47. There was also

no evidence showing that these threats were particularly imminent or that any threats could not be better

handled through less restrictive alternatives, such as

a negotiated mitigation agreement.

Rather, and despite the bare evidentiary record, the lower court deferred to the Government’s

makeshift contentions, which provided post-hoc rationales and dismissed legislators’ own repeated justifications. Strict scrutiny plainly requires more than

the speculation the Government has put forth. United

States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 819,

822 (2000) (requiring the Government to provide

“hard evidence,” rather than “anecdote and supposition” of the problems it seeks to address). As the court

with exclusive original jurisdiction over petitions

challenging the Act, the lower court should have scrutinized the record to ensure the Act was justified. It

did not. And the fact that the lower court did not consider the whole record casts doubt on its conclusion

that the Act was the least restrictive means to achieve

the Government’s goals, especially considering the alternatives proposed by TikTok—e.g., disclosure and

the National Security Agreement. Amici respectfully

urge this Court to reverse the lower court’s opening of

a dangerous and unconstrained national security exception to the First Amendment, and avoid setting a

dangerous precedent that will harm the speech of not

only TikTok, but also millions of TikTok users.

9

ARGUMENT

I THE ACT’S DIVESTITURE MANDATE IS

SUBJECT TO STRICT SCRUTINY BECAUSE IT

DISPROPORTIONATELY BURDENS TIKTOK

AND DISCRIMINATES BASED ON CONTENT

AND VIEWPOINT.

The First Amendment insists on broad tolerance of all speech, regardless of the speaker, the content, or the viewpoint. Indeed, it is a bedrock of free

speech doctrine that the Government cannot pursue

politically expedient speech restrictions as the Government “has no power to restrict expression because

of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95

(1972). For this reason, content-based and viewpointbased laws are presumptively unconstitutional and

subject to strict scrutiny. Barr v. Am. Ass’n of Pol.

Consultants, 591 U.S. 610, 618 (2020).

The Act violates this bedrock principle, facially

discriminating against the content and viewpoint of

TikTok’s expressive activity. This is because (1) the

Act’s definition of a “covered company” expressly targets TikTok; (2) the Act’s divestiture requirement applies only to TikTok and effectively grants the Executive the power to hand-select the next controller/editor

of TikTok; and (3) the Act offers divestiture in lieu of

an outright ban, meaning that TikTok must either

cease its expressive activity or submit to governmental control over its speech. Barely addressing these

issues (and never addressing the viewpoint issues

with the Act), the lower court concluded the at-issue

provisions of the Act are “facially content neutral

10

because they do not target speech based upon its communicative content” and instead “straightforwardly

require only that TikTok divest its platform as a precondition to operating in the United States.” Op. at

28.

But as the lower court agreed, the Government’s justification for the Act is content-based—it

rests on “the risk that the PRC might shape the content that American users receive, interfere with political discourse, and promote content based upon its

alignment with the PRC’s interests.” Id. at 30. It

bears noting that this justification is also viewpoint

discriminatory as it only seeks to suppress pro-PRC

speech. See R.A.V. v. City of St. Paul, 505 U.S. 377,

391–94 (1992) (this type of message selectivity is viewpoint discrimination as it “creates the possibility that

the city is seeking to handicap the expression of particular ideas”). These same content and viewpoint issues permeate the text of the Act. The Act’s provisions

require ByteDance to either divest TikTok or ban TikTok, all based on a fear that TikTok might express

pro-PRC content or viewpoints. This is content and

viewpoint discrimination, which matters to the strict

scrutiny analysis. Because of the viewpoint and content discrimination, the analysis must begin from a

presumption that the Act’s application to TikTok is

unconstitutional.

This is especially so given the Act’s viewpoint

discrimination. See id. at 28–30 (focusing analysis on

whether the Act is content neutral). As Justice

Scalia’s opinion in R.A.V. teaches, viewpoint

11

discrimination coupled with less restrictive alternatives “elevate[s] the possibility [that the Act is unconstitutional] to a certainty.” See R.A.V., 505 U.S. at

394. Given the availability of less restrictive alternatives, see infra Section C, the scales should have been

strongly weighted in favor of unconstitutionality,

which likely would have changed the lower court’s ruling. This Court should correct that error by applying

strict scrutiny.

A contrary holding will disrupt core First

Amendment principles that, generally, speech cannot

be censored or banned based on its content and viewpoint. That principle is especially true where, as here,

the Government targets a singular speaker because it

might promote speech that a foreign power agrees

with. E.g., Abrams, 250 U.S. at 628 (Holmes, J., dissenting) (“[A]s against dangers peculiar to war, as

against others, the principle of the right to free speech

is always the same”). The Act fails strict scrutiny.

A. The Act Discriminates Based on Content and

Viewpoint, Making it Presumptively Unconstitutional and Subject to Strict Scrutiny.

A law is content-based, subject to strict scrutiny, and presumptively unconstitutional if it “restrict[s] expression because of its message, its ideas,

[or] its subject matter[.]” See Police Dep’t of Chi. 408

U.S. at 95. Importantly, “[i]t is rare that a regulation

restricting speech because of its content will ever be

permissible.” Playboy, 529 U.S. at 818. Viewpoint

discrimination—or the regulation of speech based on

“the specific motivating ideology or the opinion or

12

perspective of the speaker”—is a “more egregious form

of content discrimination.” Rosenberger v. Rector and

Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)

(cleaned up). As noted, given the circumstances, the

presumption of unconstitutionality is even stronger—

closer to absolute—for viewpoint discrimination. See

R.A.V., 505 U.S. at 394–95.

The lower court incorrectly held the text of the

Act facially content neutral. Op. at 28. Contrary to

the lower court’s holding, the Act’s provisions do target speech based upon its communicative content, specifically its pro-PRC content. See id. at 30, 43. The

Government’s asserted interest in “covert content manipulation” here is simply a shorthand for “secretly

pushing messages favored by the PRC.” Id. at 42. The

lower court thus misread the Act and misunderstood

the purposes behind it for four reasons.

First, the Act singles out TikTok and

ByteDance for immediate sanction. Sec. 2(c), (g)(3).

For the first time in history, Congress has targeted a

singular company over its views, while deleting and

displacing the speech of over a hundred million Americans. As this Court has held, “laws that discriminate

among media, or among different speakers within a

single medium, often present serious First Amendment concerns.” Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 659 (1994). Despite acknowledging that the

Act singles out TikTok and ByteDance, the lower

court failed to note the serious First Amendment implications of such targeting. See Op. at 26 (noting only

the targeting).

13

Not only does such targeting impact TikTok’s

expressive conduct, but it also affects the millions of

Americans who rely on TikTok to engage in free expression. This unprecedented interference stems

from the Government’s disapproval of the content and

viewpoint of messages that could be espoused on the

TikTok platform. E.g., id. at 30 (risk that content preferring the PRC’s view of Taiwan might be promoted

to TikTok users provided as a reason to justify the

Act); id. at 43 (risk of pro-PRC speech on TikTok justifies the Act).

Indeed, one of the Government’s rationales for

the Act—to limit the PRC’s ability to manipulate content covertly on the TikTok platform—is expressly

content and viewpoint-based. This attempt to suppress content and viewpoints the Government disagrees with is something it cannot do under the First

Amendment. See, e.g., Brandenburg v. Ohio, 395 U.S.

444 (1969) (striking down a law forbidding “advocacy

of the use of force or of law violation”); Lamont v. Postmaster Gen., 381 U.S. 301, 305 (1965) (unanimously

holding that a law that required recipients of communist propaganda sent from foreign countries to confirm they wished to receive the mailing was an unconstitutional “limitation on the unfettered exercise of

the addressee’s First Amendment rights”).

Where, as here, one speaker is targeted because

of the message they might speak or the viewpoint they

might espouse, the regulation is unconstitutionally

content and viewpoint-based. See Regan v. Taxation

with Representation of Wash., 461 U.S. 540, 548

14

(1983) (rejecting First Amendment challenge to differential tax treatment of veterans groups and other

charitable organizations, but noting that the case

would be different were there any “indication that the

statute was intended to suppress any ideas or any

demonstration that it has had that effect”); see also

Elena Kagan, Private Speech, Public Purpose: The

Role of Governmental Motive in First Amendment

Doctrine, 63 U. CHI. L. REV. 413, 445 (1996) (outright

bans tend to disfavor “one subject of discussion compared with others” and “operate to skew debate among

competing ideas on a single subject”).

Second, the Act’s definition of “qualified divestiture” requires the federal government to approve the

purchaser of TikTok. Sec. 2(g)(6). The divestiture requirement grants the President of the United States

the power to select the next editor of TikTok. Sec.

2(c)(1), (g)(3) (under the text of the Act, the approval

condition applies exclusively to TikTok). This power

will allow the President to, for example, select a buyer

sympathetic to the Government’s viewpoint, all while

stripping TikTok of the authority to decide its own

content and leadership. Just as the government cannot take physical control of the printing presses, it

cannot take editorial control of virtual free speech

marketplaces. See Richard A. Epstein, Property,

Speech, and the Politics of Distrust, 59 U. CHI. L. REV.

41, 64 (1992) (“The government cannot take permanent physical possession of the New York Times printing presses”). This amounts to content control, and it

is plainly a content and viewpoint based classification.

15

See Ashutosh Bhagwat, Do Platforms Have Editorial

Rights?, 1 J. OF FREE SPEECH L. 97, 117 (2021).

Third, the Act’s provisions indicate that it is designed to regulate certain types of content and viewpoints because it offers divestiture in lieu of a ban.

The Act requires that TikTok and ByteDance agree to

divestiture or accept a ban, thereby depriving them of

access to the United States market. Implicit in this

reasoning is that some form of TikTok would be permissible (i.e., would not need to be banned) if it had

the “right” owner, who would select the “right” editor

(implicitly, one not sympathetic to the PRC), and,

thus, the “right” type of speech. The Act therefore

makes clear that the government is seeking to control

the content of TikTok’s speech and the viewpoints espoused by its users on the platform.

Finally, the poor fit between the Act’s means

(forced divestiture or an outright ban) and its purported ends (countering the PRC’s efforts to collect

data of and about persons in the United States, and

the risk of the PRC covertly manipulating speech

viewed by persons in the United States), demonstrates a content-based restriction on speech. Op. at

29–31. Judicial suspicion of governmental hostility to

a particular viewpoint arises if a restriction poorly

serves the viewpoint-neutral ground; “where, in other

words, the fit between means and ends is loose or nonexistent.” Ridley v. Mass. Bay Transp. Auth., 390 F.3d

65, 87 (1st Cir. 2004); see supra Kagan, at 455 (“[T]he

looser the fit between the interest asserted and the

16

contours of the law, the greater the cause for suspicion”).

Moreover, the Act limits itself to speech platforms, rather than the constellation of companies that

collect personal data, making clear that its goal is fundamentally intertwined with speech regulation. Act

§ 2(g)(2)(a) (defining a “covered company” as one that

allows users to “generate, share, and view . . . content”). As Petitioners assert, there are numerous

other options more closely tailored to the Government’s justifications for the Act. See TikTok Pet. for

Writ of Cert. at 29–32. Yet, the lower court simply

affords great deference to the claim that Congress considered and rejected these alternatives, rather than

scrutinizing them as carefully as the First Amendment requires. Op. at 53–54.

That requirement is particularly salient where,

as here, official statements and actions indicate that

the Act is a façade for viewpoint-based discrimination.

See, e.g., Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37,49 n.9 (1983) (scouring the record

before finding no indication that “policy was motivated by a desire to suppress” excluded group’s views);

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 268 (1977) (looking to public statements

made by administrative members for evidence of discriminatory intent). The Act contained no legislative

findings actually demonstrating that TikTok poses a

“national security risk.” See Act; Op. at 37. Rather,

public statements made by lawmakers demonstrate

the driving motivation behind the Law was TikTok’s

17

allegedly pro-Palestinian and pro-Chinese content.

See App’x to TikTok’s Br. at 572 (No. 24-1113, D.I. 27)

(Representative Mike Gallagher, who authored the

Act, calling TikTok’s content on the Israel-Hamas conflict “purely one-sided”); id. at 596 (Sen. Romney stating that content featuring and discussing Palestinians

is “overwhelmingly so among TikTok broadcasts”); see

id. at 566 (Sen. Warner opining that TikTok “will be

promoting that Taiwan ought to be part of China, or

that Putin’s right”); Jane Coaston, What the TikTok

Bill Is Really About, According to a Leading Republican, N.Y. TIMES (Apr. 1, 2024), https://www.nytimes.com/2024/04/01/opinion/mike-gallagher-tiktoksale-ban.html (Rep. Gallagher explaining his view

that the “propaganda threat” posed by TikTok was a

“greater concern” than the “espionage threat”). These

comments show that the Act was motivated by content

and viewpoint discrimination.

Properly understood, the Act discriminates on

the basis of both content and viewpoint and therefore

is presumptively unconstitutional.

B. The Act Imposes a Disproportionate Burden on

TikTok, Making it Subject to Strict Scrutiny.

As the lower court recognized, “the Act imposes

a disproportionate burden on TikTok, an entity engaged in expressive activity.” Op. at 26. The Act

plainly “single[s] out” TikTok’s expressive activity by

subjecting TikTok—and only TikTok—to either a sale

or a ban. Id.; see also Nat’l Rifle Ass’n of Am. v. Vullo,

602 U.S. 175, 198 (2024) (“The First Amendment prohibits government officials from wielding their power

18

selectively to punish or suppress speech, directly or

(as alleged here) through private intermediaries”). By

prohibiting third parties from hosting TikTok unless

and until it executes a divestiture, “the Act singles out

TikTok . . . for disfavored treatment.” Op. at 26.

Subjecting TikTok, and TikTok alone, to divestiture triggers strict scrutiny and renders the Act presumptively unconstitutional. This is true even despite the lower court’s contrary conclusion premised

on Turner Broadcasting Systems, Inc. v. FCC, 512

U.S. 622 (1994). See Op. at 29. The special characteristics discussed in Turner do not apply here; asserting

they do could create sweeping consequences.

Turner explains that more intrusive regulation

of broadcast speakers than of speakers in other media

is permissible due to the “unique physical limitations

of the broadcast medium.” See 512 U.S. at 637 (collecting cases). That is, there are more would-be broadcasters than frequencies available in the same locale.

If two broadcasters attempted to transmit over the

same frequency in the same locale, they would interfere with one another’s signals such that neither could

be heard. See Nat’l Broad. Co. v. United States, 319

U.S. 190, 212 (1943). The scarcity of broadcast frequencies thus required the “establishment of some

regulatory mechanism” and the traditional First

Amendment analysis is adjusted to allow some limited

restraints and impose certain affirmative obligations.

Turner, 512 U.S. at 638. A licensing regime is simply

necessary because of the physical constraints of the

medium.

19

The Internet differs both as a matter of practice

and as a matter of function from broadcast media. Internet communications, like newspapers and books,

enjoy the greatest safeguards against intrusive regulation because Internet communications “provide perhaps the most powerful mechanism available to a private citizen to make his or her voice heard.” Packingham, 582 U.S. at 107. And social media services (like

TikTok) “offer[ ] ‘relatively unlimited, low-cost capacity for communications of all kinds.’” Id. at 104 (quoting Reno v. ACLU, 521 U.S. 844, 870 (1997)). The Internet is thus materially different from broadcast networks; it is unlimited and allows any person to share

any opinion they may have. Reno, 521 U.S. at 868–70

(“[A]ny person . . . can become a town crier [on the Internet] with a voice that resonates farther than it

could from any soapbox”). This Court has long rejected arguments that would subject the Internet to

any reduced First Amendment protections. See, e.g.,

Reno, 521 U.S. at 870.

Furthermore, the broad accessibility of the Internet means the First Amendment rights of “TikTok’s millions of users” are equally at stake. Op. at

65. Countless Americans use TikTok to speak, listen,

and engage in expressive activity, as the lower court

noted. See Op. at 8 (“The TikTok platform has approximately 170 million monthly users in the United

States and more than one billion users worldwide”),

id. at 27 (Srinivasan, C.J., concurring) (“[M]any Americans may lose access to an outlet for expression, a

source of community, and even a means of income”);

see also TikTok Pet. for Writ of Cert. at 7 (“Seventeen

20

percent of U.S. adults regularly get news from TikTok”). Banning TikTok, therefore, will deprive a sizable portion of the American population of its preferred medium for expressive activity. The First

Amendment forbids this outcome. It would be a historic departure from our nation’s history and tradition

of tolerating all kinds of speech if this Court were to

erase a platform used by millions of Americans to engage in free expression.

Worse, the shuttering of TikTok will amount to

a massive, government-mandated suppression of

speech. Facially, the Act permits users to download

their content before the ban goes into effect. Act § 2(b).

But given the Act’s timeline, many (if not most) users

will not know to do so, thereby losing their speech forever. The Act’s promise of allowing users time to shift

their content to other platforms is thus largely illusory and will require users to both lose their recorded

speech and the audience to which that speech was

made. Nor is it true that the shuttering of one speech

platform can be cured simply by advising speakers to

find new ones. Indeed, it would be nonsensical to suggest that the free speech harms in the forced closure

of a printing press, library, or bookstore could be cured

by the possibility that users might find alternative

presses, libraries, or bookstores. Further, the Act’s

nominal allowances for downloading content prior to

the ban shows that Congress does not understand the

expressive nature of TikTok. TikTok is a platform

where creators communicate with one another by reacting to and remixing each other’s content. This

21

dynamic conversation is not something you can cut

and paste elsewhere.

And even in the unlikely possibility that TikTok executes a qualified divestiture, Americans will

likely face disconnection from the global TikTok platform, unable to participate in the global exchange of

views that the First Amendment protects. Lamont, 381 U.S. at 305 (upholding the right of an

American to receive the Peking Review #12 without

U.S. government interference). The Act forecloses the

possibility of seamless interoperability between the

Global TikTok platform and the U.S. TikTok platform

by forbidding any operational relationship between

the divested company and “any formerly affiliated entities.” Act §2(g)(6)(B).

Amici urge this Court to remain cognizant of

the Act’s negative ripple effects on the free speech

rights of TikTok’s users, as well as the more immediate implications for TikTok itself. With these concerns in mind, this Court should apply strict scrutiny

and hold that the Government has not presented sufficiently compelling or tailored reasons to overcome

the presumption that the Act is unconstitutional.

II THE

ACT

SCRUTINY.

CANNOT

SURVIVE

STRICT

A. The Interests Cited by the Government Do Not

Justify the Act’s Content and Viewpoint-Based

Restrictions.

Even assuming that the Government’s justifications that divestiture is required to limit the PRC’s

22

data collection and content manipulation are genuine

and non-pretextual, these interests are insufficient to

justify the Act’s plain content and viewpoint-based

discrimination.

Amici recognize that China, Russia, and other

foreign adversaries may attempt to disrupt American

political and social order by creating or amplifying

both traditional mass media and social media content

that serves their interests. But an attempt to sow discord, or a fear of the same, cannot serve as a sufficient

basis to violate free speech. The law—and especially

strict scrutiny—requires more. It requires national

security threats to be imminent. N.Y. Times Co. v.

United States, 403 U.S. 713, 719 (1971) (Black, J., concurring) (“[National] ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First

Amendment”); id. at 730 (Stewart, J., concurring) (national security threat could not justify a ban on speech

absent “direct, immediate, and irreparable damage to

our Nation or its people”); Landmark Commc’ns, Inc.

v. Virginia, 435 U.S. 829, 845 (1978) (before one can

suppress speech, the danger “must not be remote or

even probable; it must immediately imperil”).

Further, the risk that private data may be

gathered and misused is hardly exclusive to TikTok.

E.g., Nicholas Confessore, Cambridge Analytica and

Facebook: The Scandal and the Fallout So Far, N.Y.

TIMES

(Apr.

4,

2018),

https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html (discussing how Facebook

23

data was improperly used to build voter profiles);

Sheera Frenkel & Julian E. Barnes, Russians Again

Targeting Americans with Disinformation, Facebook

and Twitter Say, N.Y. TIMES (Sept. 20, 2020),

https://www.nytimes.com/2020/09/01/technology/facebook-russia-disinformation-election.html. Permitting

the Government to rely on the risk that the PRC

might use TikTok to collect user data would set a precedent that risks of foreign meddling alone justify banning specific social media companies, especially given

that TikTok receives the same type of data as other

social media services. See TikTok and Douyin Explained, CITIZEN LAB (Mar. 22, 2021), https://citizenlab.ca/2021/03/tiktok-anddouyin-explained/ (“In

comparison to other popular social media platforms,

TikTok collects similar types of data to track user behaviour and serve targeted ads”); see also TikTok Pet.

for Review ¶ 85 (No. 24-1113, D.I. 3) (noting that

much of the data collected by TikTok is no different

from the data that Google and Meta collect).

B. The Public Record Does Not Support the Government’s Justifications for the Act.

The lower court held that the Government’s putative goals of countering (1) the PRC’s efforts to collect data of and about persons in the United States;

and (2) the risk of the PRC covertly manipulating content on TikTok were constitutionally permissible justifications for the Act. Op. at 29–31. But nothing exists in the public record that supports the proposition

that the PRC had or imminently planned to collect

American user data or covertly manipulate TikTok

24

content. And the Circuit Court represented that it

“[did] not rely on [the Government’s classified materials] in denying the petitions.” Id. at 65 n.11.

This is extremely troubling because the facts

available in the public record are insufficient for any

court to properly evaluate the Government’s justifications behind the Act. See also supra Section II.A.

Further, the evidence suggests that the Act was

driven by Congress’s desire to eliminate disfavored

speech. Permitting the lower court’s opinion to stand

on such a thin record will have devastating long-term

consequences for free speech.

1. The Government Has Not Met the Evidentiary Burden Required to Meet the Demands

of Strict Scrutiny.

To meet the stringent strict scrutiny standard,

the Government must demonstrate that the Act is

backed by compelling interests and that those interests could not have been accomplished through less

speech-restrictive mechanisms.

See Ashcroft v.

ACLU, 542 U.S. 656 (2004). The Government must

offer “hard evidence,” rather than “anecdote and supposition,” to meet this high burden. Playboy, 529 U.S.

at 819, 822. Absent such evidence, it cannot overcome

the presumption that the Act’s content and viewpoint

bias is unconstitutional.

Yet, as Petitioners noted in their petition, the

Government put forth only “bare factual assertions . . . lacking evidentiary support.” TikTok Pet. for

Writ of Cert. at 34. These same bare assertions were

25

used by the lower court to justify divestiture. For example, the court opined that “the PRC can access information from and about U.S. subsidiaries” and “can

conduct espionage, technology transfer, data collection, and other disruptive activities[.]” Op. at 35 (emphases added). The Government can point to no evidence proving that the PRC has accessed information

or has conducted espionage as required by Playboy

nor has it shown it likely (and not just theoretically

possible) that TikTok has evaded the extensive protections put in place to prevent exactly these actions. To

the contrary, the lower court relied on “reasonable inferences” and “predictions,” id. at 41, 47, to hold divestiture constitutional. This was after the lower

court recognized the weaknesses in the Government’s

position. See id. at 47 (noting that the Government

“lacks specific intelligence that shows the PRC has in

the past or is now coercing TikTok into manipulating

content in the United States”); id. at 32 (“Given the

sensitive interests in national security and foreign affairs at stake, the Government's judgment based upon

this evidence is entitled to significant weight”)

(cleaned up).

The Government thus has not met this standard. It lacks any evidence—let alone compelling evidence—that the justifications for the law have even

occurred. Cf. Brown v. Ent. Merchs. Ass’n, 564 U.S.

786, 800–01 (2011) (California could not show a compelling interest where, as here, it offered only ambiguous proof that the targeted speech actually harmed

minors). And it provides no reason for the Act’s serious underinclusiveness, namely why TikTok alone is

26

being targeted. Given this underinclusiveness, the

Government has not met its burden of showing that

the Act is narrowly tailored to further a compelling

government interest. E.g., Reed v. Town of Gilbert,

Arizona, 576 U.S. 155, 172 (2015); Republican Party

of Minn. v. White, 536 U.S. 765, 780 (2002) (“[A] law

cannot be regarded as protecting an interest of the

highest order, and thus as justifying a restriction on

truthful speech, when it leaves appreciable damage to

that supposedly vital interest unprohibited”) (cleaned

up).

Nor does deference save the lower court’s opinion. To be sure, deference can be appropriate in certain circumstances. See Holder v. Humanitarian L.

Project, 561 U.S. 1, 29 (2010) (deferring to the legislature’s “specific findings regarding the serious threats

posed by international terrorism”). But those circumstances do not apply here. Unlike in Holder, which

the lower court cited to support its extreme deference

to Congress, Congress has not offered any “specific

findings” to justify the Act. See Op. at 47 (“[T]he Government 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”). Moreover, the Act is a civil statute

aimed specially at one speaker—TikTok. The generally applicable statute at issue in Holder was directed

at any speaker who “knowingly provides material support or resources to a foreign terrorist organization[.]”

Holder, 561 U.S. at 8. For these reasons, the Act fails

strict scrutiny.

27

This conclusion accords with the demands of

the First Amendment. Indeed, the “high bar” of strict

scrutiny, if it is truly the most “demanding” test in

constitutional law, requires more than blind deference

to Congress or the Executive. Op. at 32; see Brown,

564 U.S. at 800; Playboy, 529 U.S. at 818 (“It is rare

that a regulation restricting speech because of its content will ever be permissible”). It rightly demands

that a compelling and narrowly tailored reason support censorship. Affirming the lower court’s holding

would signal a sea change—namely, that the Government need offer only ambiguous evidence and conjecture to support the suppression of free and controversial speech. That would set a dangerous precedent.

The risk of covert manipulation does not depend only

on direct ownership or influence by a particular country. Pressure might be exerted in numerous other

ways. Loans or business opportunities might also be

used to covertly influence a newspaper or television

station's coverage or an internet platform's content

moderation. Could the government declare that a particular owner or editor of a news platform was at risk

of future foreign covert influence and thus should be

replaced? Could the government shut down a Chinese-owned AMC Theatre because they, under allegations of allegiance to the PRC, showed anti-Taiwanese

independence movies? Under the lower court’s opinion, presumably yes. The First Amendment demands

more.

28

2. The Entire Record Suggests that the Government’s Justifications for the Act Are Pretextual.

The public record’s scant evidence of “specific

intelligence” of the Government’s justifications supports the conclusion that the Act should fail strict

scrutiny. The absence of evidence demonstrates that

the concerns motivating the Act were pretextual and

that the animating motivation behind the Act was

Congress’s dislike of the content and viewpoint of TikTok’s speech. This Court should exercise vigilance

and carefully scrutinize instances where, as here, the

Government threatens “‘legal sanctions and other

means of coercion’ against a third party ‘to achieve the

suppression’ of disfavored speech[.]” Vullo, 602 U.S.

at 175 (quoting Bantam Books, Inc. v. Sullivan, 372

U.S. 58, 67 (1963)).

Failure to do so will have far-reaching consequences. There is no dispute that the Act will muzzle

the millions of Americans who use TikTok to engage

in expressive activity. See Op. at 12 (noting the “burdens on millions of U.S. users if the TikTok platform

were to become unavailable to them as a forum for expressive activity”); id. at 65 (“TikTok’s millions of users will need to find alternative media of communication”); id. at 27 (Srinivasan, C.J., concurring) (“[M]any

Americans may lose access to an outlet for expression,

a source of community, and even a means of income”);

id. at 8 (“The TikTok platform has approximately 170

million monthly users in the United States and more

than one billion users worldwide”); see also Pet. for

Writ of Cert. at 7 (“Seventeen percent of U.S. adults

29

regularly get news from TikTok”). Not only will the

Act silence TikTok as a forum for free expression, but

it will also silence the millions of Americans who avail

themselves of TikTok to express themselves, and stymie those who wish to hear from other users.

The broad consequences on free speech are particularly troubling given that lawmakers clearly disfavored the type of speech available on TikTok. The

record is replete with evidence suggesting as much.

See, e.g., App’x to TikTok Br. at 566 (24-1113, D.I 27)

(Sen. Warner opining that TikTok “will be promoting

that Taiwan ought to be part of China, or that Putin’s

right”); Jane Coaston, What the TikTok Bill Is Really

About, According to a Leading Republican, N.Y. TIMES

(Apr.

1,

2024),

https://www.nytimes.com/2024/04/01/opinion/mike-gallagher-tiktoksale-ban.html (Representative Mike Gallagher explaining “propaganda threat” of TikTok). Citing similar concerns about the content of TikTok’s expressive

activity, the lower court held divestiture constitutional. Op. at 30–31. Plainly, the divestiture is the

aim to regulate the content of TikTok’s speech, which

the lower court concedes in its opinion. Id. at 43 (admitting that the animating purpose of the divestiture

is to prevent threats of “free speech [distortion] on an

important medium of communication”). This offends

the First Amendment.

The lower court was equally incorrect to dismiss these statements as “stray comments.” Op. at

45. As part of the heightened diligence strict scrutiny

requires, this Court considers statements made

30

contemporaneously with a law’s passing to determine

if the law runs afoul of the First Amendment. See

Perry, 460 U.S. at 49 n.9; Church of Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993)

(holding that, in evaluating if a law’s purpose passes

muster under the First Amendment’s Free Exercise

Clause, courts should consider “contemporaneous

statements made by members of the decision-making

body”). Adherence to this precedent is vital, especially

given the strong evidence showing that the Government’s national security concerns were pretextual.

Doing so would doubtless compel the conclusion that

the Act’s purpose is to suppress disfavored speech,

striking at the heart of the First Amendment.

C. The Act Is Not the Least Restrictive Means to

Achieve the Act’s Putative Goals.

Even if the Government’s justifications for the

Act were compelling and not pretextual, the Government has not met its burden of showing that compelled divestiture or shutdown is the less speech-restrictive mechanism.

First, the lower court summarily dismissed the

less speech-restrictive alternatives provided by TikTok. These include disclosure and TikTok’s proposed

National Security Agreement (the “NSA”). Op at 53.

As Petitioners contend, disclosure is plainly a less restrictive means than an outright ban. TikTok Pet. for

Writ of Cert. at 30 (“[D]isclosure requirements trench

much more narrowly on First Amendment rights than

do flat prohibitions on speech” (cleaned up). Moreover, the lower court’s deference to the Executive’s

31

rejection of the NSA was misplaced given that the Act

was passed by Congress, and the record only indicates

that “Executive Branch officials briefed congressional

committees several times.” Op. at 52; TikTok Pet. for

Writ of Cert. at 31.

Second, it is unclear how the lower court could

have been satisfied that the Act was the least restrictive alternative without any showing that the court

actually examined the evidence in the sealed record.

As the lower court noted, it “[did] not rely on [the Government’s classified materials]” in denying TikTok’s

petition. Op. at 65 n.11. The fact that the lower court

did not consider the whole record casts doubt on its

conclusion that the Act was the least restrictive

means to achieve the Government’s goals.

***

Amici did not set forth these legal errors in the

lower court’s analysis to claim that Congress could

never substantiate the conclusion that TikTok poses a

national security threat with actual evidence sufficient to survive strict scrutiny. Rather, amici sought

to demonstrate that, for the Act (or any law that is

content and viewpoint discriminatory) to be constitutionally permissible under the First Amendment, it

must be supported by a showing of real need and it

must be shown that there is no less restrictive alternative.

The rush to react to foreign propaganda is a

prominent feature in American free speech history.

See Geoffrey R. Stone, Free Speech and National Security, 84 IND. L. J. 939, 939 (2009) (“In the national

32

security setting, however, the United States has a

long and checkered history of allowing fear to trump

constitutional values”). The First Amendment rights

we enjoy today were shaped by a Supreme Court that

grew skeptical of speech restrictions that sprung from

moral panics over socialist and Communist propaganda. With those foundational principles in mind,

Amici urge this Court to find that the Act—which attempts to control the content and viewpoint of TikTok’s expressive conduct—does not withstand strict

scrutiny.

33

CONCLUSION

For the foregoing reasons, this Court should reverse

the judgment of the United States Court of Appeals

for the District of Columbia Circuit.

December 27, 2024

Respectfully submitted,

NICHOLAS REDDICK

JONATHAN PATCHEN

ALYXANDRA N. VERNON

ANTHONY VECCHIO

WILLKIE FARR

& GALLAGHER LLP

MICHAEL GOTTLIEB*

MERYL GOVERNSKI

WILLKIE FARR

& GALLAGHER LLP

1875 K Street NW

Washington, DC 20006

(202) 303-1016

mgottlieb@willkie.com

*Counsel of Record

Counsel for Amici Curiae