The TikTok Majority Opinion
Here’s a quick summary of the unsigned majority opinion (called a “per curiam”), joined by all the Justices except Justice Gorsuch (who concurred in the result, but with a different analysis) and (in part) Justice Sotomayor:
[1.] The Court expresses some doubt about whether the law triggers First Amendment scrutiny at all. The Court views the law as regulating “corporate control” over TikTok, rather than restricting speech directly, which makes it unclear (in the Court’s view) whether the law should be treated as a “direct regulation” of expression.
The Court recognizes that ” the Act’s prohibitions, TikTok-specific designation, and divestiture requirement ‘impose a disproportionate burden upon’ their First Amendment activities,” and acknowledges that “an effective ban on a social media platform with 170 million U. S. users certainly burdens those users’ expressive activity in a non-trivial way.” But while the law “will burden various First Amendment activities, including content moderation, content generation, access to a distinct medium for expression, association with another speaker or preferred editor, and receipt of information and ideas,”
[A] law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny. Those differences—the Act’s focus on a foreign government, the congressionally determined adversary relationship between that foreign government and the United States, and the causal steps between the regulations and the alleged burden on protected speech—may impact whether First Amendment scrutiny applies.
But after all that, the Court still “assume[s] without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny,” because it concludes that they would pass the proper scrutiny (see below).
This is where Justice Sotomayor parts ways with the majority:
TikTok engages in expressive activity by “compiling and curating” material on its platform. Moody v. NetChoice (2024). Laws that “impose a disproportionate burden” upon those engaged in expressive activity are subject to heightened scrutiny under the First Amendment. Arcara v. Cloud Books, Inc. (1986); see Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue (1983). The challenged Act plainly imposes such a burden: It bars any entity from distributing TikTok’s speech in the United States, unless TikTok undergoes a qualified divestiture. The Act, moreover, effectively prohibits TikTok from collaborating with certain entities regarding its “content recommendation algorithm” even following a qualified divestiture. And the Act implicates content creators’ “right to associate” with their preferred publisher “for the purpose of speaking.” That, too, calls for First Amendment scrutiny.
[2.] The Court concludes the law is content-neutral, because it targets TikTok “due to a foreign adversary’s control over the platform,” and “do[es] not target particular speech based upon its content … or function or purpose”; it thus does not target “the topic discussed or the idea or message expressed.” And “The Government also supports the challenged provisions with a content-neutral justification: preventing China from c
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