TikTok Inc. v. Garland

1

TikTok Inc. and ByteDance Ltd., Petitioners v. Merrick B. Garland, in his official capacity as Attorney General of the United States, Respondent

Nos. 24-1113, 24-1130, 24-1183

United States Court of Appeals, District of Columbia Circuit

December 6, 2024

Argued September 16, 2024

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 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.

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.

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, Raul 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

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

GINSBURG, SENIOR CIRCUIT JUDGE

I. Background 8

A. The TikTok Platform 8

B. The Petitioners 9

C. National Security Concerns 11

D. The Act 15

1. Foreign adversary controlled applications 16

2. Prohibitions 18

3. The divestiture exemption 19

E. Procedural History 20

II. Analysis 20

A. Standing and Ripeness 21

B. The First Amendment 24

1. Heightened scrutiny applies. 24

2. The Act satisfies strict scrutiny. 32

a. The Government's justifications are compelling. 33

(i) National security justifications 33

(ii) Data collection 38

(iii) Content manipulation 42

b. The Act is narrowly tailored. 48

(i) TikTok's proposed NSA 49

(ii) Other options 53

(iii) Overinclusive / underinclusive 55

C. Equal Protection 57

D. The Bill of Attainder Clause 59

E. The Takings Clause 63

F. Alternative Relief 64

III. Conclusion 65

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.

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 Chinese engineers,...