For You or Forbidden: TikTok v. Garland and the TikTok “Ban”

Kyra Wisneski

In TikTok Inc. v. Garland, the Supreme Court considered whether two provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act (the “Act,” or “PAFACA”) violated the petitioners’ First Amendment rights. The petitioners included a group of U.S.-based TikTok users (“creator-petitioners”), TikTok itself, and its parent company, ByteDance. The Court first assumed, without deciding, that the Act implicated the First Amendment. The Court then concluded that the Act was facially content-neutral and therefore subject to intermediate scrutiny. Finally, the Court held that the Act, as applied to the petitioners, satisfied intermediate scrutiny because it was sufficiently tailored to serve the government’s important interest in preventing China, a foreign adversary, from accessing U.S. user data.

The Court should have held that the challenged provisions were explicitly subject to First Amendment scrutiny as they imposed a disproportionate burden on the petitioners’ First Amendment rights. The Court correctly concluded that the Act was facially content-neutral and justified by a content-agonistic purpose: preventing a foreign adversary from exploiting sensitive data from 170 million U.S. users. On that basis, intermediate scrutiny was the appropriate standard of review, and the Act satisfied this standard. However, the Court failed to meaningfully engage with the government’s second asserted justification: preventing a foreign adversary from covertly manipulating content on TikTok. This justification is inherently content-based and, as an independent rationale, warrants strict scrutiny. By declining to recognize it as such, the Court risks permitting impermissible regulations of speech to evade exacting judicial review under the guise of content manipulation.