All The Things TikTok v. Garland Did Not Decide

Today, the Court affirmed the D.C. Circuit in TikTok v. Garland. In a fairly short period, the Justices mustered a twenty page per curiam decision. Justice Sotomayor wrote a brief concurrence, in which she disagreed with the Court on burdened protected speech. Justice Gorsuch concurred in judgment, disagreeing with the Court on whether the law was content neutral. My prediction of the “administrative injunction” did not come to pass. The opinion is fairly tight. It reads like Roberts and/or Kagan wrote it. I suspect they started on this before briefing concluded.

What struck me about the decision was how much the Court did not decide. One trick is to search the case for hedge words like “need not” and “assume.”

Here are a few highlights.

First, the Court announces a ticket good for one ride: like Bush v. Gore, this case is limited to its unique circumstances. No ruling for the ages here:

As Justice Frankfurter advised 80 years ago in considering the application of established legal rules to the “totally newproblems” raised by the airplane and radio, we should take care not to “embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944). That caution is heightened in these cases, given the expedited time allowed for our consideration. [FN1] Our analysis must be understood to be narrowly focused in light of these circumstances.

[FN1] Applications for an injunction pending review were filed on December16, 2024; we construed the applications as petitions for a writ of certiorari and granted them on December 18, 2024; and oral argument was held on January 10, 2025.

Roberts likes citing Frankfurter, hence my suspicion above.

Second, the Court doesn’t actually decide if the law triggers heightened review.

This Court has not articulated a clear framework for determining whether a regulation of non-expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review. We need not do so here. We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny.

Justice Sotomayor would have resolved the First Amendment isue:

I join all but Part II.A of the Court’s per curiam opinion.I see no reason to assume without deciding that the Act implicates the First Amendment because our precedent leavesno doubt that it does.

No one else joined Sotomayor on this point. We cannot assume that everyone else joined the per curiam opinion, but that is a good assumption in this case.

Third, the Court finds that the statute, as applied to TikTok, is “facially content neutral.” But the Court declines to consider

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