TikTok, Inc. v. Garland

Wikipedia · Justia · Docket · oyez.org

Argued on Jan 10, 2025.

Petitioner: TikTok, Inc.
Respondent: Merrick B. Garland, Attorney General.

Advocates:

Noel J. Francisco (for the Petitioners TikTok, Inc., et al.)
Jeffrey L. Fisher (for the Petitioners Brian Firebaugh, et al.)
Elizabeth B. Prelogar (for the Respondent)

Facts of the case (from oyez.org)

TikTok is a social media platform with approximately 170 million monthly U.S. users that allows users to create and watch short video clips. The platform’s content is determined by a recommendation engine originally developed by ByteDance, a China-based company that is TikTok’s ultimate parent. While TikTok created a U.S. subsidiary (TTUSDS) and partnered with Oracle to handle U.S. operations and data security, ByteDance retains significant control over the platform's global operations and source code development.

In response to national security concerns about Chinese influence over TikTok, both the Trump and Biden administrations attempted various measures to address these risks, including attempted forced divestiture and transaction bans. After lengthy negotiations over TikTok’s proposed National Security Agreement proved unsuccessful, Congress passed a law in 2024 requiring “foreign adversary controlled applications” (specifically including TikTok) to divest from foreign ownership or face effective shutdown through prohibitions on U.S. companies providing hosting and distribution services. The law takes effect on January 19, 2025, though companies can avoid the prohibitions by completing a qualified divestiture that eliminates foreign adversary control and operational relationships.

Three sets of petitioners (ByteDance/TikTok, Based Politics, and eight individual TikTok creators) filed constitutional challenges to the Act in May 2024, but the U.S. Court of Appeals for the D.C. Circuit concluded that the Act survived constitutional scrutiny.

Question

Does the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to TikTok, violate the First Amendment?

Tom Berserik

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