Emergency Application — Brian Firebaugh, et al., Petitioners v. Merrick B. Garland, Attorney General

Supreme Court briefDec 16, 2024

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No. 24A____

IN THE

Supreme Court of the United States

____________________

BRIAN FIREBAUGH, ET AL.,

Applicants,

MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE

UNITED STATES

Respondent.

____________________

APPLICATION FOR INJUNCTION PENDING THE FILING AND

DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI

____________________

Ambika Kumar

Tim Cunningham

Xiang Li

DAVIS WRIGHT TREMAINE LLP

920 Fifth Avenue, Suite 3300

Seattle, Washington 98104

(206) 757-8030

Jeffrey L. Fisher

Counsel of Record

O’MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

(650) 473-2600

jlfisher@omm.com

Elizabeth A. McNamara

Chelsea T. Kelly

DAVIS WRIGHT TREMAINE LLP

1251 Avenue of the Americas

New York, New York 10020

(212) 489-8230

Joshua Revesz

O’MELVENY & MYERS LLP

1625 Eye Street NW

Washington, DC 20006

(202) 383-5261

James R. Sigel

Adam S. Sieff

DAVIS WRIGHT TREMAINE LLP

50 California Street, Suite 2300

San Francisco, California 94111

(415) 276-6500

Attorneys for Creator Petitioners

Jacob Huebert

Jeffrey M. Schwab

LIBERTY JUSTICE CENTER

7500 Rialto Blvd.

Suite 1-250

Austin, Texas 78735

(512) 481-4400

Attorneys for BASED Politics, Inc.

RULE 29.6 STATEMENT

Pursuant to this Court’s Rule 29.6, BASED Politics, Inc. states that it is a

Georgia 501(c)(3) nonprofit organization that publishes educational content on free

markets and individual liberty. BASED Politics, Inc. has no parent. No publicly

traded company owns 10% or more of the stock of BASED Politics, Inc. The remaining

applicants are individuals.

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

Applicants (and petitioners below) are Brian Firebaugh, Chloe Joy Sexton,

Talia Cadet, Timothy Martin, Kiera Spann, Paul Tran, Christopher Townsend,

Steven King, and BASED Politics, Inc.

Respondent (and respondent below) is Merrick B. Garland, in his official

capacity as Attorney General of the United States.

The proceedings below are Firebaugh et al. v. Garland, No. 24-1130 (D.C. Cir.),

and BASED Politics Inc. v. Garland, No. 24-1183 (D.C. Cir.). Those actions were

consolidated with TikTok Inc. v. Garland, No. 24-1113 (D.C. Cir.). The petitioners in

that case, TikTok Inc. and ByteDance Ltd., are filing a separate application in this

Court.

TABLE OF CONTENTS

Page

INTRODUCTION ......................................................................................................... 1

OPINIONS BELOW ..................................................................................................... 4

JURISDICTION............................................................................................................ 4

STATEMENT ................................................................................................................ 4

Applicants use TikTok to speak, associate, and listen. ......................... 4

Congress bans TikTok. ............................................................................ 6

Proceedings below ................................................................................... 8

ARGUMENT ............................................................................................................... 11

The Court is likely to grant certiorari to determine whether the Act

violates the First Amendment. ........................................................................ 12

II.

There is a fair prospect of reversal. ................................................................. 17

III.

The Act contravenes our Nation’s history and tradition of

allowing Americans to speak and listen even when foreign

adversaries are involved. ...................................................................... 18

The Act fails strict scrutiny. ................................................................. 25

The equities overwhelmingly favor preventing the Act from going into

effect until this Court determines whether it is constitutional. .................... 32

CONCLUSION............................................................................................................ 38

Exhibit A: D.C. Circuit Opinion (Dec. 6, 2024)

Exhibit B: D.C. Circuit Order Denying Injunction (Dec. 13, 2024)

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alario v. Knudsen,

704 F. Supp. 3d 1061 (D. Mont. 2023) ....................................................................... 6

Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) .................................................................................... 32

Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) .................................................................................................. 27

Ashcroft v. ACLU,

535 U.S. 564 (2002) .................................................................................................. 18

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983) .................................................................................................... 18

Brandenburg v. Ohio,

395 U.S. 444 (1969) ............................................................................................ 16, 24

Brown v. Entertainment Merchants Ass’n,

564 U.S. 786 (2011) ................................................................................ 18, 29, 30, 31

Dennis v. United States,

341 U.S. 494 (1951) .................................................................................................. 23

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .................................................................................................. 24

Elrod v. Burns,

427 U.S. 347 (1976) .................................................................................................. 33

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) .................................................................................................. 26

Grosjean v. American Press Co.,

297 U.S. 233 (1936) .................................................................................................. 27

Harrington v. Purdue Pharma L.P.,

144 S. Ct. 44 (2023) .................................................................................................. 37

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ...................................................................................................... 16

Houston Community College System v. Wilson,

595 U.S. 468 (2022) .................................................................................................. 18

Iancu v. Brunetti,

588 U.S. 388 (2019) .................................................................................................. 26

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) .................................................................................................. 30

TABLE OF AUTHORITIES

(continued)

Page

Klein v. Facebook, Inc.,

580 F. Supp. 3d 743 (N.D. Cal. 2022) ........................................................................ 6

Lamont v. Postmaster Gen.,

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

Landmark Commc’ns, Inc. v. Virginia,

435 U.S. 829 (1978) .................................................................................................. 15

Lucas v. Townsend,

486 U.S. 1301 (1988) ................................................................................................ 11

Matal v. Tam,

582 U.S. 218 (2017) .................................................................................................. 26

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .................................................................................................. 29

Meese v. Keene,

481 U.S. 465 (1987) ...................................................................................... 21, 22, 30

Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue,

460 U.S. 575 (1983) .................................................................................................. 27

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024) .................................................................... 1, 13-14, 17, 28-29

Mt. Healthy City Sch. Dist. v. Doyle,

429 U.S. 274 (1977) .................................................................................................. 31

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .................................................................................................. 21

New York Times Co. v. United States,

403 U.S. 713 (1971) ............................................................................................ 15, 16

Packingham v. North Carolina,

582 U.S. 98 (2017) .................................................................................................... 17

Reed v. Town of Gilbert,

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

Reno v. ACLU,

521 U.S. 844 (1997) ............................................................................................ 25, 30

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) .................................................................................................... 11

Rosenberger v. Rector & Visitors of the Univ. of Va.,

515 U.S. 819 (1995) .................................................................................................. 26

South Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) ........................................................................................... 14-15

TABLE OF AUTHORITIES

(continued)

Page

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

512 U.S. 622 (1994) ............................................................................................ 27, 28

United States v. Stevens,

559 U.S. 460 (2010) .................................................................................................. 18

Vidal v. Elster,

602 U.S. 286 (2024) .................................................................................................. 18

Viereck v. United States,

318 U.S. 236 (1943) .................................................................................................. 20

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

429 U.S. 252 (1977) .................................................................................................. 31

Whitney v. California,

274 U.S. 357 (1927) ................................................................................. 13, 15, 22-24

Williams-Yulee v. Fla. Bar,

575 U.S. 433 (2015) .................................................................................................. 31

Zauderer v. Off. of Disciplinary Couns.,

471 U.S. 626 (1985) .................................................................................................. 32

Statutes

28 U.S.C. § 1254 ............................................................................................................. 4

28 U.S.C. § 1651 ......................................................................................................... 1, 4

Act of June 8, 1938, Pub. L. No. 75-583, 52 Stat. 631 ................................................ 20

Protecting Americans from Foreign Adversary Controlled Applications Act, Pub. L.

No. 118-50, div. H, 138 Stat. 895, 955-60 (2024) ............................. 1, 7-8, 17, 28, 36

Rules

S. Ct. R. 10(c) ............................................................................................................... 12

Other Authorities

Alexander DeConde, Washington’s Farewell, the French Alliance, and the

Election of 1796, Miss. Valley Hist. Rev. 641, 653 (1957) ...................................... 19

Allan Kulikoff, Abraham Lincoln and Karl Marx in Dialogue (2018) ....................... 20

George Washington, Farewell Address (Sept. 19, 1796),

https://www.senate.gov/artandhistory/history/resources/pdf/Washingtons_

Farewell_Address.pdf .............................................................................................. 19

H.R. Rep. No. 75-1381 (1937). ..................................................................................... 20

H.R. Rep. No. 118-417 (2024) ........................................................................................ 7

Letter from Thomas Jefferson to John Garland Jefferson (June 11, 1790),

https://founders.archives.gov/documents/Jefferson/01-16-02-0278 ........................ 20

TABLE OF AUTHORITIES

(continued)

Page

Philip C. Kissam, Alexis de Tocqueville and American Constitutional Law, 59

Maine L. Rev. 42 (2007) ........................................................................................... 20

Zechariah Chafee Jr., Freedom of Speech in War Time, 32 Harv. L. Rev. 932

(1919) ........................................................................................................................ 22

vii

To the Honorable John G. Roberts, Jr., Chief Justice of the United States

and Circuit Justice for the District of Columbia Circuit:

Pursuant to this Court’s Rules 22 and 23 and the All Writs Act, 28 U.S.C.

§ 1651, applicants Brian Firebaugh, Chloe Joy Sexton, Talia Cadet, Timothy Martin,

Kiera Spann, Paul Tran, Christopher Townsend, Steven King, and BASED Politics,

Inc., respectfully request that this Court enjoin the enforcement of the Protecting

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

div. H, 138 Stat. 895, 955-60 (2024), pending this Court’s consideration and

disposition of applicants’ forthcoming petition for a writ of certiorari and any further

proceedings.

INTRODUCTION

Time and again throughout our Nation’s history, this Court has held that the

First Amendment does not allow the suppression of speech because the ideas

expressed are objectionable—or even potentially threatening to our political or social

order. And just last Term, this Court held that “settled principles about freedom of

expression” apply just as fully to social media platforms as any other means of

communication. Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2403 (2024). “Whatever

the challenges of applying the Constitution to ever-advancing technology, the basic

principles of the First Amendment do not vary.” Id.

Yet also last year, Congress enacted the Protecting Americans from Foreign

Adversary Controlled Applications Act (the “Act”). The Act prohibits operation of the

online platform TikTok in the United States as of January 19, 2025 (unless the

company that owns it engages in economically and technologically infeasible

divestiture of its assets). The D.C. Circuit has now upheld that novel and dramatic

legislation, blessing the government’s justification that TikTok poses a nationalsecurity threat. The government admits it has no evidence that any content on the

platform has ever been put to any such nefarious purpose. Ex. A, at 47. But the D.C.

Circuit held it is enough that certain government officials believe the Chinese

Communist Party could, at some undefined point in the future, access the app’s

recommendation system to “interfere with our political system,” “manipulat[e] this

country’s public discourse,” or “amplify[] preexisting social divisions.” Amended

Public Redacted Brief for Respondent 36, 38, 44 (D.C. Cir. July 30, 2024) (“D.C. Cir.

Gov’t Br.”); see also Ex. A, at 42-48.

That decision demands this Court’s review. TikTok is today a quintessential

marketplace of ideas—an “outlet for expression” of all sorts and a “source of

community” for no fewer than 170 million Americans. Ex. A, at 92 (Srinivasan, C.J.,

concurring in part and concurring in the judgment). And the vast majority of the

content that creators and users share on TikTok does not remotely have any

geopolitical implications. United States residents use the app principally to exchange

ideas about daily diversions and activities such as entertainment, health, and

cooking. The platform, of course, also contains social and political content and

increasingly is a medium for discussing current events. Indeed, the majority of

TikTok users under 30 now use the platform to get news, and almost half use the app

specifically to follow politics or political issues. But that just magnifies the freeexpression interests at stake here. The D.C. Circuit’s decision that TikTok can be

shuttered because ideas on that platform might persuade Americans of one thing or

another—even of something potentially harmful to our democracy—is utterly

antithetical to the First Amendment. It also flies in the face of our country’s historical

practices; decades of precedent concerning how to assess regulation of speech that

supposedly threatens national security; and the teachings of this Court’s recent

NetChoice decision.

If the Act is allowed to take effect in January 2025, however, this Court will

lose its ability to grant applicants meaningful relief. Even a temporary shutdown of

TikTok will cause permanent harm to applicants—a representative group of

Americans who use TikTok to speak, associate, and listen—as well as the public at

large. Accordingly, applicants respectfully request that the Court temporarily enjoin

enforcement of the Act to enable them (and TikTok and ByteDance themselves) to

seek certiorari and obtain a disposition on the merits.

To the extent that the Court wishes to minimize that brief delay, it may also

wish to construe this application as a petition for certiorari, grant the petition, and

direct the parties to brief and argue the question whether the Act violates the

Constitution. Taking these actions now would enable the Court to set the case for

argument this Term and the parties and amici to prepare briefs according to a

customary schedule.

OPINIONS BELOW

The D.C. Circuit’s opinion denying the petitions for review (Ex. A) has not yet

been reported in the Federal Reporter but is available at 2024 WL 4996719. The D.C.

Circuit’s order denying a temporary injunction pending Supreme Court review (Ex.

B) is not reported.

JURISDICTION

The court of appeals denied the petitions for review on December 6, 2024. It

denied applicants’ motion for temporary injunction pending Supreme Court review

on December 13, 2024. This Court has jurisdiction under 28 U.S.C. §§ 1254 and 1651.

STATEMENT

Applicants use TikTok to speak, associate, and listen.

TikTok Inc. is an American company that publishes the TikTok app. The

company is ultimately owned by ByteDance Ltd., affiliates of which operate in China.

Ex. A, at 10.

The TikTok app provides a vital communications forum for more than 170

million Americans (and more than one billion people worldwide). Add. to Opening

Brief of Creator Pet’rs 103-105 (D.C. Cir. June 20, 2024) (“D.C. Cir. Add.”). TikTok

allows users to create, publish, view, interact with, and share videos up to ten

minutes long. Id. at 140-43. From dance challenges to book reviews to do-it-yourself

tutorials, TikTok videos address topics as diverse as human thought.

Applicants are just a few of the millions who use TikTok regularly to express

themselves, learn, advocate for causes, share opinions, create communities, and even

make a living.

● Brian Firebaugh, a first-generation rancher and U.S. Marine Corps veteran,

educates the public about agricultural issues, promotes his ranch and

products, and helps the ranching community through charitable endeavors.

D.C. Cir. Add. 18-22.

● Chloe Joy Sexton creates videos about parenting, mental health, and the cookie

business that the platform enabled her to launch. D.C. Cir. Add. 45-47.

● Talia Cadet shares book reviews and promotes Black authors and Blackowned-businesses. D.C. Cir. Add. 9-10.

● Timothy Martin, a football coach, makes sports-commentary videos and

connects with other fans and former athletes. D.C. Cir. Add. 35-36.

● Paul Tran posts information about his skincare company, documents memories

with his daughter, connects with other dads, follows martial arts, and

researches travel and restaurants. D.C. Cir. Add. 73, 76, 78-79.

● Steven King creates humorous content about his daily life and spreads

awareness about LGBTQ pride, self-confidence, and sober living. D.C. Cir. Add.

29-31.

● Kiera Spann advocates for the rights of sexual-assault survivors, shares

information about books, news, and politics, and encourages political and social

advocacy. D.C. Cir. Add. 52-55.

● Christopher Townsend, a U.S. Air Force veteran, shares music he writes and

produces, posts light-hearted videos quizzing people on their biblical

knowledge, and participates in “Conservative Hype House” on TikTok, which

discusses and debates views on current events from a conservative perspective.

D.C. Cir. Add. 63-68.

● And BASED Politics, Inc. is a 501(c)(3) nonprofit organization that seeks to

reach members of Gen Z—particularly users under 25 years old—with social

media content that promotes individual liberty and free markets. Supp. Add.

In Support of Emergency Motion for Injunction Pending Supreme Court

Review 35-37 (D.C. Cir. Dec. 9, 2024) (“D.C. Cir. Supp. Add.”).

The breadth of applicants’ use of the platform underscores TikTok’s distinct identity

as a platform for speech.

Applicants have been far more successful sharing their ideas and finding

community on TikTok than anywhere else. Despite efforts to grow their presence on

other platforms, all of them have far smaller audiences on those other apps. This is

partly attributable to TikTok’s special editing tools and the unique feel of the forum.

It is also because of TikTok’s distinctive recommendation system, which allows

relatively obscure creators to reach millions of viewers if they create interesting

content. Indeed, some applicants have also found the exact same videos perform

substantially better on TikTok than on other platforms. See D.C. Cir. Add. 48-49.

Applicants accordingly believe that changing the ownership or any editorial practices

of TikTok would threaten the vitality or quality of the forum. And courts that have

considered similar questions agree, explaining that there is “no support for the

conclusion that [creators] may simply substitute another social media site in place of

TikTok and achieve the same effect.” Alario v. Knudsen, 704 F. Supp. 3d 1061, 1077

(D. Mont. 2023); see Klein v. Facebook, Inc., 580 F. Supp. 3d 743, 769 (N.D. Cal. 2022)

(similar).

Congress bans TikTok.

Beginning in 2018, the Executive Branch became concerned with what it

characterized as the Chinese government’s potential “influence over TikTok.” Ex. A,

at 11. Years later, Congress turned its sights on the platform as well. One House

report, for example, expressed the worry that the platform could be used to “push

misinformation, disinformation, and propaganda on the American public.” H.R. Rep.

No. 118-417, at 2 (2024).

On April 24, 2024, as part of a broader package dealing with aid to Ukraine

and Israel, President Joseph R. Biden, Jr., signed into law the Foreign Adversary

Controlled Applications Act. The Act bans TikTok (and all other apps ultimately

owned by ByteDance Ltd.) throughout the United States, effective January 19, 2025.

The Act effectuates this ban by prohibiting a “foreign adversary controlled

application” from being made available within the territorial borders of the United

States. See Act § 2(a)(1)(A)-(B). The Act then makes clear that it targets one company:

TikTok. The Act expressly defines “foreign adversary controlled application,” first and

foremost, as any app operated by “TikTok” or its ultimate parent, “ByteDance Ltd.”

Id. § 2(g)(3)(A)(i)-(iii).

Congress’s choices in the Act confirm that Congress targeted only entities that

facilitate core forms of expression. In addition to singling out TikTok itself, the Act

establishes a more general category of “covered compan[ies]” to which it theoretically

applies. Act § 2(g)(2)(A). Even for such companies, the Act applies only to entities that

operate a platform that enables users to “generate, share, and view text, images,

videos, real-time communications, or similar content” and have more than one million

monthly active users during a specified time period. Id. § 2(g)(2)(A)(i). At the same

time, the Act excludes from that catchall definition of “covered company” any entity

that offers any app “whose primary purpose is to allow users to post product reviews,

business reviews, or travel information and reviews.” Id. § 2(g)(2)(B).

The only way the Act allows TikTok to continue publishing in the United States

beyond early 2025 is through a “qualified divestiture.” Under this exemption,

TikTok’s owners would have to sell the platform within 270 days to an entity

approved by the President, following an unspecified “interagency process.” Act

§ 2(a)(1)(A), (a)(2)(A), (g)(6). The President would also have to ensure that any

divested successor does not maintain “any operational relationship” between its U.S.

operations and any “formerly affiliated entities that are controlled by a foreign

adversary,” including any “cooperation with respect to the operation of a content

recommendation algorithm,” like the one used by TikTok. Id. § 2(g)(6).

Penalties for violating the Act are severe. The Act subjects any entity (such as

an app store or webhost) that facilitates access to TikTok to a penalty of $5,000

“multipl[ied] … by the number of users within the land or maritime borders of the

United States” who access, maintain, or update the app as a result of the violation.

Act § 2(d)(1)(A). Given TikTok’s approximately 170 million users in the United States,

such a fine could be as high as $850 billion.

Proceedings below

1. Pursuant to the Act’s judicial-review provision, Act § 3(a)-(b), applicants

filed petitions for review in the D.C. Circuit asserting that the Act violates the First

Amendment. The court of appeals consolidated those petitions with a petition filed by

TikTok Inc. and ByteDance Ltd. In defending the Act, the government advanced two

supposedly compelling interests: (i) preventing the Chinese government from covertly

manipulating the app’s content at some future point to “serve its own ends” regarding

our elections or other political and social issues; and (ii) to address “data-collection

concerns” that could arise if the Chinese government obtained user information from

the platform. See Ex. A, at 42, 54.

Meanwhile,

the

2024

Presidential

election

transpired.

Despite

the

government’s purported national-security concerns, both Vice President Kamala

Harris and former President Donald Trump actively campaigned on TikTok—thereby

implicitly encouraging Americans to use the app. Other candidates for federal office

did so as well.

2. On December 6, 2024, the court of appeals denied the petitions for review.

a. The majority first rejected the government’s “ambitious argument” that the

case “does not implicate the First Amendment at all,” reasoning that the Act “singles

out TikTok, which engages in expressive activity, for disfavored treatment.” Ex. A, at

25-26. The majority then declined to decide whether the Act is subject to strict

scrutiny or intermediate scrutiny. Id. at 27. It recognized that the government’s

content-manipulation justification for the law “reference[d] the content of TikTok’s

speech.” Id. at 30. But it claimed that it could also “conceive of reasons intermediate

scrutiny may be appropriate under these circumstances.” Id. at 31. It therefore

“assume[d] without deciding” that strict scrutiny applies. Id.

Explicitly “[d]efer[ring] to the Government’s national-security assessment,”

the court then held that the Act “clears th[e] high bar” of strict scrutiny. Ex. A, at 32.

The court first rejected applicants’ argument that the government’s contentmanipulation interest is an impermissible “effort to ‘control the flow of ideas to the

public.’” Id. at 44 (quoting Lamont v. Postmaster Gen., 381 U.S. 301, 306-07 (1965)).

It then determined that the Act is a narrowly tailored means of furthering both the

government’s content-manipulation and data-collection interests because it

“addresse[s] precisely the harms it seeks to counter and only those harms.” Id. at. 48.

The majority rejected applicants’ arguments that there were less restrictive

alternatives, id. at 48-55, and that the Act was overinclusive because it regulated too

much speech, id. at 55-57.1

b. Chief Judge Srinivasan concurred in part and concurred in the judgment.

He acknowledged that, under the Act, the “users who create and consume content on

the TikTok platform … face the prospect of the app becoming unavailable to them.”

Ex. A, at 75. But he declined to subject the Act to strict scrutiny. Id. at 66. Instead,

Chief Judge Srinivasan asserted, for two reasons, that intermediate scrutiny should

apply instead. First, he noted that Congress has previously enacted, and the D.C.

Circuit has upheld, certain “restrictions on foreign control of mass communications

channels,” including radio and wired transmission lines. Id.; see id. at 66-71. Second,

he posited that the government’s “covert content manipulation” interest—although

grounded in a concern that China might “secretly shape the content fed to Americans”

and therefore “self-evidently connected to speech”—was nevertheless “content

neutral.” Id. at 75-78 (emphasis added).

1 The court stated that it reached these conclusions based “solely on the []redacted,

public filings in the case,” without “rely[ing] on” any classified materials submitted

by the government. Ex. A, at 64-65 & n.11. This case accordingly comes to this Court

on the same terms.

Applying intermediate scrutiny, Chief Judge Srinivasan concluded that the

Act passed muster under both of the government’s asserted interests. Like the

majority, he stressed that he believed the court’s “duty to accord deference” to the

government’s determinations was especially “important” in light of the “national

security” implications involved. Ex. A, at 86.

Chief Judge Srinivasan closed by recognizing that the court’s decision would

affect “[s]ome 170 million Americans” who “use TikTok to create and view all sorts of

free expression and engage with one another and the world.” Ex. A, at 91. But he

concluded that “precisely because of the platform’s expansive reach,” the

government’s reasons for banning it were legitimate. Id. at 91-92.

3. Applicants then sought an injunction pending appeal in the D.C. Circuit. On

December 13, 2024, the D.C. Circuit denied applicants’ motion. The D.C. Circuit

explained that it was doing so given “the interest in preserving the Supreme Court’s

discretion to determine whether and to what extent to grant any interim injunctive

relief while that Court considers a petition for a writ of certiorari.” Ex. B, at 2.

ARGUMENT

An applicant for an injunction pending this Court’s review must establish (1)

a likelihood of certiorari; (2) a “fair prospect that five Justices will conclude that the

case was erroneously decided below”; and (3) that “irreparable harm will likely result

from the denial of equitable relief.” Lucas v. Townsend, 486 U.S. 1301, 1304 (1988)

(Kennedy, J.); see Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 16

(2020) (per curiam). The Court also “balance[s] the equities to determine whether the

injury asserted by the applicant outweighs the harm to other parties or to the public.”

Lucas, 486 U.S. at 1304; see Roman Catholic Diocese of Brooklyn, 592 U.S. at 16. Each

requirement is satisfied here.

The Court is likely to grant certiorari to determine whether the Act

violates the First Amendment.

The Court will very likely grant certiorari to review applicants’ claim that the

Act violates the First Amendment. The Act singles out a specific and “immensely

popular” forum for speech, Ex. A, at 38, and bans its owners from operating it in this

country, based largely on the potential that the platform could be used to present

ideas to Americans that favor a foreign country’s geopolitical interests. Whether such

a restriction on speech can withstand First Amendment scrutiny is “an important

question of federal law that has not been, but should be, settled by this Court.” S. Ct.

R. 10(c).

1. The Act may be the most sweeping restriction of speech and association ever

enacted in this country. The speech on TikTok runs the gamut from core political

speech—including applicant Spann’s advocacy against sexual assault, applicant

Townsend’s conservative content about news and religion, and applicant BASED

Politics’ material seeking to promote free-market ideas to Gen Z Americans—to more

lighthearted fare. See supra at 4-6. Some 170 million Americans use the app. If the

Act takes effect, they will all lose the ability to communicate using TikTok. Ex. A, at

18. For many of those Americans, including applicants here, that loss will be

devastating to their livelihoods, their communities, and their ability to express

themselves and hear the ideas of their choosing.2

Whether the Act’s sweeping ban of this vast array of free expression conflicts

with the First Amendment is a fundamental legal question warranting certiorari.

This Court has long policed the extent to which government may suppress speech

based on supposed harms to the national welfare. Indeed, the Court’s modern First

Amendment jurisprudence emerged from a case in which California sought to

suppress the speech of Americans because it was made in concert with a foreign

adversary seeking to “spread[] communist propaganda” and organize “a revolutionary

class struggle to conquer the capitalist state”—that is, America. See Whitney v.

California, 274 U.S. 357, 363-65 (1927). The tradition that comes from those cases—

originating in Justice Brandeis’s pathmarking separate opinion in Whitney, but soon

enshrined into binding precedent—is one that permits even speech that might

potentially injure American geopolitical interests. It is a tradition that realizes that

America’s true interests are served by “the power of reason as applied through public

discussion,” “eschew[ing] silence coerced by law—the argument of force in its worst

2 Although the Act contains a divestiture provision, the court of appeals recognized

that “the Government does not rebut TikTok’s argument that 270 days is not enough

time for TikTok to divest.” Ex. A, at 46. And even if TikTok could be divested, the Act

would still deprive applicants of the ability to associate with TikTok Inc., the

publisher and editor of their choice. See Moody v. NetChoice, LLC, 144 S. Ct. 2383,

2405 (2024) (“Like the editors” of books and magazines, “the major social-media

platforms are in the business ... of combining ‘multifarious voices’ to create a

distinctive expressive offering.” (citation omitted)). Accordingly, there can be no doubt

that the Act is functionally a ban of the speech in which applicants wish to engage.

form.” Id. at 375-76 (Brandeis, J., concurring). And it is a tradition that has endured

despite periodic arguments by the government that some new technology or another

is so dangerous as to warrant a departure from those principles. This Court’s review

is essential to determine whether that First Amendment tradition should endure—

as Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024), and other cases suggest it

should—in the age of the internet and social media.

Subsidiary doctrinal questions also warrant the Court’s review. The D.C.

Circuit claimed there is “[n]o Supreme Court case” dictating whether the First

Amendment requires strict scrutiny when the government seeks to ban speech based

on “a foreign adversary’s ability to manipulate content seen by Americans.” Ex. A, at

25. Expressing doubt as to how to answer that question, two of the three members of

the panel below assumed that strict scrutiny applies here. Id. The third judge held

that only intermediate scrutiny applies, asserting that there is a difference between

banning speech that may advance an adversary’s “interests” and speech that may

advance its “views.” Id. at 80 (Srinivasan, C.J., concurring in part and concurring in

the judgment). And one Justice of this Court recently flagged a related question as

deserving of the Court’s attention: “What if the platform’s corporate leadership

abroad makes the policy decisions about the viewpoints and content the platform will

disseminate?” NetChoice, 144 S. Ct. at 2410 (Barrett, J., concurring).

Also worthy of certiorari is the court of appeals’ treatment of the “national

security” packaging of the government’s interests here. Rather than applying the

traditional “demanding and rarely satisfied” strict-scrutiny standard, see South Bay

United Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (per curiam), the

D.C. Circuit applied a “deferent[ial]” version of that standard, Ex. A, at 32. It insisted

that strict scrutiny should have less bite because the Act is designed “to counter a

well-substantiated national-security threat posed by the [People’s Republic of

China]”; and because Executive Branch officials “conducted dozens of meetings” and

“considered scores of documents on these issues.” Id. at 32, 51-52. The court of appeals

therefore found it inconsequential that the government “lacks specific evidence that

shows the PRC has in the past or is now coercing TikTok into manipulating content

in the United States.” Id. at 47. Instead, the panel accepted as sufficiently serious the

government’s assertion that “the PRC has positioned itself to manipulate public

discourse” on TikTok if it so chooses at some unknown point in the future. Id. at 43.

And the panel accepted uncritically the government’s assertions about both the

nature of this and other concerns, as well as whether less-restrictive means would

sufficiently address those supposed ills. See, e.g., id. at 40 (declining to “second guess”

the government’s “considered judgment”).

Over and over, however, this Court has explained that a national-security

justification for suppressing speech “must not be remote or even probable; it must

immediately imperil.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 845

(1978); see also N.Y. Times Co. v. United States, 403 U.S. 713, 730 (1971) (risk must

be “direct, immediate, and [threaten] irreparable damage”). Or, in the words of

Justice Brandeis, “no danger flowing from speech” justifies its suppression on

national-security grounds “unless the incidence of the evil apprehended is so

imminent that it may befall before there is opportunity for full discussion.” Whitney,

274 U.S. at 377 (Brandeis, J., concurring). What’s more, merely affecting “public

discourse,” Ex. A, at 43, is hardly the same as triggering “war” or inciting “serious

violence” aimed at overthrowing our government—the national-security harms that

this Court’s current doctrine condones as reasons for censoring speech. N.Y. Times

Co., 403 U.S. at 726-27 (Brennan, J., concurring); Whitney, 274 U.S. at 377 (Brandeis,

J., concurring); see also Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“imminent

lawless action”).

The D.C. Circuit claimed that Holder v. Humanitarian Law Project, 561 U.S.

1 (2010), supported its holding that the speculative, future threat of “covert content

manipulation” was enough to satisfy strict scrutiny. Ex. A, at 33, 38; see also id. at 86

(Srinivasan, C.J., concurring in part and concurring in the judgment). But that case

was strikingly different from this one. It concerned an exceedingly “narrow[]” speech

prohibition designed to avert “terrorism”—again, a harm rooted in violent conduct,

not mere political or other ideas. Holder, 561 U.S. at 35. And even in that context,

Congress determined that the law was necessary to “prevent imminent harms,” not

speculative risks. Id. (emphasis added). Holder itself thus cuts against the

government’s arguments here. But if Holder somehow upended this Court’s

longstanding precedent in this area, that declaration should come from this Court,

not a court of appeals.

2. There is no plausible argument against granting certiorari in this particular

case. Congress vested judicial review of the Act exclusively in the D.C. Circuit. See

Act § 3. So there is no possibility of percolation in any other jurisdiction. Below, the

government joined issue on the merits and did not raise any jurisdictional or other

procedural concern with applicants’ petitions for review. And, as Chief Judge

Srinivasan recognized, the creator applicants here have distinct First Amendment

interests from TikTok and ByteDance, such that the Court should grant review of

both applicants’ and the companies’ cases. Ex. A, at 75. In particular, applicants “face

the prospect of the app becoming unavailable to them” if the Act is not enjoined. Id.

And the government cannot seriously deny that applicants, who are all indisputably

American citizens seeking to speak in America to other Americans, have First

Amendment rights.

II.

There is a fair prospect of reversal.

If the Court grants certiorari, there is a fair prospect that five Justices will

conclude that the Act violates applicants’ First Amendment rights. The First

Amendment gives Americans the right to express themselves; to associate with

editors and publishers of their choice; and to receive communications from others,

including speakers around the world. Those principles apply the same to social-media

platforms—the “modern public square”—as to older forms of media. Packingham v.

North Carolina, 582 U.S. 98, 107 (2017); see also NetChoice, 144 S. Ct. at 2410. To

justify shutting down one of the most popular social-media platforms in America, the

government must show that its regulation is consistent with First Amendment

history and doctrine. The D.C. Circuit erred in holding that the government satisfied

this burden.

The Act contravenes our Nation’s history and tradition of

allowing Americans to speak and listen even when foreign

adversaries are involved.

“[L]ong settled and established practice is entitled to great weight” when

applying the First Amendment. Houston Community College System v. Wilson, 595

U.S. 468, 474-77 (2022) (citation omitted). As relevant here, “the First Amendment

means that government has no power to restrict expression because of its message,

its ideas, its subject matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564, 573

(2002) (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983))

(internal quotation marks omitted). Thus, without “persuasive evidence that a novel

restriction on content is part of a long (if heretofore unrecognized) tradition of

proscription,” the government “may not revise the ‘judgment of the American people,’

embodied in the First Amendment, ‘that the benefits of its restrictions on the

Government outweigh the costs.’” Brown v. Entertainment Merchants Ass’n, 564 U.S.

786, 792 (2011) (quoting United States v. Stevens, 559 U.S. 460, 470 (2010) (alteration

adopted)); see Vidal v. Elster, 602 U.S. 286, 301 (2024).

The government cannot carry that burden here; indeed, the Act is anathema

to this Nation’s historical tradition of free expression. In particular, this country has

no history or tradition of banning speech of Americans because of concerns that

foreign governments might benefit from it or add their own voice to it. To the contrary,

Americans have long collaborated with foreigners to speak in this country, including

at times directly to challenge our democratic values. What’s more, the federal

government has never interfered with Americans’ ability to hear ideas from abroad,

even when the purveyors of those ideas intended to influence our social discourse or

elections, or sought to undermine our political system.

We start at the beginning. In 1796, the French ambassador to the United

States sought to sway the election to Thomas Jefferson, publishing three letters in a

Philadelphia newspaper warning that only Jefferson’s election could avoid war with

France. See Alexander DeConde, Washington’s Farewell, the French Alliance, and the

Election of 1796, Miss. Valley Hist. Rev. 641, 653 (1957). A leading Federalist

spokesman responded that “there never was so barefaced and disgraceful an

interference of a foreign power in any free country.” Id. at 653.

George Washington delivered his historic Farewell Address against the

backdrop of this French electioneering. But when he addressed “the insidious wiles

of foreign influence,” he did not call to ban the foreign speech or to punish the

Americans who facilitated it. George Washington, Farewell Address 20 (Sept. 19,

1796),

https://www.senate.gov/artandhistory/history/resources/pdf/Washingtons_

Farewell_Address.pdf. Instead, he urged vigilance, asking the American people “to be

constantly awake” to foreign influence as “one of the most baneful foes of republican

government.” Id. at 20-21.

Our country’s tolerance of foreign speech on issues striking at the core of our

democratic ideals persisted throughout the nineteenth century. The Founding

generation continued to import and debate foundational political texts such as

Montesquieu’s The Spirit of the Laws, Voltaire’s Essay on Universal History, and

Locke’s Two Treaties on Government—not to mention legal treatises such as

Blackstone’s Commentaries and Hale’s Pleas of the Crown. See, e.g., Letter from

Thomas

Jefferson

John

Garland

Jefferson

(June

11,

1790),

https://founders.archives.gov/documents/Jefferson/01-16-02-0278. Bookstores sold

the Communist Manifesto, originally published in 1848. See Allan Kulikoff, Abraham

Lincoln and Karl Marx in Dialogue 1 (2018). And residents throughout the land read

and considered the critique of our young country written by a Frenchman, Alexis de

Tocqueville, sent here by the French government to study, and perhaps influence, our

democracy. See Philip C. Kissam, Alexis de Tocqueville and American Constitutional

Law, 59 Maine L. Rev. 36, 42 (2007).

As the United States became a world power in the twentieth century, it

continued to follow the course charted by Washington: It took steps to ensure that

Americans could understand and resist foreign advocacy, but did not ban that

advocacy outright. During the run-up to World War II, for example, the Foreign Agent

Registration Act (FARA) of 1938 aimed to counter Nazi and communist propaganda

seeking to “influence the external and internal policies of this country.” H.R. Rep. No.

75-1381, at 2 (1937). The Act “requir[ed] registration of agents for foreign principals”

so as “to identify agents of foreign principals who might engage in subversive acts or

in spreading foreign propaganda,” Viereck v. United States, 318 U.S. 236, 241 (1943).

See Act of June 8, 1938, Pub. L. No. 75-583, 52 Stat. 631. But FARA did not prohibit

anyone—American or foreign—from speaking on any topic, so long as the proper

disclosures were made.

The handful of legal controversies that have arisen with regard to foreign

adversary speech in the United States only underscore our tradition of tolerance. One

key case is Lamont v. Postmaster General, 381 U.S. 301 (1965). There, a federal

statute, enacted during the Cold War, required individuals wishing to receive

“communist political propaganda” from foreign enemy nations to affirmatively

request its delivery from the Post Office. Id. at 304. In the government’s brief,

Solicitor General Archibald Cox “claim[ed] no support for this statute in large public

interests such as would be needed to justify a true restriction upon freedom of

expression or inquiry.” Br. of Appellee at 10, Lamont v. Postmaster Gen. (U.S. No. 64491); see also Lamont, 381 U.S. at 309 (Brennan, J., concurring) (noting this

concession). Instead, the government argued merely that requiring Americans to

request the delivery of foreign propaganda was a minimal and acceptable burden on

their First Amendment right to receive it. The Court sharply rejected even that

modest submission, reasoning that imposing an “affirmative obligation” would be

“almost certain to have a deterrent effect” on those who wish to receive foreign ideas.

Id. at 307. Such a deterrent effect, the Court concluded, “is at war with the

‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by

the First Amendment.” Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254,

270 (1964)).

Meese v. Keene, 481 U.S. 465 (1987), reflects the same disdain for suppression

of foreign speech. The portion of FARA at issue in that case required films produced

by foreign governments to be identified as “political propaganda.” Id. at 468. A

California politician who wished to exhibit “three Canadian motion picture films”

produced by a state-run film company argued that the statute’s labeling requirement

violated the First Amendment. Id. at 467. While rejecting that challenge, the Court

stressed that Congress had not sought to “prohibit, edit, or restrain” the films—much

less discriminated against foreign speech based on any particular viewpoint. Id. at

480; see also Br. for Appellants at 37, Meese v. Keene (U.S. No. 85-1180) (stressing

that the government “has not prevented appellee from exhibiting these films in any

way”). Instead, the law “simply required the disseminators of such material to make

additional disclosures that would better enable the public to evaluate the import of

the propaganda.” 481 U.S. at 480.

There is one blip in this historical tradition of requiring at most disclosure of

the source of foreign speech. At the height of the First Red Scare, some Americans

were prosecuted for acting as a mouthpiece of a foreign enemy’s cause. Zechariah

Chafee Jr., Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 962-73 (1919). The

most notable example was California’s prosecution of Anita Whitney. Whitney

belonged to an organization that affiliated with “the Communist International of

Moscow” and “adhered to the principles of Communism laid down in the Manifesto of

the Third International at Moscow.” Whitney v. California, 274 U.S. 357, 363, 365

(1927). Whitney engaged in public advocacy designed to “spread[] communist

propaganda” and “accomplish[] industrial or political changes.” Id. at 371. This Court

sustained Whitney’s conviction as consistent with the First Amendment, reasoning

that speech tending to “endanger the foundations of organized government” could be

punished. Id.

But Justice Brandeis, joined by Justice Holmes, wrote separately to explain

that the First Amendment actually protected Whitney’s speech. 274 U.S. at 372. His

concurrence resonates with Washington’s parting words: “Those who won our

independence,” he explained, “believed that the final end of the state was to make

men free to develop their faculties, and that in its government the deliberative forces

should prevail over the arbitrary.” Id. at 375. So “they knew that … it is hazardous

to discourage thought, hope and imagination; that fear breeds repression; that

repression breeds hate; that hate menaces stable government; that the path of safety

lies in the opportunity to discuss freely supposed grievances and proposed remedies;

and that the fitting remedy for evil counsels is good ones.” Id. Accordingly, Justice

Brandeis posited that the First Amendment protects all speech—even speech in

conjunction with foreign adversaries—“unless the incidence of the evil to be

apprehended is so imminent that it may befall before there is opportunity for full

discussion.” Id. at 377. That class of protected speech includes “advocat[ing] the

desirability of a proletarian revolution by mass action at some date necessarily far in

the future.” Id. at 379.

There is no question that Justice Brandeis’s view has prevailed in the court of

history—as well as in courts of law. The Court has observed that “there is little doubt

that subsequent opinions have inclined toward the Holmes-Brandeis rationale,”

Dennis v. United States, 341 U.S. 494, 507 (1951), and over fifty years ago described

the Whitney majority’s First Amendment holding as “thoroughly discredited,”

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). More recently, the Court included the

case among those that had been squarely overruled. See Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215, 418 (2022).

The Act, and the D.C. Circuit’s defense of it, is a sharp break from our history

and tradition—and an unfortunate echo of Whitney. Unlike FARA, both in its original

form and in the provisions upheld in Keene, the Act does not seek to address the

potential harms of foreign adversary speech through disclosure. Instead, it seeks to

ban that speech outright. The Act thus goes even further than the law invalidated in

Lamont as “at war with” the First Amendment—indeed, it requires the precise

suppression of speech that Solicitor General Cox acknowledged that the government

could not defend. And neither President Washington nor Justice Brandeis would have

recognized this Act—which suppresses foreign ideas and “discourage[s] thought”—as

consonant with the American tradition. Whitney, 274 U.S. at 375 (Brandeis, J.,

concurring). In short, the court of appeals’ blank check for the government to police

“a foreign adversary’s ability to manipulate content seen by Americans,” Ex. A, at 25,

is itself foreign to American history.

It is no answer to point, as Chief Judge Srinivasan did in his separate opinion

below, to our tradition of regulating foreign ownership of radio stations and wired

transmission lines. Ex. A, at 67-71. As the Chief Judge himself acknowledged, most

of those examples relate to the broadband spectrum. Id. at 70. This Court has

“recognized special considerations for regulation” of that medium—namely, the

scarcity of channels available and the resulting need for licensing. Id. (quoting Reno

v. ACLU, 521 U.S. 844, 868 (1997)). The only additional example provided in the

separate opinion below—“authorizations for wired transmission lines”—not only

reflects similar scarcity concerns, but also does not concern a direct regulation of

speech and so does not bear on the First Amendment historical inquiry. Id.

The bottom line is this: Never before has this Court held that the speech of a

foreign entity (or even a foreign government) can be censored on the ground that it

might influence our political or policy debates. Much less is there any heritage of

suppressing the speech of Americans merely because they are collaborating with

foreign entities. The D.C. Circuit’s decision has no basis in history or tradition.

The Act fails strict scrutiny.

For similar reasons, the Act fails the demanding First Amendment scrutiny

this Court’s precedents require of the speech ban here.

1. The D.C. Circuit was correct to apply strict scrutiny to the Act’s ban on

TikTok. In fact, there are multiple doctrinal reasons why the most demanding

scrutiny applies in this case.

First, the law discriminates based on the content and viewpoint of the speech

on TikTok. The government defended the statute below based on the purported

concern that allowing TikTok to operate could allow Chinese agents to “manipulat[e]

this country’s public discourse”; “amplify[] preexisting social divisions”; or even

curate content to “advance [China’s] own interests.” D.C. Cir. Gov’t Br. 38, 44, 67.

These proffered justifications are overtly viewpoint-discriminatory. A law

regulating speech discriminates based on viewpoint “when the specific motivating

ideology or the opinion or perspective of the speaker is the rationale for the

restriction.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829

(1995). That is true regardless of whether the perspective the statute aims to squelch

might be “divisi[ve]” or “in direct contravention of U.S. interests,” as the government

charged below. D.C. Cir. Gov’t Br. 44, 67. If anything, such a rationale—whether

proffered during the Red Scare, the Cold War, or today—only confirms the viewpointbased aims of the statute. See, e.g., First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765,

791 & n.31 (1978) (discussing cases decided during Red Scare); Matal v. Tam, 582

U.S. 218, 247 (2017) (plurality opinion) (“[F]ree speech would be endangered” if the

courts “permit[] the suppression of any speech that may lead to political or social

‘volatility.’”).3

Second, the Act singles out a distinctive medium and forum. When laws target

specific media and fall upon “only a small number” of publishers, they are subject to

3 Chief Judge Srinivasan reached a different conclusion on the theory that the Act

targets speech that could “advance China’s interests—not its views.” Ex. A, at 80. But

this Court has never drawn any such distinction. See, e.g., Iancu v. Brunetti, 588 U.S.

388, 394 (2019) (finding law viewpoint-based because it “distinguishes between two

opposed sets of ideas: those aligned with conventional moral standards and those

hostile to them; those inducing societal nods of approval and those provoking offense

and condemnation”). Even if there were some meaningful difference between a

speaker’s interests and a speaker’s views, any law that targets speech based on its

“content” is likewise subject to strict scrutiny. See Reed v. Town of Gilbert, 576 U.S.

155, 166 (2015). And speech that supposedly favors China’s interests is quite clearly

a content-based category, just like speech that favors the interests of the Libertarian

Party or the Sierra Club would be.

strict scrutiny. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 659-60 (1994) (“Turner

I”). In Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460

U.S. 575 (1983), for example, this Court applied strict scrutiny to a law “target[ing]

individual publications” for special taxation. Id. at 585, 592-93. Similarly, in

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987), the Court applied

strict scrutiny to a selective tax regime that singled out particular media outlets (even

without “burden[ing] the expression of particular views by specific magazines”). Id.

at 230-31. Both laws were suspect because their structure—identifying specific

publishers for unfavorable tax treatment—risked suppressing certain ideas. Turner

I, 512 U.S. at 660; see also Grosjean v. American Press Co., 297 U.S. 233, 241 (1936)

(invalidating state law imposing tax on publications having weekly circulation of over

20,000 copies).

So too here. The Act singles out a category of speech platforms—those with a

minimum number of users that permit them to “generate, share, and view text,

images, videos, real-time communications, or similar content”; those owned by a

company that “present[s] a significant threat to the national security of the United

States”; and those whose owner does not operate an app with a “primary purpose” of

hosting reviews, see Act § 2(g)(2)(A)-(B)—for disfavored treatment. And within that

category, it isolates a single publisher, TikTok, for a more extreme form of disfavor:

an outright ban. In doing so, the Act also singles out a specific group of content

creators—applicants and other individuals in America who wish to post on TikTok—

and prohibits them from engaging in the distinctive form of communal expression

that is most important to them.4

2. The D.C. Circuit doubly erred in holding that the law satisfied strict

scrutiny.

a. The court’s first error was in crediting the government’s covert-contentmanipulation interest at all. The D.C. Circuit blessed the interest on the ground that

it prevents the “distort[ion] of free speech on an important medium of

communication.” Ex. A, at 43. But just last Term, the Court held that “correct[ing]

the mix of speech that the major social-media platforms present” was not a “valid, let

alone substantial,” interest. NetChoice, 144 S. Ct. at 2407. That conclusion applies

equally here where the government’s ideological opponent is TikTok, with its alleged

connections to the Chinese government, rather than the “West Coast oligarchs” who

served as the objects of state regulation in NetChoice. Id. Regardless of whether

China has First Amendment rights to speak in this country, TikTok is an American

company, and applicants and other Americans have a right to speak, associate, and

listen on the speech platform—with the publication and editorial practices—of their

choice.

4 The D.C. Circuit majority suggested in dicta that strict scrutiny is not required

on this basis because TikTok is “the only global platform of its kind that has been

designated by the political branches as a foreign adversary controlled application.”

Ex. A, at 29 (quoting Turner I, 512 U.S. at 661). That reasoning does not deny that

Congress singled out TikTok; instead, it tries to justify that congressional action.

That is a different step of strict scrutiny that we address below.

It adds nothing to the analysis to say that the interest here is about “covert”

manipulation of content. Cf. Ex. A, at 43. The Constitution protects anonymous

speech. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); see also id. at

367 (Thomas, J., concurring in the judgment) (“I must conclude that both AntiFederalists and Federalists believed that the freedom of the press included the right

to publish without revealing the author’s name.”). In certain circumstances, Congress

can require disclosure. See infra at 32. But it cannot use the anonymous nature of a

speaker or editor as a reason to ban speech entirely. So if the First Amendment bars

the government from legislating to alter the mix of speech on the platform, it equally

bars the government from shuttering TikTok because of any curation that may

happen “behind the scenes.” NetChoice, 144 S. Ct. at 2438 (Alito, J., concurring in the

judgment).

At bottom, the government seems to request special solicitude for its regulation

of social-media sites because the complexity and covertness of algorithms means that

those sites are more difficult to police than the media of old. But “even as one

communications method has given way to another,” the courts’ “settled principles

about freedom of expression” have never wavered. NetChoice, 144 S. Ct. at 2403; see

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011). That is why, decades ago, this

Court rejected the government’s argument that special First Amendment rules were

necessary to ensure the proper development of the internet, holding that the “interest

in encouraging freedom of expression in a democratic society outweighs any

theoretical but unproven benefit of censorship.” Reno v. ACLU, 521 U.S. 844, 885

(1997). That is why the Court rejected attempts to regulate violent video games,

likening their content to scenes from Homer’s The Odyssey and rejecting the

argument that the interactivity of such games presented new and “special problems.”

Brown, 564 U.S. at 796-98. And it is why, several decades earlier, the Court declined

to credit the government’s argument that “motion pictures possess a greater capacity

for evil … than other modes of expression,” concluding that movies’ supposed

“capacity for evil … does not authorize substantially unbridled censorship.” Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). Whatever the merits of the

government’s fears about new technology, the First Amendment analysis remains the

same.

b. The D.C. Circuit also erred in how it applied the strict-scrutiny test to the

government’s asserted interests.

As to the covert-content-manipulation rationale, the court of appeals asserted

that “covert manipulation of content is not a type of harm that can be remedied by

disclosure.” Ex. A, at 54. But the D.C. Circuit provided zero support for that assertion.

And the FARA regime, which requires disclosure to prevent Americans from being

misled by foreign agents, indicates the opposite. Supra at 20-21; see, e.g., Keene, 481

U.S. at 480. The court of appeals gave no reason to reject that traditional remedy—

which would address the “secret manipulation” problem by making clear to

Americans the government’s view that the content they consumed on TikTok could

potentially be subject to manipulation—other than the government’s say-so.

As to the government’s separate data-collection rationale, that alone cannot

save the Act. The government does not attempt to demonstrate that Congress would

have passed the Act solely for data-collection reasons, so the Act must be invalidated

if the content-manipulation rationale is improper. See Mt. Healthy City Sch. Dist. v.

Doyle, 429 U.S. 274, 287 (1977); cf. Village of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265-66 (1977). Indeed, “the government makes no argument that

the Act’s application to TikTok should be sustained based on the data-protection

interest alone.” Ex. A, at 78 (Srinivasan, C.J., concurring in part and concurring in

the judgment).

In any event, the data-security rationale cannot sustain the Act. The court of

appeals acknowledged that the Act subjects TikTok to different treatment than other

supposed “foreign adversary controlled platforms,” which raise the same potential

data-security threats but are subject to less onerous regulation. Id. at 56. Yet the

court held that fact irrelevant because TikTok was the most “pressing” cause for

concern. Id. The court did not point to any evidence that—separate from its

illegitimate concern about the content hosted on TikTok—Congress actually saw the

data-collection threat from this platform as more severe. See id. Without such

evidence, the law’s “underinclusivity raises a red flag.” Williams-Yulee v. Fla. Bar,

575 U.S. 433, 449 (2015). That is, “[u]nderinclusiveness raises serious doubts about

whether the government is in fact pursuing the interest it invokes, rather than

disfavoring a particular speaker or viewpoint.” Brown, 564 U.S. at 802.

Furthermore, the D.C. Circuit never explained why compelled disclosure to

TikTok users of the potential data-collection risks would not address any problem the

government is actually seeking to address. Disclosure is the typical remedy when it

comes to potential consumer harms. Zauderer v. Off. of Disciplinary Couns., 471 U.S.

626, 651 (1985); see Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18, 31 (D.C. Cir.

2014) (Kavanaugh, J., concurring in the judgment) (“The Government has long

required commercial disclosures to prevent consumer deception or to ensure

consumer health or safety.”). So too here: To the extent Americans are choosing to

share sensitive data with the app, a proper warning would presumably motivate

anyone genuinely at risk of something like “corporate espionage” to take any

necessary steps to protect themselves. Ex. A, at 39. That would make the strong

medicine of a governmental ban for all users unnecessary.5

III.

The equities overwhelmingly favor preventing the Act from going into

effect until this Court determines whether it is constitutional.

1. Applicants will be irreparably harmed in multiple respects if the Act’s ban

on TikTok is allowed to take effect before this Court’s review.

5 The D.C. Circuit’s holding that the Act also legitimately bans the ByteDance

app CapCut, which applicants and other creators use to edit their videos,

underscores how seriously the court erred. The court of appeals reasoned that

“petitioners fail to demonstrate that neither of the Government’s two national

security concerns implicate CapCut.” Ex. A, at 56. It is the government’s burden,

however, not challengers’, to show its concerns apply to each expressive platform

the Act bans. And that’s to say nothing of the government’s duty to show no less

restrictive alternatives are available.

a. Shuttering TikTok, even briefly, will irreparably harm applicants’ ability to

speak and listen on the platform. The “loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373 (1976).

If the Act takes effect on January 19, such injuries will immediately occur here.

For example, shuttering TikTok will prevent applicants from being able to speak

about President Trump’s inauguration—which takes place the day after the Acts sets

for the ban to take effect—and learn from others they follow on the platform.

Applicants Spann, Townsend, and BASED Politics will be unable to discuss the new

presidential administration’s policies—a subject that has been and will continue to

be discussed on TikTok extensively. D.C. Cir. Supp. Add. 23-24, 27-28, 36; see Elrod,

427 U.S. at 374 n.29 (“The timeliness of political speech is particularly important.”).

BASED Politics will be unable to comment contemporaneously on actions the Trump

administration takes (or refrains from taking), such as the implementation of tariffs,

follow-through on threats related to the release of hostages in the Middle East, cuts

the Department of Government Efficiency may make, confirmation of nominees to

cabinet positions, and the potential abolition of the Department of Education, among

others it cannot specifically foresee. D.C. Cir. Supp. Add. 36-37. Martin will be unable

to cover the NFL conference championships or the Super Bowl. Id. at 15. And Cadet

will be unable to share her upcoming book talks. Id. at 2-3; see also id. at 7

(Firebaugh’s plans to support ranchers in need); id. at 28 (Townsend’s plans to share

new music in January); id. at 33 (Tran’s plans to promote product launching in Spring

2025).

Applicants will also lose the communities they have cultivated on TikTok.

Firebaugh, for example, relies on TikTok to connect with and support other ranchers

in an otherwise isolating profession, a community he has been unable to recreate

elsewhere. D.C. Cir. Supp. Add. 8. TikTok has helped Spann create a refuge for

domestic violence and sexual assault survivors—a community that, due to anonymity

and moderation concerns, cannot just move to another service. Id. at 22. Townsend,

meanwhile, values connecting through music and biblical discussions with his

community of 2.5 million followers Id. at 27. And Sexton’s TikTok community has

supported her through grief over losing her mother and the challenges and joys of

parenthood. Id. at 19. BASED Politics will lose its connection to the “Gen Z” audience

it has cultivated, which it cannot reach anywhere else. Id. at 35. The loss of these

communities—even for a few months—would devastate applicants and their

followers.

To be sure, other social media apps exist—even other apps that allow users to

post short-form videos. But TikTok is a distinct medium of communication that not

even the D.C. Circuit denied has a unique feel and culture. As applicant Sexton

explains, because of the “close-knit community that [she has] developed on TikTok,”

she is “comfortable being vulnerable and expressing [her]self on the app.” D.C. Cir.

Add. 47-48. On other apps, by contrast, “there is more pressure to filter and sanitize

one’s life to convey an unrealistic image of perfection.” Id. TikTok empowers

Townsend to speak freely and authentically without fear of being “shouted down.”

D.C. Cir. Add. 65-66; see id. at 71 (TikTok is “a space for expressing myself that has

come to mean so much to me”). In Martin’s experience, “TikTok seems to know much

better than the other apps where to send [his] videos to allow them to have the most

impact,” which has allowed him to grow “a genuine and supportive following and

reach many more people than on the other apps.” D.C. Cir. Add. 37-38.

In short, no other social-media platform can substitute for TikTok. Applicants

have posted the same content to other platforms for years, but only TikTok has

fostered their communities and allowed them to reach broad audiences. D.C. Cir. Add.

37. If the Act takes effect, creators like Martin worry that they may have to stop

creating content on social media entirely. See, e.g., D.C. Cir. Supp. Add. 16.

b. Applicants also stand on the precipice of suffering irreparable economic

harm. For example, shuttering TikTok will cause Martin to lose income from his

videos on college and professional sports, including from covering the NFL playoffs

and Super Bowl. D.C. Cir. Supp. Add. 16. Other creators will also suffer

unrecoverable losses. See id. at 24 (half of Spann’s income from TikTok); id. at 3 (15%

of Cadet’s income from TikTok); id. at 29 (Townsend’s income through Creator

Rewards Program and brand partnerships). Firebaugh, Sexton, and Tran, who rely

on TikTok’s distinctly broad and organic reach to market their products, will be

unable to continue operating their businesses. See id. at 6 (Firebaugh: “If … TikTok

is banned, even for a few months, I believe my ranch will no longer generate sufficient

revenue for my family to survive”); id. at 32 (90 percent of Tran’s products sold

through TikTok Shop); id. at 20 (Sexton’s company would not survive without

TikTok). King, who earns almost all his income as a TikTok creator, will be forced to

give up his career. Id. at 12.

In sum, the D.C. Circuit was entirely correct to note that its decision “has

significant implications for TikTok and its users.” Ex. A, at 65; see id. at 92

(Srinivasan, C.J., concurring in part and concurring in the judgment) (“[M]any

Americans may lose access to an outlet for expression, a source of community, and

even a means of income.”). Unless this Court promptly grants interim relief, those

consequences will be grave and irreversible.

2. In contrast, there is little weighing on the other side. When it passed the

Act, Congress did not demand that TikTok be shuttered immediately. Instead, it

delayed the ban’s effective date for 270 days, with the possibility of an additional 90day extension at the President’s direction. Act § 2(a)(2)(A), (a)(3). As this legislative

choice indicates, there is no reason to think that the public interest will be harmed

by a similarly brief additional delay—even if the government were ultimately to

prevail on the merits.

Furthermore, Congress’s decision to allow TikTok to remain operative during

the 2024 presidential election powerfully belies any notion that the platform poses an

urgent threat to American political discourse. So do the actions of both parties’

presidential candidates during our recently completed election cycle, each of whom

was presumably regularly briefed on genuine national-security threats and yet

actively campaigned on TikTok. Even taking at face value the government’s

speculative predictions of future harm, it cannot show that the harm will manifest in

the brief period necessary to enable this Court’s review.

3. The Court can further minimize this limited delay by granting certiorari in

time to decide the Act’s constitutionality this Term. Given the Court’s casedistribution schedule, any petition for certiorari filed and briefed in the ordinary

course would likely not be heard until October Term 2025. Accordingly, the Court

may wish to construe this application as a petition for a writ of certiorari presenting

the question of whether the Act violates the Constitution. See, e.g., Harrington v.

Purdue Pharma L.P., 144 S. Ct. 44 (2023). Granting review of that question while

also granting interim relief would allow for briefing in the ordinary course and

argument in the Court’s April sitting, and would likely resolve this controversy by

June 2025—merely five months after the Act’s ban on TikTok is set to take effect (and

two

months

after

Congress

empowered

implementation).

the

President

himself

delay

CONCLUSION

The Court should enjoin the enforcement of the Protecting Americans from

Foreign Adversary Controlled Applications Act, Pub. L. No. 118-50, div. H (2024),

with respect to applications operated by TikTok and ByteDance, pending the

consideration and disposition of applicants’ forthcoming petition for a writ of

certiorari and any further proceedings in this Court. In addition to granting the

injunction, the Court may wish to construe this application as a petition for a writ of

certiorari and grant the petition.

Respectfully submitted,

Ambika Kumar

Tim Cunningham

Xiang Li

DAVIS WRIGHT TREMAINE LLP

920 Fifth Avenue, Suite 3300

Seattle, Washington 98104

(206) 757-8030

Jeffrey L. Fisher

Counsel of Record

O’MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

(650) 473-2600

jlfisher@omm.com

Elizabeth A. McNamara

Chelsea T. Kelly

DAVIS WRIGHT TREMAINE LLP

1251 Avenue of the Americas

New York, New York 10020

(212) 489-8230

Joshua Revesz

O’MELVENY & MYERS LLP

1625 Eye Street NW

Washington, DC 20006

(202) 383-5261

Attorneys for Creator Petitioners

James R. Sigel

Adam S. Sieff

DAVIS WRIGHT TREMAINE LLP

50 California Street, Suite 2300

San Francisco, California 94111

(415) 276-6500

Attorneys for Creator Petitioners

December 16, 2024

Jacob Huebert

Jeffrey M. Schwab

LIBERTY JUSTICE CENTER

7500 Rialto Blvd.

Suite 1-250

Austin, Texas 78735

(512) 481-4400

Attorneys for BASED Politics, Inc.

EXHIBITS

EXHIBIT A:

D.C. Circuit Opinion (Dec. 6, 2024)

USCA Case #24-1113

Document #2088317

Filed: 12/06/2024

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2024

Decided December 6, 2024

No. 24-1113

TIKTOK INC. AND BYTEDANCE LTD.,

PETITIONERS

MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

RESPONDENT

Consolidated with 24-1130, 24-1183

On Petitions for Review of Constitutionality of the Protecting

Americans from Foreign Adversary Controlled Applications

Act

Andrew J. Pincus argued the cause for TikTok Petitioners.

With him on the briefs were Avi M. Kupfer, Alexander A.

Berengaut, David M. Zionts, Megan A. Crowley, and John E.

Hall.

Jeffrey L. Fisher argued the cause for Creator Petitioners.

With him on the briefs were Ambika Kumar, Tim Cunningham,

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Filed: 12/06/2024

Xiang Li, Elizabeth A. McNamara, Chelsea T. Kelly, James R.

Sigel, Adam S. Sieff, and Joshua Revesz.

Jacob Huebert and Jeffrey M. Schwab were on the briefs

for petitioner BASED Politics, Inc.

David Greene was on the brief for amici curiae Electronic

Frontier Foundation, et al. in support of petitioners.

Jameel Jaffer and Eric Columbus were on the brief for

amici curiae the Knight First Amendment Institute at Columbia

University, et al. in support of petitioners.

Edward Andrew Paltzik and Serge Krimnus were on the

brief for amicus curiae HungryPanda US, Inc. in support of

petitioners.

Matt K. Nguyen, Travis LeBlanc, Robert H. Denniston,

Kathleen R. Hartnett, and Jamie D. Robertson were on the brief

for amici curiae Social and Racial Justice Community

Nonprofits in support of petitioners.

Nicholas Reddick and Meryl Conant Governski were on

the brief for amici curiae First Amendment Law Professors in

support of petitioners.

Thomas A. Berry was on the brief for amicus curiae the

Cato Institute in support of petitioners.

Mark Davies, Ethan L. Plail, and Edred Richardson were

on the brief for amici curiae Professors Mueller, Edgar,

Aaronson, and Klein in support of petitioners.

Aaron D. Van Oort was on the brief for amicus curiae

Professor Matthew Steilen in support of petitioners.

Page 2 of 92

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Filed: 12/06/2024

Daniel Tenny, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, Brian D. Netter, Deputy Assistant Attorney General,

Mark R. Freeman, Sharon Swingle, Casen B. Ross, Sean R.

Janda, and Brian J. Springer, Attorneys, Matthew G. Olsen,

Assistant Attorney General for National Security, Tyler J.

Wood, Deputy Chief, Foreign Investment Review Section, and

Tricia Wellman, Acting General Counsel, Office of the

Director of National Intelligence.

Thomas R. McCarthy was on the brief for amici curiae

Former National Security Officials in support of respondent.

Joel L. Thayer was on the brief for amici curiae Campaign

for Uyghurs, et al. in support of respondent.

Joel L. Thayer was on the brief for amici curiae Zephyr

Teachout, et al. in support of respondent.

Thomas M. Johnson, Jr., Jeremy J. Broggi, and Joel S.

Nolette were on the brief for amici curiae Chairman of the

Select Committee on the CCP John R. Moolenaar, et al. in

support of respondent.

David H. Thompson, Brian W. Barnes, and Megan M.

Wold were on the brief for amicus curiae Professor D. Adam

Candeub in support of respondent.

Thomas M. Johnson, Jr., Jeremy J. Broggi, and Michael J.

Showalter were on the brief for amici curiae Former Chairman

of the Federal Communications Commission Ajit V. Pai and

Former Assistant Secretary of the Treasury for Investment

Security Thomas P. Feddo in support of respondent.

Page 3 of 92

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Filed: 12/06/2024

Jonathan Berry, Michael Buschbacher, Jared M. Kelson,

James R. Conde, and William P. Barr were on the brief for

amicus curiae American Free Enterprise Chamber of

Commerce in support of respondent.

Austin Knudsen, Attorney General, Office of the Attorney

General for the State of Montana, Christian B. Corrigan,

Solicitor General, Peter M. Torstensen, Jr., Deputy Solicitor

General, Jason S. Miyares, Attorney General, Office of the

Attorney General for the Commonwealth of Virginia, Erika L.

Maley, Solicitor General, Kevin M. Gallagher, Principal

Deputy Solicitor General, Steve Marshall, Attorney General,

Office of the Attorney General for the State of Alabama, Treg

Taylor, Attorney General, Office of the Attorney General for

the State of Alaska, Tim Griffin, Attorney General, Office of

the Attorney General for the State of Arkansas, Ashley Moody,

Attorney General, Office of the Attorney General for the State

of Florida, Christopher M. Carr, Attorney General, Office of

the Attorney General for the State of Georgia, Raúl R.

Labrador, Attorney General, Office of the Attorney General

for the State of Idaho, Theodore E. Rokita, Attorney General,

Office of the Attorney General for the State of Indiana, Brenna

Bird, Attorney General, Office of the Attorney General for the

State of Iowa, Russell Coleman, Attorney General, Office of

the Attorney General for the Commonwealth of Kentucky, Liz

Murrill, Attorney General, Office of the Attorney General for

the State of Louisiana, Lynn Fitch, Attorney General, Office of

the Attorney General for the State of Mississippi, Andrew

Bailey, Attorney General, Office of the Attorney General for

the State of Missouri, Michael T. Hilgers, Attorney General,

Office of the Attorney General for the State of Nebraska, John

M. Formella, Attorney General, Office of the Attorney General

for the State of New Hampshire, Gentner F. Drummond,

Attorney General, Office of the Attorney General for the State

of Oklahoma, Alan Wilson, Attorney General, Office of the

Page 4 of 92

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Attorney General for the State of South Carolina, Marty J.

Jackley, Attorney General, Office of the Attorney General for

the State of South Dakota, Jonathan Skrmetti, Attorney

General, Office of the Attorney General for the State of

Tennessee, and Sean D. Reyes, Attorney General, Office of the

Attorney General for the State of Utah, were on the brief for

amici curiae State of Montana, Virginia, and 19 Other States

in support of respondent.

Peter C. Choharis and Arnon D. Siegel were on the brief

for amicus curiae the Foundation for Defense of Democracies

in support of respondent.

Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,

and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

Opinion concurring in part and concurring in the judgment

filed by Chief Judge SRINIVASAN.

Page 5 of 92

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I. Background

A. The TikTok Platform

B. The Petitioners

C. National Security Concerns

D. The Act

1. Foreign adversary controlled applications

2. Prohibitions

3. The divestiture exemption

E. Procedural History

II. Analysis

A. Standing and Ripeness

B. The First Amendment

1. Heightened scrutiny applies.

2. The Act satisfies strict scrutiny.

a. The Government’s justifications are

compelling.

(i) National security justifications

(ii) Data collection

(iii) Content manipulation

b. The Act is narrowly tailored.

(i) TikTok’s proposed NSA

(ii) Other options

(iii) Overinclusive / underinclusive

C. Equal Protection

D. The Bill of Attainder Clause

E. The Takings Clause

F. Alternative Relief

III. Conclusion

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GINSBURG, Senior Circuit Judge: On April 24, 2024 the

President signed the Protecting Americans from Foreign

Adversary Controlled Applications Act into law. Pub. L. No.

118-50, div. H. The Act identifies the People’s Republic of

China (PRC) and three other countries as foreign adversaries

of the United States and prohibits the distribution or maintenance of “foreign adversary controlled applications.”1 Its

prohibitions will take effect on January 19, 2025 with respect

to the TikTok platform.

Three petitions — filed by ByteDance Ltd. and TikTok,

Inc.; Based Politics, Inc.; and a group of individuals

(“Creators”) who use the TikTok platform — which we have

consolidated, all present constitutional challenges to the Act.

We conclude the portions of the Act the petitioners have standing to challenge, that is the provisions concerning TikTok and

its related entities, survive constitutional scrutiny. We therefore

deny the petitions.

A foreign adversary controlled application is defined in § 2(g)(3)

as “a website, desktop application, mobile application, or augmented

or immersive technology application that is operated, directly or indirectly (including through a parent company, subsidiary, or affiliate),

by”:

(A)

any of — (i) ByteDance, Ltd.; (ii) TikTok; (iii) a

subsidiary of or a successor to an entity identified in

clause (i) or (ii) that is controlled by a foreign adversary; or (iv) an entity owned or controlled, directly or

indirectly, by an entity identified in clause (i), (ii), or

(iii); or

(B)

a covered company that — (i) is controlled by a foreign

adversary; and (ii) that is determined by the President

to present a significant threat to the national security of

the United States following [certain procedures].

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I. Background

This court has original and exclusive jurisdiction over this

case pursuant to Section 3 of the Act. The parties have submitted several evidentiary appendices in support of their positions,

including sworn declarations from various experts. In reviewing this material, we consider whether there is a genuine dispute as to any material fact. Cf. Fed. R. Civ. P. 56(a), (c)(4).

Here, no dispute of “essential facts” stands in the way of our

deciding this case on the merits of the parties’ legal arguments.

See Cal. ex rel. State Lands Comm’n v. United States, 457 U.S.

273, 278 (1982); South Carolina v. Katzenbach, 383 U.S. 301,

307 (1966).

A. The TikTok Platform

TikTok is a social-media platform that lets users create,

upload, and watch short video clips overlaid with text, voiceovers, and music. For each individual viewer, the platform

creates a continuous sequence of videos based upon that user’s

behavior and several other factors, with the aim of keeping that

user engaged. The TikTok platform has approximately 170

million monthly users in the United States and more than one

billion users worldwide.

What a TikTok user sees on the platform is determined by

a recommendation engine, company content moderation decisions, and video promotion and filtering decisions. The

recommendation engine is an algorithm that displays videos

based upon content metadata and user behavior. It identifies a

pool of candidate videos for a user, then scores and ranks those

videos using machine-learning models designed to determine

which video(s) would be most appealing to the user. The source

code for the engine was originally developed by ByteDance, a

company based in China that is the ultimate parent of TikTok.

According to TikTok, the global TikTok team, which includes

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Chinese engineers, “continually develop[s]” the recommendation engine and platform source code. As we explain in more

detail below, the recommendation engine for the version of the

platform that operates in the United States is deployed to a

cloud environment run by Oracle Corporation.

Content moderation decisions involve a combination of

machine and human actions. According to TikTok every video

on the TikTok platform goes through “automated moderation”

and if deemed potentially problematic is sent to a human

moderator for review. TikTok’s Head of Operations and Trust

& Safety approves the “community guidelines” that drive

content moderation on the platform.

Video promotion (also called “heating”) and demotion

(also called “filtering”) decisions are used to advance TikTok’s

commercial or other goals. These decisions involve promoting

or limiting specific videos on the platform. According to

TikTok, each video that is promoted is first reviewed by a

human. Review teams are regionalized so that videos promoted

in the United States are reviewed by U.S.-based reviewers.

With respect to filtering, the platform follows “a set of rules to

filter out and disperse certain content.”

B. The Petitioners

Three groups of petitioners challenge the Act on constitutional grounds: ByteDance Ltd. and TikTok, Inc.; Based

Politics, Inc.; and the self-styled Creators, eight individuals

who use the TikTok platform. We refer to the latter two groups

collectively as the User Petitioners. Where the corporate structure of ByteDance affects our analysis, we identify the relevant

corporate entity by name. Otherwise, we refer generally to the

constellation of ByteDance entities as TikTok. Because PRC

control of the TikTok platform is central to this case, we

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provide the following overview of the relevant corporate

relationships.

ByteDance Ltd., the ultimate parent company of TikTok,

is incorporated in the Cayman Islands. The Government

characterizes ByteDance as headquartered in China and

ByteDance acknowledges that it has significant operations

there.2 ByteDance provides more than a dozen products

through various operating subsidiaries, including Douyin,

which is the counterpart to TikTok in China. The company was

founded by Yiming Zhang, a Chinese national. Zhang retains

21 percent ownership of the company.

TikTok Ltd. is a wholly owned subsidiary of ByteDance

and is also incorporated abroad. TikTok Ltd. operates the

TikTok platform globally, except in China. The Government

refers to TikTok entities that operate the platform outside the

United States as “TikTok Global” and its U.S. operations as

“TikTok US.”

TikTok Ltd. wholly owns TikTok LLC, which in turn

wholly owns TikTok, Inc., a California corporation that provides the TikTok platform to users in the United States.

According to a TikTok declarant, TikTok’s “U.S. application

and global application are highly integrated,” and the “global

TikTok application itself is highly integrated with ByteDance.”

Because the TikTok “platform and the content [are] global, the

teams working on the platform, and the tools they use, necessarily must be, as well.” According to TikTok, one of

ByteDance’s roles is “development of portions of the computer

code that runs the TikTok platform.” In the Government’s

view, TikTok “would try to comply if the PRC asked for

specific actions to be taken to manipulate content for

We use “China” when referring to the country and PRC when

referencing its government.

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censorship, propaganda, or other malign purposes on TikTok

US.”

TikTok U.S. Data Security Inc. (TTUSDS) is a wholly

owned subsidiary of TikTok, Inc., incorporated in Delaware.

TikTok created TTUSDS to limit ByteDance’s access to the

data of TikTok’s users in the United States and to monitor the

security of the platform. TikTok represents that TTUSDS

employees are separated from other TikTok employees, and

that it partnered with Oracle to migrate the U.S. version of the

TikTok platform into a cloud environment run by Oracle.

TikTok also represents that TTUSDS and Oracle review

updates to the platform made by ByteDance’s non-TTUSDS

employees, and that Oracle has full access to TikTok’s source

code. According to TikTok, TTUSDS is also responsible for

deploying the recommendation engine in the United States, and

TTUSDS signs off on any decision to promote or demote

content in the United States.

C. National Security Concerns

As relevant here, the Executive3 first became concerned

about the PRC’s influence over TikTok in 2018 when

ByteDance relaunched the platform in the United States

following its acquisition of Musical.ly. In 2019, upon finding

that “foreign adversaries” were “exploiting vulnerabilities in

information and communications technology and services,”

President Trump declared a national emergency. Securing the

Information and Communications Technology and Services

Supply Chain, Exec. Order No. 13873, 84 Fed. Reg. 22689,

22689 (May 15, 2019). Later that year, the Committee on

Foreign Investment in the United States (CFIUS), which

comprises the heads of several Executive Branch agencies, sent

The Executive refers variously to the President, Executive Branch

agencies, including the intelligence agencies, and officials thereof.

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a questionnaire to ByteDance about national security concerns

related to ByteDance’s acquisition of Musical.ly. Thus began a

lengthy investigatory process that culminated on August 1,

2020 with CFIUS concluding that TikTok could not sufficiently mitigate its national security concerns and referring the

transaction to the President. The President, acting on that

referral, ordered ByteDance to divest any “assets or property”

that “enable or support ByteDance’s operation of the TikTok

application in the United States.” Regarding the Acquisition of

Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297

(Aug. 14, 2020).

President Trump separately invoked his powers under the

International Emergency Economic Powers Act (IEEPA) and

the National Emergencies Act to address “the threat posed by

one mobile application in particular, TikTok.” Addressing the

Threat Posed by TikTok, Exec. Order No. 13942, 85 Fed. Reg.

48637, 48637 (Aug. 6, 2020). President Trump prohibited

certain “transactions” with ByteDance or its subsidiaries, id. at

48638, and the Secretary of Commerce later published a list of

prohibited transactions, 85 Fed. Reg. 60061 (Sept. 24, 2020).

Litigation ensued, and two courts enjoined the President’s

prohibitions under the IEEPA as exceeding his authority under

that law. TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 102

(D.D.C. 2020); Maryland v. Trump, 498 F. Supp. 3d 624, 638,

641–45 (E.D. Pa. 2020).

In 2021, President Biden withdrew President Trump’s

IEEPA executive order and issued a new one. In the new order,

the President identified the PRC as “a foreign adversary” that

“continues to threaten the national security, foreign policy, and

economy of the United States” through its control of “software

applications” used in the United States. Protecting Americans’

Sensitive Data From Foreign Adversaries, Exec. Order No.

14034, 86 Fed. Reg. 31423, 31423 (June 9, 2021). President

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Biden elaborated that “software applications” can provide

foreign adversaries with “vast swaths of information from

users,” and that the PRC’s “access to large repositories” of such

data “presents a significant risk.” Id. President Biden directed

several executive agencies to provide risk mitigation options,

and he asked for recommended “executive and legislative

actions” to counter risks “associated with connected software

applications that are designed, developed, manufactured, or

supplied by persons owned or controlled by, or subject to the

jurisdiction or direction of, a foreign adversary.” Id. The

following year, President Biden signed into law a bill prohibiting the use of TikTok on government devices. See generally

Pub. L. No. 117-328, div. R, 136 Stat. 5258 (2022).

Litigation regarding President Trump’s divestiture order

pursuant to CFIUS’s referral began when TikTok filed suit in

this court challenging the constitutionality of the order. See Pet.

for Review, TikTok Inc. v. CFIUS, No. 20-1444 (2020). At the

request of the parties, in February 2021 this court placed that

case in abeyance while the new administration considered the

matter and the parties negotiated over an alternative remedy

that would sufficiently address the Executive’s national security concerns.

During 2021 and 2022, TikTok submitted multiple drafts

of its proposed National Security Agreement (NSA) and

Executive Branch officials held numerous meetings to consider

TikTok’s submissions. According to TikTok, there were “at

least” 14 meetings or calls, nine written presentations by

TikTok, and 15 email exchanges in which “CFIUS posed questions related to [TikTok’s] operations and the NSA terms.” A

TikTok declarant describes the negotiations as “protracted,

detailed, and productive,” and the Government similarly

characterizes them as “significant” and “intensive.” Also as

part of the process, “Executive Branch negotiators engaged in

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extensive, in-depth discussions with Oracle, the proposed

Trusted Technology Provider, whose responsibility under the

proposed mitigation structure included storing data in the

United States, performing source code review, and ensuring

safety of the operation of the TikTok platform in the United

States.”

In August 2022, TikTok submitted its last proposal.

Although the parties dispute certain details about how to interpret specific provisions, the broad contours of TikTok’s proposed NSA are undisputed. Three aspects of the proposal bear

emphasis.

First, the proposal purported to give TikTok operational

independence from ByteDance by creating a new entity insulated from the influence of ByteDance, namely TTUSDS. The

key management personnel of TTUSDS were to be subject to

approval by the Government.

Second, the proposed NSA would create three tiers of data

to limit the ability of ByteDance to access the data of TikTok’s

users in the United States. Protected Data generally would

encompass personal information about TikTok’s U.S. users —

such as their usernames, passwords, user-created content, and

any other personally identifiable information — unless such

data were classified as Excepted Data or Public Data. Sharing

of Protected Data with ByteDance would be prohibited except

pursuant to limited-access protocols. Excepted Data would

include data that platform users authorized to be shared with

TikTok or its affiliates; certain defined data fields; and

encrypted usernames, phone numbers, email addresses, etc., for

routing to the United States. Public Data would include data

generally accessible to platform users, as well as any content a

user decides to make public. Under the proposed NSA, TikTok

could send Excepted Data and Public Data to ByteDance.

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Third, the proposal provided for a “trusted third party,”

Oracle, to inspect the source code, including TikTok’s

recommendation engine. It also gave the Government authority, under certain circumstances, to instruct TikTok to shut

down the platform in the United States, which TikTok calls a

“kill switch.”

The Executive determined the proposed NSA was insufficient for several reasons. Most fundamentally, certain data of

U.S. users would still flow to China and ByteDance would still

be able to exert control over TikTok’s operations in the United

States. The Executive also did not trust that ByteDance and

TTUSDS would comply in good faith with the NSA. Nor did

the Executive have “sufficient visibility [into] and resources to

monitor” compliance. In the Executive’s view, divestment was

the only solution that would adequately address its national

security concerns. TikTok nevertheless voluntarily implemented some of its proposed mitigation measures.

D. The Act

In the months leading to passage of the Act, the Congress

conducted a series of classified briefings and hearings regarding the Government’s national security concerns. The Congress

then debated and passed the Act as one part of a broader

appropriations bill, which also included the Protecting

Americans’ Data from Foreign Adversaries Act of 2024, Pub.

L. No. 118-50, div. I (2024), hereinafter the Data Broker Law.

The Act and the Data Broker Law include nearly identical

definitions of “foreign adversary country” and “controlled by a

foreign adversary.” Their aims also overlap. Section 2(a) of the

Data Broker Law prohibits third party data brokers from

transferring “personally identifiable sensitive data of a United

States individual” to a foreign adversary country or an entity

“controlled by a foreign adversary.” The Act complements that

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provision by limiting the ability of foreign adversaries to

collect data directly through adversary controlled applications.

The Act itself is narrowly constructed to counter foreign

adversary control through divestiture. Three aspects of the Act

are particularly relevant to this case: (1) the definition of foreign adversary controlled applications, (2) prohibitions in the

Act, and (3) the divestiture option.

1. Foreign adversary controlled applications

The Act defines a Foreign Adversary Controlled

Application as “a website, desktop application, mobile application, or augmented or immersive technology application that is

operated, directly or indirectly” by either of two distinct

groups. § 2(g)(3). The first group consists of the ByteDance

constellation of entities, including TikTok, which is identified

by name. § 2(g)(3)(A). The second group consists of every covered company4 that is determined by the President to present a

The term “covered company” is defined as “an entity that operates

. . . a website, desktop application, mobile application, or augmented

or immersive technology application that”:

(i)

permits a user to create an account or profile to generate, share, and view text, images, videos, real-time

communications, or similar content;

(ii) has more than 1,000,000 monthly active users with

respect to at least 2 of the 3 months preceding the date

on which a relevant determination of the President is

made pursuant to paragraph (3)(B);

(iii) enables 1 or more users to generate or distribute content

that can be viewed by other users of the website, desktop application, mobile application, or augmented or

immersive technology application; and

(iv) enables 1 or more users to view content generated by

other users of the website, desktop application, mobile

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significant threat to national security. Specifically, it includes

any “covered company” that:

(i)

is controlled by a foreign adversary;5 and

(ii)

that is determined by the President to present a

significant threat to the national security of the

United States following the issuance of — (I) a

public notice proposing such determination; and

(II) a public report to Congress, submitted not less

than 30 days before such determination, describing

the specific national security concern involved and

containing a classified annex and a description of

application, or augmented or immersive technology

application.

§ 2(g)(2)(A). The term excludes, however, entities that operate an

“application whose primary purpose is to allow users to post product

reviews, business reviews, or travel information and reviews.”

§ 2(g)(2)(B).

The term “controlled by a foreign adversary” means a “covered

company or other entity” that is:

(A)

(B)

(C)

a foreign person that is domiciled in, is headquartered

in, has its principal place of business in, or is organized

under the laws of a foreign adversary country;

an entity with respect to which a foreign person or

combination of foreign persons described in subparagraph (A) directly or indirectly own at least a 20 percent

stake; or

a person subject to the direction or control of a foreign

person or entity described in subparagraph (A) or (B).

§ 2(g)(1). The definition of “foreign adversary country” encompasses China, Russia, Iran, and North Korea. § 2(g)(2) (defining the

term by reference to 10 U.S.C. § 4872(d)(2)).

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what assets would need to be divested to execute a

qualified divestiture.

§ 2(g)(3)(B).

2. Prohibitions

The Act contains prohibitions, § 2(a), and a “data and

information portability” requirement, § 2(b). The prohibitions

do not directly proscribe conduct by an entity that owns a foreign adversary controlled application. Instead, they bar others

from providing critical support in the United States for such an

application. Specifically, the Act makes it “unlawful for an

entity to distribute, maintain, or update” a foreign adversary

controlled application in any of two ways:

(A) Providing services to distribute, maintain, or

update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an

online mobile application store) through which

users within the land or maritime borders of the

United States may access, maintain, or update such

application.

(B) Providing internet hosting services to enable the

distribution, maintenance, or updating of such foreign adversary controlled application for users

within the land or maritime borders of the United

States.

§ 2(a)(1).

With respect to TikTok, the prohibitions take effect 270

days after the Act was passed into law, that is, on January 19,

2025. § 2(a)(2)(A). With respect to applications subject to the

generally applicable provisions, the prohibitions take effect

270 days after “the relevant determination of the President.”

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§ 2(a)(2)(B). In both situations, the President can grant a onetime, 90-day extension under specific circumstances not relevant here. § 2(a)(3).

Failure to comply with the Act can result in substantial

monetary penalties. § 2(d)(1). To enforce the Act the Attorney

General, following an investigation, can file suit in an appropriate district court. § 2(d)(2).

3. The divestiture exemption

Section 2(c) of the Act provides an exemption “for qualified divestitures.” That is, the prohibitions do not apply if “a

qualified divestiture is executed before the date on which a

prohibition under subsection (a) would begin to apply.”

§ 2(c)(1)(A). If a qualified divestiture is executed after that

date, then the prohibitions “shall cease to apply.” § 2(c)(1)(B).

A “qualified divestiture” is defined as a transaction that:

(A) the President determines, through an interagency

process, would result in the relevant foreign

adversary controlled application no longer being

controlled by a foreign adversary; and

(B) the President determines, through an interagency

process, precludes the establishment or maintenance of any operational relationship between the

United States operations of the relevant foreign

adversary controlled application and any formerly

affiliated entities that are controlled by a foreign

adversary, including any cooperation with respect

to the operation of a content recommendation algorithm or an agreement with respect to data sharing.

§ 2(g)(6).

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E. Procedural History

This case concerns three petitions challenging the Act that

this court consolidated for review. On May 17, 2024 the parties

jointly asked this Court to expedite the case. The parties

advised that they intended to append evidentiary materials to

their briefs. The Government noted that it was evaluating the

need to file an ex parte evidentiary submission given the

classified material implicated by the case. The petitioners

reserved the right to object to any such submission.

The parties ultimately submitted evidence with their

briefs. TikTok’s submission included several expert declarations as well as a declaration from its Head of Operations and

Trust & Safety. The User Petitioners filed declarations

underscoring the diverse ways in which they use the TikTok

platform. The Government filed declarations explaining its

national security concerns and why it found TikTok’s proposed

NSA insufficient to meet those concerns. TikTok filed rebuttal

declarations with its reply brief.

Portions of the Government’s brief and evidentiary

submission were redacted because they contain classified

information. The Government filed a motion requesting leave

to file unredacted versions of its brief and supporting evidence

under seal and ex parte, which documents the Government later

lodged with this court. The petitioners opposed the

Government’s motion and alternatively moved this court to

appoint a special master and issue a temporary injunction in

order to mitigate prejudice arising from the Government’s

classified filings.

II. Analysis

The petitioners seek a declaratory judgment that the Act

violates the Constitution and an order enjoining the Attorney

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General from enforcing it. Because the petitioners are bringing

a pre-enforcement challenge to the Act, we must determine the

extent to which this court can consider their claims consistent

with the standing aspect of the “case or controversy” requirement of Article III of the Constitution. We conclude that

TikTok has standing to challenge those portions of the Act that

directly affect the activities of ByteDance and its affiliates. We

further conclude that TikTok’s challenge to those portions of

the Act is ripe.

On the merits, we reject each of the petitioners’ constitutional claims. As we shall explain, the parts of the Act that are

properly before this court do not contravene the First

Amendment to the Constitution of the United States, nor do

they violate the Fifth Amendment guarantee of equal protection

of the laws; constitute an unlawful bill of attainder, in violation

of Article I, § 9, clause 3; or work an uncompensated taking of

private property in violation of the Fifth Amendment.

A. Standing and Ripeness

We have an independent duty to assure ourselves that the

petitioners and their claims satisfy the requirements of Article

III. Exelon Corp. v. FERC, 911 F.3d 1236, 1240 (D.C. Cir.

2018). TikTok’s claims all relate to how the Act applies to the

TikTok platform; it has not, for example, meaningfully developed claims regarding other services provided by other

ByteDance subsidiaries. Nor does it claim the generally

applicable portions of the Act are unconstitutional as applied to

other companies. TikTok instead seeks to enjoin the enforcement of the prohibitions on hosting the TikTok platform, which

TikTok contends are unconstitutional irrespective of whether

they are imposed based upon the generally applicable framework or upon the TikTok-specific provisions of the Act. At the

same time, the User Petitioners claim the Act in its entirety is

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“facially invalid under the First Amendment,” which need not

detain us.6 Creator Reply Br. 30–31.

“To establish standing for a pre-enforcement challenge, a

plaintiff must demonstrate first an intention to engage in a

course of conduct arguably affected with a constitutional interest, but proscribed by a statute and, second, that there exists a

credible threat of prosecution thereunder.” Muthana v.

Pompeo, 985 F.3d 893, 911 (D.C. Cir. 2021) (cleaned up). This

inquiry is slightly more refined in cases that involve the potential future regulation of third parties. To establish standing in

such circumstances, a plaintiff must demonstrate it is “likely

that the government’s regulation . . . of someone else will cause

a concrete and particularized injury in fact to the unregulated

plaintiff.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 385

n.2 (2024).

Ripeness is “related” but focuses “on the timing of the

action rather than on the parties seeking to bring it.” Navegar,

Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997).

Courts consider (1) hardship to the parties and (2) fitness for

judicial resolution when assessing ripeness. Id. The purposes

of the ripeness doctrine are to avoid abstract argument, promote

judicial economy, and ensure an adequate record. Id.

TikTok and its claims challenging enforcement of the

prohibitions of the Act based upon the TikTok-specific provisions clearly satisfy the requirements respectively for standing

and ripeness. The prohibitions based upon those provisions

The User Petitioners have not demonstrated that “a substantial

number of” the Act’s “applications are unconstitutional, judged in

relation to the statute’s plainly legitimate sweep.” Moody v.

NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024) (cleaned up). Indeed,

the core of the Act — its application as to TikTok — is valid for the

reasons we explain in this opinion.

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take effect by operation of law on January 19, 2025. After that

date, third parties that make the TikTok platform available in

the United States would run a significant risk of incurring

monetary penalties under § 2(d)(1). Even if the Act went unenforced, the risk of penalties alone could cause third parties to

suspend support for the TikTok platform, such as by removing

it from online marketplaces, and an injunction would prevent

that harm. TikTok therefore has Article III standing to pursue

its claims.

The ripeness inquiry is likewise straightforward. TikTok

risks severe hardship from delayed review, and we have an adequate record on which to resolve the company’s challenges to

the constitutionality of the TikTok-specific provisions of the

Act.

To the extent TikTok seeks to enjoin future enforcement

of the prohibitions under the generally applicable track, TikTok

does not have standing. Nor if it did would such a request be

ripe for judicial review. Recall that applying the prohibitions

under the generally applicable framework requires certain

procedural steps and a presidential determination pursuant to

§ 2(g)(3)(B). Those steps include public notice, a description

of the national security concern, a classified annex, and a

description of assets to be divested. § 2(g)(3)(B)(ii). The

President has not invoked those procedures with respect to

TikTok (or any other company), and it would be self-evidently

premature for the court even to consider a request for an injunction against the President ever doing so. We consequently limit

our analysis to the constitutionality of the Act as applied to the

TikTok-specific provisions that will go into effect next month.7

Having concluded that TikTok has standing, we need not separately

analyze whether the User Petitioners have standing to raise the same

claims. See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C.

Cir. 2017) (explaining that “if constitutional standing can be shown

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B. The First Amendment

This case requires that we apply longstanding First

Amendment principles to somewhat novel facts: A popular

social-media platform, subject to the control of a foreign adversary nation, that a statute requires be divested because of

national security risks. The issue is made more complex by the

web of subsidiaries wholly owned by ByteDance that lie

behind the TikTok platform. See Moody v. NetChoice, LLC,

144 S. Ct. 2383, 2410 (2024) (Barrett, J., concurring)

(explaining how foreign ownership and corporate structure can

complicate the First Amendment analysis).

We conclude the Act implicates the First Amendment and

is subject to heightened scrutiny. Whether strict or intermediate

scrutiny applies is a closer question. The relevant portions of

the Act are facially content neutral, but the Government arguably based its content-manipulation justification for the Act

upon the content on the platform. We think it only prudent,

therefore, to assume without deciding that the higher standard

applies.

1. Heightened scrutiny applies.

As in most First Amendment cases, the parties spend much

of their time debating the appropriate standard of review. The

petitioners urge the court to apply strict scrutiny but contend

the Act fails intermediate scrutiny as well. The Government

suggests we apply only rational basis review, alternatively

advocates intermediate scrutiny, but maintains the Act satisfies

even strict scrutiny.

for at least one plaintiff, we need not consider the standing of the

other plaintiffs to raise that claim” (cleaned up)).

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Under intermediate scrutiny, the Act complies with the

First Amendment “if it advances important governmental interests unrelated to the suppression of free speech and does not

burden substantially more speech than necessary to further

those interests.” Turner Broad. Sys., Inc. v. FCC (Turner II),

520 U.S. 180, 189 (1997) (citing United States v. O’Brien, 391

U.S. 367, 377 (1968)). Under strict scrutiny, the Act violates

the First Amendment unless the Government can “prove that

the restriction furthers a compelling interest and is narrowly

tailored to achieve that interest.” Reed v. Town of Gilbert,

576 U.S. 155, 171 (2015) (cleaned up).

We think it clear that some level of heightened scrutiny is

required. The question whether intermediate or strict scrutiny

applies is difficult because the TikTok-specific provisions are

facially content neutral, yet the Government justifies the Act in

substantial part by reference to a foreign adversary’s ability to

manipulate content seen by Americans. No Supreme Court

case directly addresses whether such a justification renders a

law content based, thereby triggering strict scrutiny. There are

reasonable bases to conclude that intermediate scrutiny is

appropriate even under these circumstances. We need not,

however, definitively decide that question because we conclude the Act “passes muster even under the more demanding

standard.” FEC v. Int’l Funding Inst., 969 F.2d 1110, 1116

(D.C. Cir. 1992); see also In re Sealed Case, 77 F.4th 815,

829–30 (D.C. Cir. 2023) (assuming without deciding that strict

scrutiny applied).

At the outset, we reject the Government’s ambitious argument that this case is akin to Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986), and does not implicate the First

Amendment at all. That case concerned enforcement of “a

public health regulation of general application against” an adult

bookstore being “used for prostitution.” Id. at 707.

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Enforcement of a generally applicable law unrelated to

expressive activity does not call for any First Amendment

scrutiny. Id. By contrast, the First Amendment is implicated in

“cases involving governmental regulation of conduct that has

an expressive element,” or when a statute is directed at an

activity without an expressive component but imposes “a

disproportionate burden upon those engaged in protected First

Amendment activities.” Id. at 703–04; see also Alexander v.

United States, 509 U.S. 544, 557 (1993).

Here the Act imposes a disproportionate burden on

TikTok, an entity engaged in expressive activity. The

Government concedes, as it must after NetChoice, that the

curation of content on TikTok is a form of speech. 144 S. Ct. at

2401. Like the social media companies in that case, TikTok

delivers a “personalized collection” of content to users and

moderates this content pursuant to its community guidelines.

Id. at 2403–04. The Act plainly “single[s] out” that expressive

activity by indirectly subjecting TikTok — and so far, only

TikTok — to the divestiture requirement. Arcara, 478 U.S. at

707; cf. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 190

(2024) (explaining that “the First Amendment prohibits

government officials from wielding their power selectively to

punish or suppress speech, directly or (as alleged here) through

private intermediaries”). The prohibitions will make it unlawful for any entity to distribute, maintain, or update the TikTok

platform in the United States. § 2(a)(1). TikTok can avoid the

prohibitions by making a qualified divestiture, § 2(c), but to

qualify such divestiture must preclude “any cooperation with

respect to the operation of a content recommendation algorithm

or an agreement with respect to data sharing,” § 2(g)(6)(B). By

prohibiting third parties from hosting TikTok until the platform

executes this divestiture, the Act singles out TikTok, which

engages in expressive activity, for disfavored treatment.

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The Government suggests that because TikTok is wholly

owned by ByteDance, a foreign company, it has no First

Amendment rights. Cf. Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc., 591 U.S. 430, 436 (2020) (explaining that

“foreign organizations operating abroad have no First

Amendment rights”). TikTok, Inc., however, is a domestic

entity operating domestically. See NetChoice, 144 S. Ct. at

2410 (Barrett, J., concurring) (identifying potential “complexities” for First Amendment analysis posed by the “corporate

structure and ownership of some platforms”). The Government

does not dispute facts suggesting at least some of the regulated

speech involves TikTok’s U.S. entities. See TikTok App. 811–

12, 817–18 (explaining that promoted videos are “reviewed by

a U.S.-based reviewer,” that an executive employed by a U.S.

entity approves the guidelines for content moderation, and that

the recommendation engine “is customized for TikTok’s various global markets” and “subject to special vetting in the

United States”).

Nor does the Government argue we should “pierce the

corporate veil” or “invoke any other relevant exception” to the

fundamental principle of corporate separateness. Agency for

Int’l Dev., 591 U.S. at 435–36. We are sensitive to the risk of a

foreign adversary exploiting corporate form to take advantage

of legal protections in the United States. Indeed, the

Government presented evidence to suggest the PRC intentionally attempts to do just that. See, e.g., Gov’t App. 33–35

(describing the PRC’s hybrid commercial threat and its

exploitation of U.S. legal protections for hacking operations).

Under these circumstances, however, we conclude that the

TikTok-specific provisions of the Act trigger First Amendment

scrutiny.

The next question is whether intermediate or strict scrutiny

is appropriate, which turns on whether the Act is content

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neutral or content based. See Turner Broad. Sys., Inc. v. FCC

(Turner I), 512 U.S. 622, 642 (1994) (explaining that “regulations that are unrelated to the content of speech are subject to

an intermediate level of scrutiny, because in most cases they

pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue” (citation omitted)). A law is

content based if it “applies to particular speech because of the

topic discussed or the idea or message expressed.” Reed, 576

U.S. at 163. It is facially content based “if it targets speech

based on its communicative content.” City of Austin v. Reagan

Nat’l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) (cleaned

up). A law that “requires an examination of speech only in

service of drawing neutral, location-based lines” does not

target speech based upon its communicative content. Id.; see

BellSouth Corp. v. FCC (BellSouth I), 144 F.3d 58, 69 (D.C.

Cir. 1998) (applying intermediate scrutiny to a law that

“defines the field of expression to which it applies by reference

to a set of categories that might in a formal sense be described

as content-based”). Facial neutrality, however, does not end the

analysis. Even laws that are facially content neutral are content

based if they (a) “cannot be justified without reference to the

content of the regulated speech” or (b) “were adopted by the

government because of disagreement with the message the

speech conveys.” Reed, 576 U.S. at 164 (cleaned up).

The provisions of the Act before us are facially content

neutral because they do not target speech based upon its

communicative content. The TikTok-specific provisions

instead straightforwardly require only that TikTok divest its

platform as a precondition to operating in the United States. On

its face, the Act concerns control by a foreign adversary and

not “the topic discussed or the idea or message expressed.” City

of Austin, 596 U.S. at 69 (cleaned up).

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TikTok insists the TikTok-specific provisions nonetheless

require strict scrutiny because they single out a particular

speaker. To be sure, laws that “discriminate among media, or

among different speakers within a single medium, often present

serious First Amendment concerns.” Turner I, 512 U.S. at 659.

“It would be error to conclude, however, that the First

Amendment mandates strict scrutiny for any speech regulation

that applies to one medium (or a subset thereof) but not others.”

Id. at 660; see, e.g., BellSouth I, 144 F.3d at 68 (rejecting argument that a statute “warrants strict First Amendment review

because it targets named corporations”). Strict scrutiny “is

unwarranted when the differential treatment is justified by

some special characteristic of the particular medium being

regulated.” Turner I, 512 U.S. at 660–61 (cleaned up). As of

now, the TikTok platform is the only global platform of its kind

that has been designated by the political branches as a foreign

adversary controlled application. As explained below, the

Government presents two persuasive national security

justifications that apply specifically to the platform that TikTok

operates. “It should come as no surprise, then, that Congress

decided to impose [certain restrictions] upon [TikTok] only.”

Id. at 661.

Whether the Act, which is facially content neutral, is

subject to strict scrutiny therefore turns upon the Government’s

justifications for the law. See Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989) (stating that a “regulation of expressive activity is content neutral so long as it is justified without

reference to the content of the regulated speech” (cleaned up));

Reed, 576 U.S. at 164 (explaining that laws are content based

if they “cannot be justified without reference to the content of

the regulated speech” (cleaned up)); City of Austin, 596 U.S. at

76 (explaining that “an impermissible purpose or justification”

may render a facially content-neutral restriction content based).

The Government offers two national security justifications:

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(1) to counter the PRC’s efforts to collect great quantities of

data about tens of millions of Americans, and (2) to limit the

PRC’s ability to manipulate content covertly on the TikTok

platform. The former does not reference the content of speech

or reflect disagreement with an idea or message. See Ward,

491 U.S. at 792 (finding justifications offered for a municipal

noise regulation content neutral). The Government’s explanation of the latter justification does, however, reference the

content of TikTok’s speech. Specifically, the Government

invokes 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. In fact, the Government identifies a particular topic

— Taiwan’s relationship to the PRC — as a “significant

potential flashpoint” that may be a subject of the PRC’s

influence operations, and its declarants identify other topics of

importance to the PRC. Gov’t Br. 22 (quoting Gov’t App. 7

(Decl. of Asst. Dir. of Nat’l Intel. Casey Blackburn)); see also

Gov’t App. 9, 22.

At the same time, the Government’s concern with content

manipulation does not reflect “an impermissible purpose or

justification.” City of Austin, 596 U.S. at 76. On the contrary,

the Government’s aim is to preclude a foreign adversary from

manipulating public dialogue. To that end, the Act narrowly

addresses foreign adversary control of an important medium of

communication in the United States. Consequently, the

Government does not suppress content or require a certain mix

of content. Indeed, content on the platform could in principle

remain unchanged after divestiture, and people in the United

States would remain free to read and share as much PRC propaganda (or any other content) as they desire on TikTok or any

other platform of their choosing. What the Act targets is the

PRC’s ability to manipulate that content covertly. Understood

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in that way, the Government’s justification is wholly consonant

with the First Amendment.

Although we can conceive of reasons intermediate scrutiny may be appropriate under these circumstances, we ultimately do not rest our judgment on those reasons because the

Act satisfies “the more demanding standard.” Int’l Funding

Inst., 969 F.2d at 1116. We therefore assume without deciding

that strict scrutiny applies and uphold the law on that basis.8

Our decision to resolve the case in this way follows a similar

approach taken by this and other courts when faced with a

government action that would satisfy strict scrutiny. See In re

Sealed Case, 77 F.4th at 829–30; United States v. Hamilton,

699 F.3d 356, 371 (4th Cir. 2012); OPAL – Bldg. AAPI

Feminist Leadership v. Yost, No. 24-3768, 2024 WL 4441458,

at *5 (6th Cir. Oct. 8, 2024); see also Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288, 293, 298–99 (1984)

(assuming without deciding that conduct implicated the First

Amendment and upholding a regulation under intermediate

scrutiny); Int’l Funding Inst., 969 F.2d at 1116 (assuming

without deciding that intermediate scrutiny rather than rationalbasis review applied); United States v. Trump, 88 F.4th 990,

1008 (D.C. Cir. 2023) (assuming without deciding “that the

most demanding scrutiny” applied to an order restricting the

speech of the defendant in a criminal trial); cf. City of Ladue v.

Gilleo, 512 U.S. 43, 53 & n.11 (1994) (conversely assuming

We agree with our concurring colleague that the Government’s

data-protection rationale “is plainly content-neutral” and standing

alone would at most trigger intermediate scrutiny. Concurring Op.

12–13. As we have explained, however, that is not clear for the

Government’s content-manipulation justification, and no party has

identified any portion of the Act to which the data justification alone

applies. We therefore assume strict scrutiny applies to our review of

the Act in its entirety and consider both justifications under that

standard.

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without deciding intermediate scrutiny rather than strict scrutiny should be applied, thereby setting “to one side the content

discrimination question”).

2. The Act satisfies strict scrutiny.

To satisfy strict scrutiny the Government must “demonstrate that a speech restriction: (1) serves a compelling

government interest; and (2) is narrowly tailored to further that

interest.” In re Sealed Case, 77 F.4th at 830. “A restriction is

narrowly tailored if less restrictive alternatives would not

accomplish the Government’s goals equally or almost equally

effectively.” Id. (cleaned up). The Act clears this high bar.

We emphasize from the outset that our conclusion here is

fact-bound. The multi-year efforts of both political branches to

investigate the national security risks posed by the TikTok

platform, and to consider potential remedies proposed by

TikTok, weigh heavily in favor of the Act. The Government

has offered persuasive evidence demonstrating that the Act is

narrowly tailored to protect national security. “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.” Holder v. Humanitarian Law

Project, 561 U.S. 1, 36 (2010). Our deference to the

Government’s national-security assessment “is redoubled by

the repeated acts of” the political branches to address the

national security problems presented by the TikTok platform.

Hikvision USA, Inc. v. FCC, 97 F.4th 938, 948 (D.C. Cir.

2024). The Act was the culmination of extensive, bipartisan

action by the Congress and by successive presidents. It was

carefully crafted to deal only with control by a foreign adversary, and it was part of a broader effort to counter a wellsubstantiated national security threat posed by the PRC. Under

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these circumstances, the provisions of the Act that are before

us withstand the most searching review.

The Government’s justifications are

compelling.

Recall that the Government offers two national security

justifications for the Act: to counter (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. Each constitutes an independently compelling national

security interest.

In reaching that conclusion, we follow the Supreme Court

in affording great weight to the Government’s “evaluation of

the facts” because the Act “implicates sensitive and weighty

interests of national security and foreign affairs.”

Humanitarian Law Project, 561 U.S. at 33–34; Trump v.

Hawaii, 585 U.S. 667, 707–08 (2018) (same); see, e.g., Pac.

Networks Corp. v. FCC, 77 F.4th 1160, 1162, 1164 (D.C. Cir.

2023) (declining to second-guess the Executive’s judgment

regarding a national security threat posed by the PRC). At the

same time, of course, we “do not defer to the Government’s

reading of the First Amendment.” Humanitarian Law Project,

561 U.S. at 34. We simply recognize the comparatively limited

competence of courts at “collecting evidence and drawing

factual inferences in this area.” Id. With regard to national

security issues, the political branches may — and often must

— base their actions on their “informed judgment,” which

“affects what we may reasonably insist on from the

Government.” Id. at 34–35.

(i)

National security justifications

The Government provides persuasive support for its

concerns regarding the threat posed by the PRC in general and

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through the TikTok platform in particular. As Assistant

Director of National Intelligence Casey Blackburn explained,

the “PRC is the most active and persistent cyber espionage

threat to U.S. government, private-sector, and critical

infrastructure networks.” Its hacking program “spans the

globe” and “is larger than that of every other major nation,

combined.” The PRC has “pre-positioned” itself “for potential

cyber-attacks against U.S. critical infrastructure by building

out offensive weapons within that infrastructure.” Consistent

with that assessment, the Government “has found persistent

PRC access in U.S. critical telecommunications, energy, water,

and other infrastructure.” See China Telecom (Ams.) Corp. v.

FCC, 57 F.4th 256, 262–63 (D.C. Cir. 2022) (describing the

Government’s shift in focus from terrorism to PRC “cyber

threats” and the risk posed by use of PRC-connected “information technology firms as systemic espionage platforms”).

“The FBI now warns that no country poses a broader, more

severe intelligence collection threat than China.” Id. at 263.

Of particular relevance to the Government’s first justification for the Act, the PRC has engaged in “extensive and yearslong efforts to accumulate structured datasets, in particular on

U.S. persons, to support its intelligence and counterintelligence

operations.” It has done so through hacking operations, such as

by penetrating the U.S. Government Office of Personnel

Management’s systems and taking “reams” of personal data,

stealing financial data on 147 million Americans from a creditreporting agency, and “almost certainly” extracting health data

on nearly 80 million Americans from a health insurance

provider.

The PRC’s methods for collecting data include using “its

relationships with Chinese companies,” making “strategic

investments in foreign companies,” and “purchasing large data

sets.” For example, the PRC has attempted “to acquire sensitive

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health and genomic data on U.S. persons” by investing in firms

that have or have access to such data. Government

counterintelligence experts describe this kind of activity as a

“hybrid commercial threat.”

The PRC poses a particularly significant hybrid commercial threat because it has adopted laws that enable it to access

and use data held by Chinese companies. See China Telecom

(Ams.) Corp., 57 F.4th at 263 (describing the legal framework

through which the PRC has “augmented the level of state

control over the cyber practices of Chinese companies”). For

example, the National Security Law of 2015 requires all

citizens and corporations to provide necessary support to

national security authorities. Similarly, the Cybersecurity Law

of 2017 requires Chinese companies to grant the PRC full

access to their data and to cooperate with criminal and security

investigations.

The upshot of these and other laws, according to the

Government’s declarants, is that “even putatively ‘private’

companies based in China do not operate with independence

from the government and cannot be analogized to private

companies in the United States.” Through its “control over

Chinese parent companies,” the PRC can also “access information from and about U.S. subsidiaries and compel their

cooperation with PRC directives.” As a result, the PRC can

“conduct espionage, technology transfer, data collection, and

other disruptive activities under the disguise of an otherwise

legitimate commercial activity.” According to Kevin

Vorndran, Assistant Director of the FBI’s Counterintelligence

Division, the PRC endeavors strategically to pre-position

commercial entities in the United States that the PRC can later

“co-opt.” These pre-positioning “tactics can occur over the

span of several years of planning and implementation, and they

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are one “part of the PRC’s broader geopolitical and long-term

strategy to undermine U.S. national security.”

The PRC likewise uses its cyber capabilities to support its

influence campaigns around the world. Those global “influence

operations” aim to “undermine democracy” and “extend the

PRC’s influence abroad.” Specifically, the PRC conducts

“cyber intrusions targeted to affect U.S. and non-U.S. citizens

beyond its borders — including journalists, dissidents, and

individuals it views as threats — to counter and suppress views

it considers critical of [the PRC].” Notably, the Government

reports that “ByteDance and TikTok Global have taken action

in response to PRC demands to censor content outside of

China.”

As it relates to TikTok in the United States, the

Government predicts that ByteDance and TikTok entities

“would try to comply if the PRC asked for specific actions to

be taken to manipulate content for censorship, propaganda, or

other malign purposes on TikTok US.” The Government says

that ByteDance, which is subject to PRC laws requiring

cooperation with the PRC, could do so by acting unilaterally or

by conscripting its U.S. entities. The former conclusion is evidenced by the fact that the PRC maintains a powerful Chinese

Communist Party committee “embedded in ByteDance”

through which it can “exert its will on the company.” As of

2022, that committee “was headed by the company’s chief

editor and comprised at least 138 employees at its Beijing

office, including senior company managers.” The latter conclusion is supported by the fact that TikTok’s U.S. operations are

“heavily reliant” on ByteDance. As TikTok’s declarants have

put it, “TikTok in the United States is an integrated part of the

global platform” supported by teams “spread across several

different corporate entities and countries,” and TikTok is

“highly integrated with ByteDance.”

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The Government also identifies several public reports,

which were considered by the Congress prior to passing the

Act, regarding the risks posed by TikTok.9 For example, a

Government declarant points to “reporting by Forbes

Magazine” to illustrate in part why the Government did not

trust TikTok’s proposed mitigation measures. The reporting

suggested “that ByteDance employees abused U.S. user data,

even after the establishment of TTUSDS,” and drew attention

to “audio recordings of ByteDance meetings” that indicated

“ByteDance retained considerable control and influence over

TTUSDS operations.” In its report recommending passage of

the Act, a committee of the Congress collected “a list of public

statements that have been made regarding the national security

risks posed by . . . TikTok.” H.R. Rep. No. 118-417, at 5–12

(2024). According to the committee, public reporting suggested that TikTok had stored sensitive information about U.S.

persons (including “Social Security numbers and tax identifications”) on servers in China; TikTok’s “China-based employees” had “repeatedly accessed non-public data about U.S.

TikTok users”; ByteDance employees had “accessed TikTok

user data and IP addresses to monitor the physical locations of

Although our disposition of this case does not turn upon these

reports, the Congress and the President obviously were entitled to

consider such materials when deciding whether to define TikTok as

a foreign adversary controlled application under the Act. Indeed, we

have “approved” the use of similar public materials by the President

when making decisions to designate people or entities under various

national-security related statutes. See Zevallos v. Obama, 793 F.3d

106, 109, 113 (2015) (finding it “clear that the government may

decide to designate an entity based on a broad range of evidence,

including intelligence data and hearsay declarations” (quoting Holy

Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (2003)

(regarding designation of an entity as a Specially Designated Global

Terrorist))).

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specific U.S. citizens”; and PRC agents had inspected

“TikTok’s internal platform.” Id. at 7–10.

The resulting judgment of the Congress and the Executive

regarding the national security threat posed by the TikTok

platform “is entitled to significant weight, and we have persuasive evidence [in the public record] before us to sustain it.”

Humanitarian Law Project, 561 U.S. at 36. The petitioners

raise several objections to each national security justification,

which we take up next, but the bottom line is that they fail to

overcome the Government’s considered judgment and the

deference we owe that judgment.

(ii)

Data collection

TikTok disputes certain details about the Government’s

concern with its collection of data on U.S. persons but misses

the forest for the trees. The TikTok platform has more than 170

million monthly users in the United States. It is an immensely

popular platform on which users in the United States have

uploaded more than 5.5 billion videos in a single year.

According to TikTok’s “privacy policy,” TikTok automatically

collects large swaths of data about its users, including device

information (IP address, keystroke patterns, activity across

devices, browsing and search history, etc.) and location data

(triangulating SIM card or IP address data for newer versions

of TikTok and GPS information for older versions). TikTok,

Aug. 19, 2024). It may also collect image and audio information (including biometric identifiers and biometric information such as faceprints and voiceprints); metadata (describing how, when, where, and by whom content was created, collected, or modified); and usage information (including content

that users upload to TikTok). Id. That is not to mention information that users voluntarily provide, such as name, age,

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username, password, email, phone number, social media

account information, messages exchanged on the platform and,

“with your permission,” your “phone and social network contacts.” Id. TikTok’s “privacy policy” also makes clear that it

uses these data to “infer additional information” about its users.

Given the magnitude of the data gathered by TikTok and

TikTok’s connections to the PRC, two consecutive presidents

understandably identified TikTok as a significant vulnerability.

Access to such information could, for example, allow the PRC

to “track the locations of Federal employees and contractors,

build dossiers of personal information for blackmail, and

conduct corporate espionage.” Addressing the Threat Posed by

TikTok, 85 Fed. Reg. at 48637.

TikTok does not deny that it collects a substantial amount

of data on its users. Instead TikTok disputes details about the

Government’s understanding of its data practices and questions

the sincerity of the Government’s data justification. At the

same time, however, TikTok’s own declarants provide support

for the Government’s concern. They emphasize the integrated

nature of the TikTok platform to argue that divestiture would

be infeasible. They argue that prohibiting data sharing between

TikTok in the United States and “the entities that operate the

global platform” would make TikTok uncompetitive with

“rival, global platforms.” They also acknowledge that, even

under TikTok’s proposed NSA, ByteDance would continue to

have access to some Protected Data on TikTok users in the

United States through “limited access protocols.” They likewise state that TikTok’s proposed NSA “does allow for

TTUSDS and Oracle to send ‘Excepted Data’ to ByteDance.”

Set against those statements, TikTok’s arguments

concerning the specific data collected and TikTok’s voluntary

data protection efforts fall flat. For example, TikTok quibbles

with the Government’s stated concern that TikTok collects data

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on users’ “precise locations, viewing habits, and private messages,” including “data on users’ phone contacts who do not

themselves use TikTok.” Gov’t Br. 1; see TikTok Reply Br. 25.

According to a TikTok declarant, the current version of TikTok

can only “approximate users’ geographic locations.” Access to

a user’s contact list, likewise, is currently available only if a

user affirmatively opts in, and it is “anonymized and used only

to facilitate connections with other TikTok users.” TikTok

Reply Br. 25. TikTok further points to other data protections

that it claims to provide, such as storing sensitive user data in

the United States and controlling access to them.

The Government’s data-related justification for the Act,

however, does not turn on the details of TikTok’s mitigation

measures. Even after extended negotiations, TikTok could not

satisfactorily resolve the Government’s concerns. We have no

doubt, and the Government has never denied, that TikTok’s

proposed NSA would mitigate the Government’s concerns to

some extent. Nor do we doubt that TikTok’s voluntary mitigation efforts provide some protection. The problem for TikTok

is that the Government exercised its considered judgment and

concluded that mitigation efforts short of divestiture were

insufficient, as a TikTok declarant puts it, to mitigate “risks to

acceptable levels.” At bottom, the Government lacks confidence that it has sufficient visibility and resources to monitor

TikTok’s promised measures, nor does it have “the requisite

trust” that “ByteDance and TTUSDS would comply in good

faith.” The court can neither fault nor second guess the

Government on these crucial points.

This situation is much like that in Pacific Networks Corp.

v. FCC, 77 F.4th 1160 (D.C. Cir. 2023), which involved the

Executive’s decision to revoke authorizations held by PRCcontrolled companies to operate communication lines in the

United States. There, as here, the PRC indirectly controlled the

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companies “through a web of foreign affiliates.” 77 F.4th at

1163 (cleaned up). The Executive “concluded that China’s

ownership raised significant concerns that the [companies]

would be forced to comply with Chinese government

requests.” Id. (cleaned up). The Government was concerned

that the PRC could “access, monitor, store, and in some cases

disrupt or misroute U.S. communications, which in turn

[would] allow them to engage in espionage and other harmful

activities against the United States.” Id. (cleaned up). The

Executive “further concluded that the [companies] had shown

a lack of candor and trustworthiness” and therefore “nothing

short of revocation would ameliorate the national-security

risks.” Id. This court declined the appellants’ invitation to

“second-guess” the Executive’s judgment regarding the threat

to national security. Id. at 1164. We also upheld the

Executive’s conclusion that the companies’ “untrustworthiness

would make any mitigation agreement too risky” in part

because the Executive could not “comprehensively monitor

compliance” or “reliably detect surreptitious, state-sponsored

efforts at evasion.” Id. at 1165–66. The same considerations

similarly support the Government’s judgment here.

We also reject TikTok’s argument that the Government’s

data-related concerns are speculative. The Government “need

not wait for a risk to materialize” before acting; its national

security decisions often must be “based on informed judgment.” China Telecom (Ams.) Corp., 57 F.4th at 266. Here the

Government has drawn reasonable inferences based upon the

evidence it has. That evidence includes attempts by the PRC to

collect data on U.S. persons by leveraging Chinese-company

investments and partnerships with U.S. organizations. It also

includes the recent disclosure by former TikTok employees

that TikTok employees “share U.S. user data on PRC-based

internal communications systems that China-based ByteDance

employees can access,” and that the ByteDance subsidiary

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responsible for operating the platform in the United States

“approved sending U.S. data to China several times.” In short,

the Government’s concerns are well founded, not speculative.

TikTok next contends that, because other companies with

operations in China collect data in the United States, its data

collection is not the Government’s real concern. As already

explained, however, the Act complements the Data Broker

Law, which limits the access of any foreign adversary country

(or entity controlled by such a country) to data from third-party

brokers. The Act also includes a generally applicable framework through which the Executive can address other foreign

adversary controlled applications in the future. That the Act

does not fully solve the data collection threat posed by the PRC

does not mean it was not a step in the right direction. Moreover,

TikTok does not identify any company operating a comparable

platform in the United States with equivalent connections to the

PRC. Nor would it be dispositive if TikTok had done so

because the political branches are free to “focus on their most

pressing concerns.” Williams-Yulee v. Florida Bar, 575 U.S.

433, 449 (2015). The Government’s multi-year efforts to

address the risks posed by the TikTok platform support the

conclusion that TikTok was, in fact, the Government’s most

pressing concern.

(iii) Content manipulation

Preventing covert content manipulation by an adversary

nation also serves a compelling governmental interest. The

petitioners object for two reasons, neither of which persuades.

First, TikTok incorrectly frames the Government’s

justification as suppressing propaganda and misinformation.

The Government’s justification in fact concerns the risk of the

PRC covertly manipulating content on the platform. For that

reason, again, the Act is directed only at control of TikTok by

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a foreign adversary nation. At points, TikTok also suggests the

Government does not have a legitimate interest in countering

covert content manipulation by the PRC. To the extent that is

TikTok’s argument, it is profoundly mistaken. “At the heart of

the First Amendment lies the principle that each person should

decide for himself or herself the ideas and beliefs deserving of

expression, consideration, and adherence. Our political system

and cultural life rest upon this ideal.” Turner I, 512 U.S. at 641.

When a government — domestic or foreign — “stifles speech

on account of its message . . . [it] contravenes this essential

right” and may “manipulate the public debate through coercion

rather than persuasion.” Id.; see also Nat’l Rifle Ass’n of Am.,

602 U.S. at 187 (explaining that at the core of the First

Amendment “is the recognition that viewpoint discrimination

is uniquely harmful to a free and democratic society”).

In this case, a foreign government threatens to distort free

speech on an important medium of communication. Using its

hybrid commercial strategy, the PRC has positioned itself to

manipulate public discourse on TikTok in order to serve its

own ends. The PRC’s ability to do so is at odds with free speech

fundamentals. Indeed, the First Amendment precludes a

domestic government from exercising comparable control over

a social media company in the United States. See NetChoice,

144 S. Ct. at 2407 (explaining that a state government “may not

interfere with private actors’ speech” because the First

Amendment prevents “the government from tilting public

debate in a preferred direction” (cleaned up)). Here the

Congress, as the Executive proposed, acted to end the PRC’s

ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.

Like the Supreme Court, “We also find it significant that

[the Government] has been conscious of its own responsibility

to consider how its actions may implicate constitutional

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concerns.” Humanitarian Law Project, 561 U.S. at 35. Rather

than attempting itself to influence the content that appears on a

substantial medium of communication, the Government has

acted solely to prevent a foreign adversary from doing so. As

our concurring colleague explains, this approach follows the

Government’s well-established practice of placing restrictions

on foreign ownership or control where it could have national

security implications. Concurring Op. 2–5; see 47 U.S.C.

§ 310(a)–(b) (restricting foreign control of radio licenses); Pac.

Networks Corp., 77 F.4th at 1162 (upholding the FCC’s decision to revoke authorizations to operate communications lines);

Moving Phones P’ship v. FCC, 998 F.2d 1051, 1055, 1057

(D.C. Cir. 1993) (upholding the Executive’s application of the

Communications Act’s “ban on alien ownership” of radio

licenses “to safeguard the United States from foreign influence

in broadcasting” (cleaned up)); see also Palestine Info. Off. v.

Shultz, 853 F.2d 932, 936, 945 (D.C. Cir. 1988) (upholding the

Executive’s divestiture order under the Foreign Missions Act

regarding an organization the activities of which “were deemed

inimical to America’s interests”); 49 U.S.C. § 40102(a)(2),

(15) (requiring that a U.S. “air carrier” be “under the actual

control of citizens of the United States”).

Consequently, the Act is not, as the User Petitioners suggest, an effort to “control the flow of ideas to the public.”

Lamont v. Postmaster Gen., 381 U.S. 301, 306–07 (1965). Nor

are the User Petitioners correct to characterize the TikTokspecific provisions as a prior restraint on speech or an infringement on associational rights. Were a divestiture to occur,

TikTok Inc.’s new owners could circulate the same mix of

content as before without running afoul of the Act. People in

the United States could continue to engage with content on

TikTok as at present. The only change worked by the Act is

that the PRC could not “manipulate the public debate through

coercion rather than persuasion.” Turner I, 512 U.S. at 641.

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TikTok resists this conclusion by emphasizing stray comments from the congressional proceedings that suggest some

congresspersons were motivated by hostility to certain content.

The Supreme Court, however, has repeatedly instructed that

courts should “not strike down an otherwise constitutional

statute on the basis of an alleged illicit legislative motive.”

O’Brien, 391 U.S. at 383; City of Renton v. Playtime Theaters,

Inc., 475 U.S. 41, 47–49 (1986) (rejecting speculation about

the “motivating factor” behind an ordinance justified without

reference to speech); Turner I, 512 U.S. at 652 (similar). The

Act itself is the best evidence of the Congress’s and the

President’s aim. The narrow focus of the Act on ownership by

a foreign adversary and the divestiture exemption provide

convincing evidence that ending foreign adversary control, not

content censorship, was the Government’s objective.

The petitioners nevertheless contend the divestiture provisions and an exclusion from the generally applicable track

betray the Government’s real purpose to ban TikTok as a

means of censoring content. They claim the divestiture exemption cannot be satisfied in the time allowed by the Act, which

effectively makes it a ban. Conversely, they argue an exclusion

from the definition of “covered company” — for entities that

operate an “application whose primary purpose is to allow

users to post product reviews, business reviews, or travel

information and reviews,” § 2(g)(2)(B) — creates a loophole

to the generally applicable track so large that no other company

is likely ever to be subjected to the prohibitions of the Act.10

The upshot, according to TikTok, is that the Congress

The parties offer competing interpretations of this exclusion.

Because we do not doubt the Government’s “proffered . . . interest

actually underlies the law” under either interpretation, we have no

occasion to interpret that provision in this case. Blount v. SEC,

61 F.3d 938, 946 (D.C. Cir. 1995) (quotation omitted).

Page 45 of 92

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Document #2088317

Filed: 12/06/2024

“purpose-built the Act to ban TikTok because it objects to

TikTok’s content.” TikTok Reply Br. 28.

We discern no such motive from the divestiture provisions

or the design of the generally applicable framework. Although

the Government does not rebut TikTok’s argument that 270

days is not enough time

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