With TikTok now banned in the US after the Supreme Court's decision on Friday that ruled that the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA) did not violate the First Amendment, we studied the court's ruling in detail to understand how TikTok's case against the government played out. In its Supreme Court appeal, TikTok had argued that the PAFACA aimed to regulate content, asserted that China was unlikely to request TikTok to turn over data, claimed that the rule does not target all applications that gather Americans' data, and argued that it places an unreasonable burden over First Amendment activities.
Supreme Court Justice Sonia Sotomayor Asserts That PAFACA Implicates First Amendment
The court started its decision by analyzing whether the portions of the PAFACA law challenged by TikTok qualified for scrutiny for violating the First Amendment. In doing so, the court considered whether the law "directly regulates protected expressive activity, or conduct with an expressive component." However, the court was unable to determine that it did since the law only targets the relationship between TikTok and its parent entity, ByteDance, with respect to the latter's ability to be influenced by the Chinese government.
The judges added that the petitioners, including a group of TikTok users, "have not identified any case in which this Court has treated a regulation of corporate control as a direct regulation of expressive activity or semi-expressive conduct."
Their judgment outlines that the key claim relating to the First Amendment made by the petitioners stemmed from the PAFACA's 270-day time frame. The Act required TikTok to either divest from ByteDance within 270 to 360 days or cease its US operations.
In their suit against PAFACA, TikTok had argued that since the timeframe was too short for a divestiture, the Act had effectively burdened its First Amendment activities such as the receipt of information and content moderation.
TikTok Ban Targets Foreign Control Over A Communications Platform & Not Free Speech, Says Supreme Court
However, the court ruled that the primary intent of the Act is to not limit First Amendment rights but to limit a foreign adversary's "control over a communications platform." The judges added that this control is "in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny."
Elaborating further, the ruling explains that the challenged rules of the PAFACA are "are facially content neutral and are justified by a content- neutral rationale." The rationale quoted by the judges uses two previous rulings to determine whether a law is content-based and violates First Amendment protections.
The first outlines that a law is content-based if it applies to speech based on the topic being discussed. The second determines content neutrality if it can be justified without reference to the targeted speech or if it was not enacted due to the government's disagreement with the speech.
The court notes that the PAFACA's provisions "do not target particular speech based upon its content," they do not "regulate speech based on its function or purpose," and they do not restrict TikTok "by reason of content on TikTok."
Supreme Court Dismisses Strict Scrutiny Of TikTok Ban Due To China's Ability To Control Data Of 170 Million Americans
The judges also argued against the petitioners' claims that the PAFACA was content-based since it only targeted TikTok and left out other platforms, such as those that provide product reviews. According to the court, its job is not to decide "whether that exclusion is content based." Instead, "[t]he question before the Court is whether the Act violates the First Amendment as applied to petitioners." It adds that the US government's claim that it has to prevent China from collecting the data of 170 million Americans is a sufficiently content-neutral justification.
However, while the court takes a step back and cites precedent to quote that "laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference," it quotes another precedent to counter the requirement for scrutiny by adding that it is "is unwarranted when the differential treatment is ‘justified by some special characteristic of ’ the particular [speaker] being regulated.”
According to the court, TikTok meets this special characteristic test as its special characteristic is"
a foreign adversary’s ability to leverage its control over the platform to collect vast amounts of personal data from 170 million U. S. users—that justify this differential treatment.
The judges admitted and "emphasize[d] the inherent narrowness of our holding" of TikTok's ability to access the data of 170 million Americans as a special characteristic which allows for a waiver of scrutiny. As a result, they add a "law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations.
Supreme Court Notes Significant National Security Concerns Stemming From Chinese Entity Controlling TikTok
The next portion of the Supreme Court's judgment against TikTok notes in great detail the national security concerns stemming from China accessing the data of 170 million Americans. As per the judgment, TikTok's access of users' contacts, job information, photos, titles and other data creates cause for the government to worry that China could conduct corporate espionage, track government contractors and employees and build dossiers for blackmail. It also shares worries that "Chinese law enables China to require companies to surrender data to the government, 'making com- panies headquartered there an espionage tool' of China."
In response to the government's assertions, TikTok countered and stated that it it was far from certain that China might use TikTok's data for nefarious purposes since "China has more effective and efficient means of obtaining relevant information." The court struck the claim as it outlined that laws are often passed with incomplete information about the future and are designed to prevent potential future outcomes from occurring.
Further solidifying the PAFACA's provisions, the court notes that the Act sufficiently addresses the government's national security objective of preventing Chinese data gathering operations:
Neither the prohibitions nor the divestiture requirement, moreover, is “substantially broader than necessary to achieve” this national security objective. Ibid. Rather than ban TikTok outright, the Act imposes a conditional ban. The prohibitions prevent China from gathering data from U. S. TikTok users unless and until a qualified divestiture severs China’s control.
Judge Gorsuch Praises Court For Not Endorsing Government's Algorithm Manipulation Claim As Justification For TikTok Ban
TikTok and the other petitioners target the PAFACA's attempt to preserve national security by outlining a series of alternatives that the government could take. These include data-sharing restrictions and other actions that could also prevent China from accessing the data of 170 million Americans. In response, the court outlined that simply because alternatives are present does not mean the Act itself becomes invalid.
Finally, the petitioners also argued that the government's assertion that a foreign adversary could control TikTok's recommendation algorithm is based on content restrictions and requires tighter scrutiny than the court has afforded the PAFACA.
In response, the court outlines that the "record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone." In other words, the law would have been passed even if there was no concern about TikTok's algorithm being manipulated or used in a concealed manner, according to the Supreme Court.
In his concurring note, Justice Neil Gorsuch praised the court for refraining "from endorsing the government’s asserted interest in preventing 'the covert manipulation of content' as a justification for the law before us."
Justice Sonya Sotomayor's concurring note raised an interesting distinction. In its decision, the court had assumed "without deciding that the challenged provisions fall within this category [of triggering greater review] and are subject to First Amendment scrutiny."
However, Sotomayor sees "no reason to assume without deciding that the Act implicates the First Amendment because our precedent leaves no doubt that it does." Yet, the judge agrees with the decision and concludes her note by agreeing "that the Act survives petitioners’ First Amendment challenge."
About the author: Ramish is a seasoned technology writer and editor with more than a decade of experience. He specializes in semiconductor fabrication and market analysis. With a background in finance and supply chain management - via his bachelors in Finance and a micromasters in supply chain management from MIT - Ramish combines financial rigor with deep industry insight to deliver accurate and authoritative coverage.
Follow Wccftech on Google to get more of our news coverage in your feeds.
