TikTok Inc. v. Garland

P R E L I M I N A R Y P R I N T
Volume 604 U. S. Part 1
Pages 56–85
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
January 17, 2025
REBECCA A. WOMELDORF
reporter of decisions
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56 OCTOBER
TERM, 2025
Syllabus
TIKTOK INC. et al. v. GARLAND, ATTORNEY
GENERAL
certiorari
to the united states court of appeals for
the district of columbia circuit
No. 24–656. Argued January 10, 2025—Decided January 17, 2025*
TikTok is a social media platform with more than 170 million U. S. users.
While TikTok Inc. operates the platform in the United States, its ulti-
mate parent company is ByteDance Ltd., a privately held company with
operations in China. ByteDance Ltd. owns, develops, and maintains
the proprietary algorithm TikTok uses to generate a personalized con-
tent feed for each TikTok user. Under Chinese law, ByteDance Ltd. is
required to “assist or cooperate” with the Chinese Government's “intel-
ligence work,” and the Chinese Government has “the power to access
and control private data” the company holds. H. R. Rep. No. 118–417,
p. 4 (2024).
Government offcials in the United States have taken repeated actions
to address national security concerns regarding the relationship be-
tween China and TikTok. Against that backdrop, Congress enacted—
with broad bipartisan support—the Protecting Americans from Foreign
Adversary Controlled Applications Act, 138 Stat. 955. The Act makes
it unlawful for any entity to provide certain services to “distribute,
maintain, or update” a “foreign adversary controlled application” in the
United States. § 2(a)(1). Such applications expressly include any ap-
plication that is “operated, directly or indirectly,” by “ByteDance Ltd.”
or “TikTok.” § 2(g)(3)(A). The Act's prohibitions as to those applica-
tions are effective beginning January 19, 2025. See § 2(a)(2). The Act
provides, however, that TikTok can avoid the Act's prohibitions by un-
dergoing a “qualifed divestiture”—one the President determines will
result, among other things, in the application “no longer being controlled
by a foreign adversary.” § 2(g)(6)(A).
ByteDance Ltd. and TikTok Inc.—along with two sets of TikTok users
and creators (creator petitioners)—fled petitions for review in the D. C.
Circuit, challenging the constitutionality of the Act. As relevant here,
petitioners argued that the Act's prohibitions, TikTok-specific for-
eign adversary controlled application designation, and divestiture re-
*Together with No. 24–657, Firebaugh et al. v. Garland, Attorney Gen-
eral, also on certiorari to the same court.

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57
Syllabus
quirement violate the First Amendment. The D. C. Circuit denied the
petiti
ons, holding that the Act does not violate petitioners' First Amend-
ment rights. The Court granted certiorari to consider petitioners'
First Amendment challenges on an expedited basis.
Held: The challenged provisions do not violate petitioners' First Amend-
ment rights. Pp. 67–80.
(a) The Court frst considers whether the challenged provisions are
subject to First Amendment scrutiny. Laws that directly regulate ex-
pressive conduct can, but do not necessarily, trigger such review. See
R. A. V. v. St. Paul, 505 U. S. 377, 382–386. The Court has also applied
First Amendment scrutiny in “cases involving governmental regulation
of conduct that has an expressive element,” and to “some statutes which,
although directed at activity with no expressive component, impose a
disproportionate burden upon those engaged in protected First Amend-
ment activities.” Arcara v. Cloud Books, Inc., 478 U. S. 697, 703–704.
The Court assumes without deciding that the challenged provisions
are subject to First Amendment scrutiny. It is not clear whether the
Act directly regulates protected expressive activity, or conduct with an
expressive component. Indeed, the Act directly regulates ByteDance
and TikTok only through the divestiture requirement, and it does not
regulate the creator petitioners at all. In any event, petitioners'
arguments more closely approximate a claim that the challenged provi-
sions, which in effect will ban TikTok in the United States, dispropor-
tionately burden petitioners' First Amendment activities. The Court
has not previously articulated a clear framework for determining
whether a regulation of non-expressive activity that disproportionately
burdens those engaged in expressive activity triggers heightened re-
view, and does not do so in these cases. The Court instead assumes
without deciding that the challenged provisions fall within this category.
Pp. 67–69.
(b) The challenged provisions trigger only intermediate scrutiny.
Pp. 70–73.
(1) “Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and may be
justifed only if the government proves that they are narrowly tailored
to serve compelling state interests.” Reed v. Town of Gilbert, 576 U. S.
155, 163. Content-neutral laws, in contrast, are subject only to inter-
mediate scrutiny because they generally “pose a less substantial risk of
excising certain ideas or viewpoints from the public dialogue.” Turner
Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642. Under that
standard, the Court will sustain a content-neutral law “if it advances

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Syllabus
important governmental interests unrelated to the suppression of free
speech
and does not burden substantially more speech than necessary
to further those interests.” Turner Broadcasting System, Inc. v. FCC,
520 U. S. 180, 189.
The Court has identifed two forms of content-based speech regula-
tion. First, a law is content based on its face if it “applies to particular
speech because of the topic discussed or the idea or message expressed.”
Reed, 576 U. S., at 163. Second, a facially content-neutral law is none-
theless treated as a content-based regulation of speech if it “cannot be
justifed without reference to the content of the regulated speech” or
was “adopted by the government because of disagreement with the mes-
sage the speech conveys.” Id., at 164 (internal quotation marks omit-
ted). Pp. 70–71.
(2) The challenged provisions are facially content neutral. They
impose TikTok-specifc prohibitions due to a foreign adversary's control
over the platform and make divestiture a prerequisite for the platform's
continued operation in the United States. They do not target speech
based upon its content, or regulate speech based on its function or pur-
pose. Nor do they impose a content-based restriction, penalty, or
burden.
Petitioners argue that the Act is content based on its face because it
excludes from the defnition of “covered company” any company that
operates an application “whose primary purpose is to allow users to post
product reviews, business reviews, or travel information and reviews.”
§ 2(g)(2)(B). But that exclusion does not apply to the Act's specifc des-
ignation of TikTok as a covered application. §§ 2(g)(3)(A)–(B). As
such, the exclusion is not within the scope of petitioners' as-applied chal-
lenge. Pp. 71–72.
(3) The Government also supports the challenged provisions with a
content-neutral justifcation: preventing China from collecting sensitive
data from 170 million U. S. TikTok users. That data collection justif-
cation neither references the content of speech on TikTok nor refects
disagreement with the message such speech conveys. Because the jus-
tifcation refects a “purpos[e] unrelated to the content of expression,”
it is content neutral. Ward v. Rock Against Racism, 491 U. S. 781,
791. P. 72.
(4) The Act's TikTok-specifc distinctions, moreover, do not trigger
strict scrutiny. While “laws favoring some speakers over others de-
mand strict scrutiny when the legislature's speaker preference refects
a content preference,” Turner Broadcasting System, Inc., 512 U. S., at
658, such scrutiny “is unwarranted when the differential treatment is
`justifed by some special characteristic of ' the particular [speaker] being

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regulated,” id., at 660–661 (quoting Minneapolis Star & Tribune Co. v.
M
innesota Comm'r of Revenue, 460 U. S. 575, 585). Here, the chal-
lenged provisions regulate TikTok based on a content-neutral data col-
lection interest. And TikTok has special characteristics—a foreign ad-
versary's ability to leverage its control over the platform to collect vast
amounts of personal data from 170 million U. S. users—that justify dif-
ferential treatment. Pp. 72–73.
(c) As applied to petitioners, the Act satisfes intermediate scrutiny.
Pp. 73–78.
(1) The challenged provisions further an important Government in-
terest unrelated to the suppression of free expression. The Act's prohi-
bitions and divestiture requirement are designed to prevent China—a
designated foreign adversary—from leveraging its control over Byte-
Dance Ltd. to capture the personal data of U. S. TikTok users. This
objective qualifes as an important Government interest under interme-
diate scrutiny. TikTok collects extensive personal information from
and about its users. Access to such detailed information about U. S.
users, the Government worries, could enable China to track the loca-
tions of federal workers, build dossiers for blackmail, and conduct corpo-
rate espionage. Rather than meaningfully dispute the scope of the data
TikTok collects or the ends to which it may be used, petitioners argue
that it is unlikely that China would compel TikTok to turn over user
data for intelligence purposes. The Court, however, affords the Gov-
ernment's informed judgment substantial respect in the national secu-
rity and foreign policy contexts. And the Government's determination
that China might leverage its relationship with ByteDance Ltd. to ac-
cess U. S. TikTok users' data is at least a reasonable inference based on
substantial evidence. The Court also rejects petitioners' argument
that the Act is underinclusive as to the Government's data protection
rationale. On this record, Congress was justifed in specifcally ad-
dressing its TikTok-related national security concerns. Pp. 73–76.
(2) As applied to petitioners, the Act is suffciently tailored to ad-
dress the Government's data collection interest. Intermediate scrutiny
is satisfed if the challenged regulation “ `promotes a substantial govern-
ment interest that would be achieved less effectively absent the regula-
tion' ” and does not “burden substantially more speech than is neces-
sary.” Ward, 491 U. S., at 799 (quoting United States v. Albertini, 472
U. S. 675, 689; alterations omitted). That standard is met here. The
prohibitions account for the fact that, absent a qualifed divestiture, Tik-
Tok's very operation implicates the Government's data collection con-
cerns, while the requirements that make a divestiture “qualifed” ensure
that those concerns are addressed before TikTok resumes U. S. opera-

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60 TIKTOK
INC. v. GARLAND
Syllabus
tions. While petitioners offer a series of preferred alternatives that
they
assert would equally address the Government's data collection in-
terest, those alternatives ignore the latitude the Court affords the Gov-
ernment to design regulatory solutions to address content-neutral in-
terests. The Court will not override the Government's judgment
respecting content-neutral regulations so long as the Government's pol-
icy is “grounded on reasonable factual fndings supported by evidence
that is substantial for a legislative determination.” Turner Broadcast-
ing System, Inc., 520 U. S., at 224. Those requirements are met here.
Pp. 76–78.
(d) Beyond data collection concerns, the Government asserts an inter-
est in preventing a foreign adversary from controlling the recommenda-
tion algorithm that runs a widely used U. S. communications platform
and from wielding that control to alter the content on the platform in
an undetectable manner. In petitioners' view, that rationale is a
content-based justifcation that triggers strict scrutiny. Petitioners
have not pointed to any cases in which the Court has assessed the appro-
priate level of First Amendment scrutiny for an Act of Congress justi-
fed on both content-neutral and content-based grounds. They assert,
however, that the challenged provisions are subject to—and fail—strict
scrutiny because Congress would not have passed the provisions absent
the foreign adversary control rationale. The Court does not determine
the proper standard here. Even assuming the Government has offered
a content-based justifcation for the challenged provisions, petitioners'
argument fails under the standard they propose: The record before the
Court adequately supports the conclusion that Congress would have
passed the challenged provisions based on the data collection justifca-
tion alone. Pp. 78–80.
122 F. 4th 930, affrmed.
Noel J. Francisco argued the cause for petitioners TikTok
Inc. et al. With him on the brief were Hashim M. Moop-
pan, Kelly Holt Rodriguez, Andrew J. Pincus, Avi M.
Kupfer, Alexander A. Berengaut, David M. Zionts, Megan
A. Crowley, and John E. Hall.
Jeffrey L. Fisher argued the cause for petitioners Fire-
baugh et al. With him on the brief were Joshua Revesz,
Jacob Huebert, Jeffrey M. Schwab, Ambika Kumar, Adam
S. Sieff, James R. Sigel, and Elizabeth A. McNamara.
Solicitor General Prelogar argued the cause for respond-
ent in both cases. With her on the brief were Principal

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as: 604 U. S. 56 (2025)
61
Counsel
Deputy Assistant Attorney General Boynton, Deputy Solic-
i
tor General Kneedler, Sopan Joshi, Mark R. Freeman,
Sharon Swingle, Daniel Tenny, Casen B. Ross, Sean R.
Janda, and Brian J. Springer.†
†Briefs of amici curiae urging reversal in both cases were fled for the
Knight First Amendment Institute at Columbia University et al. by Ja-
meel Jaffer, Ramya Krishnan, and Alex Abdo; for Members of Congress
by Theodore J. Boutrous, Jr., Nicola T. Hanna, Patrick J. Fuster, Thomas
M. Donovan, Blaine H. Evanson, and Christine A. Budasoff; for Social
and Racial Justice Nonprofts by Travis LeBlanc, Matt K. Nguyen, Kath-
leen R. Hartnett, and Jamie D. Robertson; and for Susan A. Aaronson
et al. by Mark S. Davies.
Briefs of amici curiae urging reversal in No. 24–656 were fled for First
Amendment and Internet Law Professors by Michael Gottlieb; and for
the Foundation for Individual Rights and Expression et al. by Robert
Corn-Revere.
Briefs of amici curiae urging affrmance in both cases were fled for the
State of Montana et al. by Austin Knudsen, Attorney General of Montana,
Christian B. Corrigan, Solicitor General, Peter M. Torstensen, Jr., Deputy
Solicitor General, by Jason S. Miyares, Attorney General of Virginia,
Erika L. Maley, Solicitor General, Kevin M. Gallagher, Principal Deputy
Solicitor General, and Michael Dingman, Assistant Solicitor General, and
by the Attorneys General for their respective States as follows: Steve Mar-
shall of Alabama, Tim Griffn of Arkansas, Ashley Moody of Florida,
Christopher M. Carr of Georgia, Raúl R. Labrador of Idaho, Theodore E.
Rokita of Indiana, Brenna Bird of Iowa, Russell Coleman of Kentucky,
Liz Murrill of Louisiana, Lynn Fitch of Mississippi, Andrew Bailey of
Missouri, Michael T. Hilgers of Nebraska, John M. Formella of New
Hampshire, Drew Wrigley of North Dakota, Dave Yost of Ohio, Gentner
F. Drummond of Oklahoma, Alan Wilson of South Carolina, Marty J.
Jackley of South Dakota, Jonathan Skrmetti of Tennessee, and Sean D.
Reyes of Utah; for the American Free Enterprise Chamber of Commerce
by Jonathan Berry and William P. Barr; for Former Federal Communica-
tions Commission Offcials et al. by Thomas M. Johnson, Jr., and Jeremy
J. Broggi; for Former National Security Offcials by Thomas R. McCarthy
and Kathleen S. Lane; for the Foundation for Defense of Democracies by
Peter C. Choharis and Arnon D. Siegel; and for John R. Moolenaar et al.
by Thomas M. Johnson, Jr., and Jeremy J. Broggi.
Briefs of amici curiae were fled in both cases for Advancing American
Freedom, Inc., et a l. by J. Marc W h ea t; for the Amer ican Civ il
Liberties Union et al. by Patrick Toomey, Ashley Gorski, Vera Eidelman,
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62 TIKTOK
INC. v. GARLAND
Per Curiam
Per Curiam.
As
of January 19, the Protecting Americans from Foreign
Adversary Controlled Applications Act will make it unlawful
for companies in the United States to provide services to
distribute, maintain, or update the social media platform Tik-
Tok, unless U. S. operation of the platform is severed from
Chinese control. Petitioners are two TikTok operating en-
tities and a group of U. S. TikTok users. We consider
whether the Act, as applied to petitioners, violates the
First Amendment.
In doing so, we are conscious that the cases before us in-
volve new technologies with transformative capabilities.
This challenging new context counsels caution on our part.
As Justice Frankfurter advised 80 years ago in consider-
ing the application of established legal rules to the “totally
new problems” raised by the airplane and radio, we should
t ake care not to “embarrass the future. ” No r thw est
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.
1
Our analysis must be
understood to be narrowly focused in light of these
circumstances.
H in a Sham si, Cec i ll i a D. Wang, and Da v i d G reene; for Asian
Americans Advancing Justice ⎢AA JC et al. by Brendan Benedict and Noah
B. Baron; for the Campaign for Uyghurs et al. by Joel L. Thayer; for the
Cato Institute by Thomas A. Berry; for Floor64, Inc., by Catherine R.
Gellis; for the Forum for Constitutional Rights by Mahesha P. Subbara-
man; for Milton Mueller by Anne M. Voigts; for Zephyr Teachout et al.
by Joel L. Thayer, pro se; and for President Donald J. Trump by D. John
Sauer.
A brief of amicus curiae was fled in No. 24–656 for Chris Santospirito
et al., pro se.
1
Applications for an injunction pending review were fled on December
16, 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.
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63
Per Curiam
I
A
T
ikTok is a social media platform that allows users to cre-
ate, publish, view, share, and interact with short videos over-
laid with audio and text. Since its launch in 2017, the plat-
form has accumulated over 170 million users in the United
States and more than one billion worldwide. Those users
are prolifc content creators and viewers. In 2023, U. S. Tik-
Tok users uploaded more than 5.5 billion videos, which were
in turn viewed more than 13 trillion times around the world.
Opening the TikTok application brings a user to the “For
You” page—a personalized content feed tailored to the user's
interests. TikTok generates the feed using a proprietary al-
gorithm that recommends videos to a user based on the
user's interactions with the platform. Each interaction a
user has on TikTok—watching a video, following an account,
leaving a comment—enables the recommendation system to
further tailor a personalized content feed.
A TikTok user's content feed is also shaped by content
moderation and fltering decisions. TikTok uses automated
and human processes to remove content that violates the
platfor m's community g uidelines. See 1 App. 493– 497.
TikTok also promotes or demotes certain content to advance
its business objectives and other goals. See id., at 499–501.
TikTok is operated in the United States by TikTok Inc.,
an American company incorporated and headquartered
in California. TikTok Inc.'s ultimate parent company is
ByteDance Ltd., a privately held company that has opera-
tions in China. ByteDance Ltd. owns TikTok's proprietary
algorithm, which is developed and maintained in China.
The company is also responsible for developing portions of
the source code that runs the TikTok platform. ByteDance
Ltd. is subject to Chinese laws that require it to “assist or
cooperate” with the Chinese Government's “intelligence
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64 TIKTOK
INC. v. GARLAND
Per Curiam
work” and to ensure that the Chinese Government has “the
power
to access and control private data” the company holds.
H. R. Rep. No. 118–417, p. 4 (2024) (H. R. Rep.); see 2 App.
673–676.
B
1
In recent years, U. S. Government offcials have taken re-
peated actions to address national security concerns regard-
ing the relationship between China and TikTok.
In August 2020, President Trump issued an Executive
Order fnding that “the spread in the United States of mobile
applications developed and owned by companies in [China]
continues to threaten the national security, foreign policy,
and economy of the United States.” Exec. Order No. 13942,
3 CFR 412 (2021). President Trump determined that Tik-
Tok raised particular concerns, noting that the platform “au-
tomatically captures vast swaths of information from its
users” and is susceptible to being used to further the inter-
ests of the Chinese Government. Ibid. The President in-
voked his authority under the International Emergency Eco-
nomic Powers Act (IEEPA), 50 U. S. C. § 1701 et seq., and the
National Emergencies Act, 50 U. S. C. § 1601 et seq., to pro-
hibit certain “transactions” involving ByteDance Ltd. or its
subsidiaries, as identifed by the Secretary of Commerce. 3
CFR 413. The Secretary published a list of prohibited
transactions in September 2020. See 85 Fed. Reg. 60061.
But federal courts enjoined the prohibitions before they took
effect, fnding that they exceeded the Executive Branch's au-
thority under IEEPA. See generally TikTok Inc. v. Trump,
507 F. Supp. 3d 92 (DC 2020); Marland v. Trump, 498
F. Supp. 3d 624 (ED Pa. 2020).
Just days after issuing his initial Executive Order, Presi-
dent Trump ordered ByteDance Ltd. to divest all interests
and rights in any property “used to enable or support
ByteDance's operation of the TikTok application in the
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as: 604 U. S. 56 (2025)
65
Per Curiam
United States,” along with “any data obtained or derived
from”
U. S. TikTok users. 85 Fed. Reg. 51297. ByteDance
Ltd. and TikTok Inc. fled suit in the D. C. Circuit, challeng-
ing the constitutionality of the order. In February 2021, the
D. C. Circuit placed the case in abeyance to permit the Biden
administration to review the matter and to enable the parties
to negotiate a non-divestiture remedy that would address the
Government's national security concerns. See Order in Tik-
Tok Inc. v. Committee on Foreign Investment, No. 20–1444
(CADC, Feb. 19, 2021).
Throughout 2021 and 2022, ByteDance Ltd. negotiated
with Executive Branch offcials to develop a national security
agreement that would resolve those concerns. Executive
Branch offcials ultimately determined, however, that Byte-
Dance Ltd.'s proposed agreement did not adequately “miti-
gate the risks posed to U. S. national security interests.” 2
App. 686. Negotiations stalled, and the parties never fnal-
ized an agreement.
2
Against this backdrop, Congress enacted the Protecting
Americans from Foreign Adversary Controlled Applications
Act. Pub. L. 118–50, div. H, 138 Stat. 955. The Act makes
it unlawful for any entity to provide certain services to “dis-
tribute, maintain, or update” a “foreign adversary controlled
application” in the United States. § 2(a)(1). Entities that
violate this prohibition are subject to civil enforcement
actions and hefty monetary penalties. See §§ 2(d)(1)(A),
(d)(2)(B).
The Act provides two means by which an application may
be designated a “foreign adversary controlled application.”
First, the Act expressly designates any application that
is “operated, directly or indirectly,” by “ByteDance Ltd.”
or “ T ikTok, ” or any subsidiary or successor thereof.
§ 2(g)(3)(A). Second, the Act establishes a general designa-
tion framework for any application that is both (1) operated
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Per Curiam
by a “covered company” that is “controlled by a foreign ad-
versary
,” and (2) “determined by the President to present a
signifcant threat to the national security of the United
States,” following a public notice and reporting process.
§ 2(g)(3)(B). In broad terms, the Act defnes “covered com-
pany” to include a company that operates an application that
enables users to generate, share, and view content and
has more than 1,000,000 monthly active users. § 2(g)(2)(A).
The Act excludes from that defnition a company that oper-
ates an application “whose primary purpose is to allow users
to post product reviews, business reviews, or travel informa-
tion and reviews.” § 2(g)(2)(B).
The Act's prohibitions take effect 270 days after an
application is designated a foreign adversary controlled ap-
plication. § 2(a)(2). Because the Act itself designates appli-
cations operated by “ByteDance, Ltd.” and “TikTok,” prohi-
bitions as to those applications take effect 270 days after the
Act's enactment—January 19, 2025.
The Act exempts a foreign adversary controlled applica-
tion from the prohibitions if the application undergoes a
“qualifed divestiture.” § 2(c)(1). A “qualifed divestiture”
is one that the President determines will result in the appli-
cation “no longer being controlled by a foreign adversary.”
§ 2(g)(6)(A). The President must further determine that the
divestiture “precludes the establishment or maintenance of
any operational relationship between the United States oper-
ations of the [application] and any formerly affliated entities
that are controlled by a foreign adversary, including any co-
operation with respect to the operation of a content recom-
mendation algorithm or an agreement with respect to data
sharing.” § 2(g)(6)(B). The Act permits the President to
grant a one-time extension of no more than 90 days with
respect to the prohibitions' 270-day effective date if the Pres-
ident makes certain certifcations to Congress regarding
progress toward a qualifed divestiture. § 2(a)(3).
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67
Per Curiam
C
ByteDance
Ltd. and TikTok Inc.—along with two sets of
TikTok users and creators (creator petitioners)—fled peti-
tions for review in the D. C. Circuit, challenging the constitu-
tionality of the Act. As relevant here, petitioners argued
that the Act's prohibitions, TikTok-specifc foreign adversary
controlled application designation, and divestiture require-
ment violate the First Amendment.
The D. C. Circuit consolidated and denied the petitions,
holding that the Act does not violate petitioners' First
Amendment rights. 122 F. 4th 930, 940, 948–965 (CADC
2024). After frst concluding that the Act was subject to
heightened scrutiny under the First Amendment, the court
assumed without deciding that strict, rather than intermedi-
ate, scrutiny applied. Id., at 948–952. The court held that
the Act satisfed that standard, fnding that the Govern-
ment's national security justifcations—countering China's
data collection and covert content manipulation efforts—
were compelling, and that the Act was narrowly tailored to
further those interests. Id., at 952–965.
Chief Judge Srinivasan concurred in part and in the judg-
ment. Id., at 970. In his view, the Act was subject to inter-
mediate scrutiny, id., at 974–979, and was constitutional
under that standard, id., at 979–983.
We granted certiorari to decide whether the Act, as ap-
plied to petitioners, violates the First Amendment. 604
U. S. 1071 (2024).
II
A
At the threshold, we consider whether the challenged pro-
visions are subject to First Amendment scrutiny. Laws
that directly regulate expressive conduct can, but do not nec-
essarily, trigger such review. See R. A. V. v. St. Paul, 505
U. S. 377, 382–386 (1992). We have also applied First
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68 TIKTOK
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Per Curiam
Amendment scrutiny in “cases involving governmental regu-
lati
on of conduct that has an expressive element,” and to
“some statutes which, although directed at activity with no
expressive component, impose a disproportionate burden
upon those engaged in protected First Amendment activi-
ties.” Arcara v. Cloud Books, Inc., 478 U. S. 697, 703–704
(1986).
It is not clear that the Act itself directly regulates pro-
tected expressive activity, or conduct with an expressive
component. Indeed, the Act does not regulate the creator
petitioners at all. And it directly regulates ByteDance
Ltd. and TikTok Inc. only through the divestiture require-
ment. See § 2(c)(1). Petitioners, for their part, have not
identifed any case in which this Court has treated a regula-
tion of corporate control as a direct regulation of expressive
activity or semi-expressive conduct. See Tr. of Oral Arg.
37–40. We hesitate to break that new ground in this
unique case.
In any event, petitioners' arguments more closely approxi-
mate a claim that the Act's prohibitions, TikTok-specifc des-
ignation, and divestiture requirement “impose a dispro-
portionate burden upon” their First Amendment activities.
Arcara, 478 U. S., at 704. Petitioners assert—and the Gov-
ernment does not contest—that, because it is commercially
infeasible for TikTok to be divested within the Act's 270-
day timeframe, the Act effectively bans TikTok in the United
States. Petitioners argue that such a ban will burden vari-
ous First Amendment activities, including content modera-
tion, content generation, access to a distinct medium for ex-
pression, association with another speaker or preferred
editor, and receipt of information and ideas.
We have recognized a number of these asserted First
Amendment interests. See Moody v. NetChoice, LLC, 603
U. S. 707, 731 (2024) (“An entity `exercising editorial dis-
cretion in the selection and presentation' of content is `en-
gaged in speech activity.' ” (quoting Arkansas Ed. Television
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Comm'n v. Forbes, 523 U. S. 666, 674 (1998); alterations omit-
ted));
City of Ladue v. Gilleo, 512 U. S. 43, 54–58 (1994) (“Our
prior decisions have voiced particular concern with laws that
foreclose an entire medium of expression.”); Rumsfeld v.
Forum for Academic and Institutional Rights, Inc., 547
U. S. 47, 68 (2006) (“We have recognized a First Amendment
right to associate for the purpose of speaking, which we have
termed a `right of expressive association.' ”); Martin v. City
of Struthers, 319 U. S. 141, 143 (1943) (“The right of freedom
of speech and press . . . embraces the right to distribute
literature and necessarily protects the right to receive it.”
(citation omitted)).
2
And 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.
At the same time, 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 ac-
tivity that we have subjected to First Amendment scrutiny.
Those differences—the Act's focus on a foreign government,
the congressionally determined adversary relationship be-
tween 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.
This Court has not articulated a clear framework for de-
termining 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 pro-
visions fall within this category and are subject to First
Amendment scrutiny.
2
To the extent that ByteDance Ltd.'s asserted expressive activity oc-
curs abroad, that activity is not protected by the First Amendment. See
Agency for Int'l Development v. Alliance for Open Society Int'l Inc., 591
U. S. 430, 436 (2020) (“[F]oreign organizations operating abroad have no
First Amendment rights.”).
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B
1
“
At the heart of the First Amendment lies the principle
that each person should decide for himself or herself the
ideas and beliefs deserving of expression, consideration, and
adherence.” Turner Broadcasting System, Inc. v. FCC, 512
U. S. 622, 641 (1994) (Turner I). Government action that
suppresses speech because of its message “contravenes this
essential right.” Ibid. “Content-based laws—those that
target speech based on its communicative content—are pre-
sumptively unconstitutional and may be justifed only if the
government proves that they are narrowly tailored to serve
compelling state interests.” Reed v. Town of Gilbert, 576
U. S. 155, 163 (2015). Content-neutral laws, in contrast, “are
subject to an intermediate level of scrutiny because in most
cases they pose a less substantial risk of excising certain
ideas or viewpoints from the public dialogue.” Turner I,
512 U. S., at 642 (citation omitted). Under that standard, we
will sustain a content-neutral law “if it advances important
governmental interests unrelated to the suppression of free
speech and does not burden substantially more speech than
necessary to further those interests.” Turner Broadcasting
System, Inc. v. FCC, 520 U. S. 180, 189 (1997) (Turner II).
We have identifed two forms of content-based speech reg-
ulation. First, a law is content based on its face if it “applies
to particular speech because of the topic discussed or the
idea or message expressed.” Reed, 576 U. S., at 163; see id.,
at 163–164 (explaining that some facial distinctions defne
regulated speech by subject matter, others by the speech's
function or purpose). Second, a facially content-neutral law
is nonetheless treated as a content-based regulation of
speech if it “cannot be `justifed without reference to the con-
tent of the regulated speech' ” or was “adopted by the gov-
ernment `because of disagreement with the message the
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speech conveys. ' ” Id., at 164 (quoti ng Ward v. Rock
A
gainst Racism, 491 U. S. 781, 791 (1989)).
As applied to petitioners, the challenged provisions are fa-
cially content neutral and are justifed by a content-neutral
rationale.
a
The challenged provisions are facially content neutral.
They impose TikTok-specifc prohibitions due to a foreign
adversary's control over the platform and make divestiture
a prerequisite for the platform's continued operation in the
United States. They do not target particular speech based
upon its content, contrast, e. g., Carey v. Brown, 447 U. S.
455, 465 (1980) (statute prohibiting all residential picketing
except “peaceful labor picketing ”), or regulate speech based
on its function or purpose, contrast, e. g., Holder v. Humani-
tarian Law Project, 561 U. S. 1, 7, 27 (2010) (law prohibiting
providing material support to terrorists). Nor do they im-
pose a “restriction, penalty, or burden” by reason of content
on TikTok—a conclusion confrmed by the fact that petition-
ers “cannot avoid or mitigate” the effects of the Act by alter-
ing their speech. Turner I, 512 U. S., at 644. As to peti-
tioners, the Act thus does not facially regulate “particular
speech because of the topic discussed or the idea or message
expressed.” Reed, 576 U. S., at 163.
Petitioners argue that the Act is content based on its face
because it excludes from the defnition of “covered company”
any company that operates an application “whose primary
purpose is to allow users to post product reviews, business
reviews, or travel information and reviews.” § 2(g)(2)(B);
see Brief for Petitioners in No. 24–656, pp. 26–27 (Brief for
TikTok); Brief for Petitioners in No. 24–657, p. 26 (Brief for
Creator Petitioners). We need not decide whether that ex-
clusion is content based. The question before the Court is
whether the Act violates the First Amendment as applied
to petitioners. To answer that question, we look to the pro-
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visions of the Act that give rise to the effective TikTok ban
that
petitioners argue burdens their First Amendment
rights. The exclusion for certain review platforms, how-
ever, applies only to the general framework for designat-
ing applications controlled by “covered compan[ies],” not to
the TikTok-specifc designation. §§ 2(g)(3)(A)–(B). As such,
the exclusion is not within the scope of petitioners' as-
applied challenge.
b
The Government also supports the challenged provisions
with a content-neutral justifcation: preventing China from
collecting vast amounts of sensitive data from 170 million
U. S. TikTok users. 2 App. 628. That rationale is decidedly
content ag nostic. It neither references the content of
speech on TikTok nor refects disagreement with the mes-
sage such speech conveys. Cf. Ward, 491 U. S., at 792–793
(holding noise control and sound quality justifcations behind
city sound amplifcation guideline were content neutral).
Because the data collection justifcation refects a “pur-
pos[e] unrelated to the content of expression,” it is content
neutral. Id., at 791.
2
The Act's TikTok-specifc distinctions, moreover, do not
trigger strict scrutiny. See Brief for TikTok 26–27; Brief
for Creator Petitioners 24–26. It is true that “[s]peech re-
strictions based on the identity of the speaker are all too
often simply a means to control content.” Citizens United
v. Federal Election Comm'n, 558 U. S. 310, 340 (2010). For
that reason, “[r]egulations that discriminate among media,
or among different speakers within a single medium, often
present serious First Amendment concerns.” Turner I, 512
U. S., at 659. But while “laws favoring some speakers over
others demand strict scrutiny when the legislature's speaker
preference refects a content preference,” id., at 658, such
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scrutiny “is unwarranted when the differential treatment is
`
justifed by some special characteristic of ' the particular
[speaker] being regulated,” id., at 660–661 (quoting Minne-
apolis Star & Tribune Co. v. Minnesota Comm'r of Revenue,
460 U. S. 575, 585 (1983)).
For the reasons we have explained, requiring divestiture
for the purpose of preventing a foreign adversary from ac-
cessing the sensitive data of 170 million U. S. TikTok users
is not “a subtle means of exercising a content preference.”
Turner I, 512 U. S., at 645. The prohibitions, TikTok-
specifc designation, and divestiture requirement regulate
TikTok based on a content-neutral data collection interest.
And TikTok has special characteristics—a foreign adver-
sary's ability to leverage its control over the platform to col-
lect vast amounts of personal data from 170 million U. S.
users—that justify this differential treatment. “[S]peaker
distinctions of this nature are not presumed invalid under
the First Amendment.” Ibid.
While we fnd that differential treatment was justifed
here, however, we emphasize the inherent narrowness of
our holding. Data collection and analysis is a common
practice in this digital age. But TikTok's scale and suscepti-
bility to foreign adversary control, together with the vast
swaths of sensitive data the platform collects, justify differ-
ential treatment to address the Government's national secu-
rity concerns. A law targeting any other speaker would
by necessity ent ai l a disti nc t i nquiry and separate
considerations.
On this understanding, we cannot accept petitioners' call
for strict scrutiny. No more than intermediate scrutiny is
in order.
C
As applied to petitioners, the Act satisfes intermediate
scrutiny. The challenged provisions further an important
Government interest unrelated to the suppression of free ex-
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pression and do not burden substantially more speech than
necessary
to further that interest.
3
1
The Act's prohibitions and divestiture requirement are de-
signed to prevent China—a designated foreign adversary—
from leveraging its control over ByteDance Ltd. to capture
the personal data of U. S. TikTok users. This objective
qualifes as an important Government interest under inter-
mediate scrutiny.
Petitioners do not dispute that the Government has an im-
portant and well-grounded interest in preventing China from
collecting the personal data of tens of millions of U. S. TikTok
users. Nor could they. The platform collects extensive
personal information from and about its users. See H. R.
Rep., at 3 (Public reporting has suggested that TikTok's
“data collection practices extend to age, phone number, pre-
cise location, internet address, device used, phone contacts,
social network connections, the content of private messages
sent through the application, and videos watched.”); 1 App.
241 (Draft National Security Agreement noting that TikTok
collects user data, user content, behavioral data (including
“keystroke patterns and rhythms”), and device and network
data (including device contacts and calendars)). If, for ex-
ample, a user allows TikTok access to the user's phone con-
tact list to connect with others on the platform, TikTok can
access “any data stored in the user's contact list,” including
names, contact information, contact photos, job titles, and
notes. 2 App. 659. Access to such detailed information
about U. S. users, the Government worries, may enable
“China to track the locations of Federal employees and
contractors, build dossiers of personal information for black-
mail, and conduct corporate espionage.” 3 CFR 412. And
Chinese law enables China to require companies to surren-
3
Our holding and analysis are based on the public record, without refer-
ence to the classifed evidence the Government fled below.
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der data to the government, “making companies head-
quar
tered there an espionage tool” of China. H. R. Rep.,
at 4.
Rather than meaningfully dispute the scope of the data
TikTok collects or the ends to which it may be used, petition-
ers contest probability, asserting that it is “unlikely” that
China would “compel TikTok to turn over user data for
intelligence-gathering purposes, since China has more effec-
tive and effcient means of obtaining relevant information.”
Brief for TikTok 50 (internal quotation marks omitted). In
reviewing the constitutionality of the Act, however, we
“must accord substantial deference to the predictive judg-
ments of Congress.” Turner I, 512 U. S., at 665 (opinion of
Kennedy, J.). “Sound policymaking often requires legisla-
tors to forecast future events and to anticipate the likely im-
pact of these events based on deductions and inferences for
which complete empirical support may be unavailable.”
Ibid. Here, the Government's TikTok-related data collec-
tion concerns do not exist in isolation. The record refects
that China “has engaged in extensive and years-long efforts
to accumulate structured datasets, in particular on U. S. per-
sons, to support its intelligence and counterintelligence oper-
ations.” 2 App. 634.
Even if China has not yet leveraged its relationship with
ByteDance Ltd. to access U. S. TikTok users' data, petition-
ers offer no basis for concluding that the Government's de-
termination that China might do so is not at least a “reason-
able inferenc[e] based on substantial evidence.” Turner II,
520 U. S., at 195. We are mindful that this law arises in a
context in which “national security and foreign policy con-
cerns arise in connection with efforts to confront evolving
threats in an area where information can be diffcult to ob-
tain and the impact of certain conduct diffcult to assess.”
Humanitarian Law Project, 561 U. S., at 34. We thus af-
ford the Government's “informed judgment” substantial re-
spect here. Ibid.
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Petitioners further argue that the Act is underinclusive as
to
the Government's data protection concern, raising doubts
as to whether the Government is actually pursuing that in-
terest. In particular, petitioners argue that the Act's focus
on applications with user-generated and user-shared content,
along with its exclusion for certain review platforms, ex-
empts from regulation applications that are “as capable as
TikTok of collecting Americans' data.” Brief for TikTok 43;
see Brief for Creator Petitioners 48–49. But “the First
Amendment imposes no freestanding underinclusiveness
limitation,” and the Government “need not address all as-
pects of a problem in one fell swoop.” Williams-Yulee v.
Florida Bar, 575 U. S. 433, 449 (2015) (internal quotation
marks omitted). Furthermore, as we have already con-
cluded, the Government had good reason to single out Tik-
Tok for special treatment. Contrast Brown v. Entertain-
ment Merchants Assn., 564 U. S. 786, 802 (2011) (singling out
purveyors of video games for disfavored treatment without
a persuasive reason “raise[d] serious doubts about whether
the government [wa]s in fact pursuing the interest it
invoke[d], rather than disfavor ing a par ticu lar speaker
or viewpoint”). On this record, Congress was justifed in
specifcally addressing its TikTok-related national security
concerns.
2
As applied to petitioners, the Act is suffciently tailored to
address the Government's interest in preventing a foreign
adversary from collecting vast swaths of sensitive data about
the 170 million U. S. persons who use TikTok. To survive
intermediate scrutiny, “a regulation need not be the least
speech-restrictive means of advancing the Government's in-
terests.” Turner I, 512 U. S., at 662. Rather, the standard
“is satisfed `so long as the regulation promotes a substantial
government interest that would be achieved less effectively
absent the regulation' ” and does not “burden substantially
more speech than is necessary” to further that interest.
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Ward, 491 U. S., at 799 (quoting United States v. Albertini,
472
U. S. 675, 689 (1985); alterations omitted).
The challenged provisions meet this standard. The provi-
sions clearly serve the Government's data collection interest
“in a direct and effective way.” Ward, 491 U. S., at 800.
The prohibitions account for the fact that, absent a qualifed
divestiture, TikTok's very operation in the United States im-
plicates the Government's data collection concerns, while the
requirements that make a divestiture “qualifed” ensure that
those concerns are addressed before TikTok resumes U. S.
operations. Neither the prohibitions nor the divestiture re-
quirement, moreover, is “substantially broader than nec-
essary to achieve” this national security objective. Ibid.
Rather than ban TikTok outright, the Act imposes a condi-
tional ban. The prohibitions prevent China from gathering
data from U. S. TikTok users unless and until a qualifed di-
vestiture severs China's control.
Petitioners parade a series of alternatives—disclosure re-
quirements, data sharing restrictions, the proposed national
security agreement, the general designation provision—that
they assert would address the Government's data collection
interest in equal measure to a conditional TikTok ban.
Those alternatives do not alter our tailoring analysis.
Petitioners' proposed alternatives ignore the “latitude” we
afford the Government to design regulatory solutions to ad-
dress content-neutral interests. Turner II, 520 U. S., at 213.
“So long as the means chosen are not substantially broader
than necessary to achieve the government's interest, . . . the
regulation will not be invalid simply because a court con-
cludes that the government's interest could be adequately
served by some less-speech-restrictive alternative.” Ward,
491 U. S., at 800; see ibid. (regulation valid despite availabil-
ity of less restrictive “alternative regulatory methods”); Al-
bertini, 472 U. S., at 689; Clark v. Community for Creative
Non-Violence, 468 U. S. 288, 299 (1984); Members of City
Council of Los Angeles v. Taxpayers for Vincent, 466 U. S.
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789, 815–816 (1984). For the reasons we have explained, the
cha
llenged provisions are “not substantially broader than
necessary” to address the Government's data collection con-
cerns. Ward, 491 U. S., at 800. Nor did the Government
ignore less restrictive approaches already proven effective.
Contrast McCullen v. Coakley, 573 U. S. 464, 490–494 (2014)
(state law burdened substantially more speech than neces-
sary where State had not considered less restrictive meas-
ures successfully adopted by other jurisdictions). The va-
lidity of the challenged provisions does not turn on whether
we agree with the Government's conclusion that its chosen
regulatory path is best or “most appropriate.” Albertini,
472 U. S., at 689. “We cannot displace [the Government's]
judgment respecting content-neutral regulations with our
own, so long as its policy is grounded on reasonable factual
fndings supported by evidence that is substantial for a legis-
lative determination.” Turner II, 520 U. S., at 224. Those
requirements are met here.
D
In addition to the data collection concerns addressed
above, the Government asserts an interest in preventing a
foreign adversary from having control over the recommenda-
tion algorithm that runs a widely used U. S. communications
platform, and from being able to wield that control to alter
the content on the platform in an undetectable manner. See
2 App. 628. In petitioners' view, that rationale is a content-
based justifcation that “taint[s]” the Government's data col-
lection interest and triggers strict scrutiny. Brief for Tik-
Tok 41.
Petitioners have not pointed to any case in which this
Court has assessed the appropriate level of First Amend-
ment scrutiny for an Act of Congress justifed on both
content-neutral and content-based grounds. They assert,
however, that the challenged provisions are subject to—and
fail—strict scrutiny because Congress would not have passed
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79
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the provisions absent the foreign adversary control rationale.
See
id., at 41–42; Brief for Creator Petitioners 47–50. We
need not determine the proper standard for mixed-justifca-
tion cases or decide whether the Government's foreign ad-
versary control justifcation is content neutral. Even as-
suming that rationale turns on content, petitioners'
argument fails under the counterfactual analysis they pro-
pose: The record before us adequately supports the conclu-
sion that Congress would have passed the challenged provi-
sions based on the data collection justifcation alone.
To start, the House Report focuses overwhelmingly on the
Government's data collection concerns, noting the “breadth”
of TikTok's data collection, “the diffculty in assessing pre-
cisely which categories of data” the platform collects, the
“tight interlinkages” between TikTok and the Chinese Gov-
ernment, and the Chinese Government's ability to “coerc[e]”
companies in China to “provid[e] data.” H. R. Rep., at 3;
see id., at 5–12 (recounting a fve-year record of Government
actions raising and attempting to address those very con-
cerns). Indeed, it does not appear that any legislator dis-
puted the national security risks associated with TikTok's
data collection practices, and nothing in the legislative rec-
ord suggests that data collection was anything but an over-
riding congressional concern. We are especially wary of
parsing Congress's motives on this record with regard to an
Act passed with striking bipartisan support. See 170 Cong.
Rec. H1170 (Mar. 13, 2024) (352–65); 170 Cong. Rec. S2992
(Apr. 23, 2024) (79–18).
Petitioners assert that the text of the Act itself under-
mines this conclusion. In particular, they argue that the
Government's data collection rationale cannot justify the re-
quirement that a qualifed divestiture preclude “any opera-
tional relationship” that allows for “cooperation with respect
to the operation of a content recommendation algorithm or
an agreement with respect to data sharing.” § 2(g)(6)(B);
see Brief for Creator Petitioners 48–49. We disagree. The
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Opinion of Sotomayor, J.
Government has explained that ByteDance Ltd. uses the
dat
a it collects to train the TikTok recommendation algo-
rithm, which is developed and maintained in China. Accord-
ing to the Government, ByteDance Ltd. has previously de-
clined to agree to stop collecting U. S. user data or sending
that data to China to train the algorithm. See 2 App. 705–
706. The Government has further noted the diffculties as-
sociated with monitoring data sharing between ByteDance
Ltd. and TikTok Inc. See id., at 692–697. Under these
circumstances, we fnd the Government's data collection jus-
tifcation suffcient to sustain the challenged provisions.
***
There is no doubt that, for more than 170 million Ameri-
cans, TikTok offers a distinctive and expansive outlet for ex-
pression, means of engagement, and source of community.
But Congress has determined that divestiture is necessary
to address its well-supported national security concerns re-
garding TikTok's data collection practices and relationship
with a foreign adversary. For the foregoing reasons, we
conclude that the challenged provisions do not violate peti-
tioners' First Amendment rights.
The judgment of the United States Court of Appeals for
the District of Columbia Circuit is affrmed.
It is so ordered.
Justice Sotomayor, concurring in part and concurring in
the judgment.
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 im-
plicates the First Amendment because our precedent leaves
no doubt that it does.
TikTok engages in expressive activity by “compiling and
curating ” material on its platform. Moody v. NetChoice,
LLC, 603 U. S. 707, 731 (2024). Laws that “impose a dispro-
portionate burden” upon those engaged in expressive activ-
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Gorsuch, J., concurring in judgment
ity are subject to heightened scrutiny under the First
Amendment.
Arcara v. Cloud Books, Inc., 478 U. S. 697,
704 (1986); see Minneapolis Star & Tribune Co. v. Minnesota
Comm'r of Revenue, 460 U. S. 575, 581–585 (1983). The
challenged Act plainly imposes such a burden: It bars any
entity from distr ibuting TikTok 's speech i n the United
States, unless TikTok undergoes a qualifed divestiture.
The Act, moreover, effectively prohibits TikTok from collabo-
rating with certain entities regarding its “content recom-
mendation algorithm” even following a qualifed divestiture.
§ 2(g)(6)(B), 138 Stat. 959. And the Act implicates content
creators' “right to associate” with their preferred publisher
“for the purpose of speaking.” Rumsfeld v. Forum for Aca-
demic and Institutional Rights, Inc., 547 U. S. 47, 68 (2006).
That, too, calls for First Amendment scrutiny.
As to the remainder of the per curiam opinion, I agree
that the Ac t surv ives petiti oners' First Amendment
challenge.
Justice Gorsuch, concurring in the judgment.
We have had a fortnight to resolve, fnally and on the mer-
its, a major First Amendment dispute affecting more than
170 million Americans. Briefng fnished on January 3, ar-
gument took place on January 10, and our opinions issue on
January 17, 2025. Given those conditions, I can sketch out
only a few, and admittedly tentative, observations.
First, the Court rightly refrains from endorsing the gov-
ernment's asserted interest in preventing “the covert manip-
ulation of content” as a justifcation for the law before us.
Brief for Respondent 37. One man's “covert content manip-
ulation” is another's “editorial discretion.” Journalists, pub-
lishers, and speakers of all kinds routinely make less-than-
transparent judgments about what stories to tell and how to
tell them. Without question, the First Amendment has
much to say about the right to make those choices. It makes
no difference that Americans (like TikTok Inc. and many of
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Gorsuch, J., concurring in judgment
its users) may wish to make decisions about what they say
i
n concert with a foreign adversary. “Those who won our
independence” knew the vital importance of the “freedom to
think as you will and to speak as you think,” as well as the
dangers that come with repressing the free fow of ideas.
Whitney v. California, 274 U. S. 357, 375 (1927) (Brandeis,
J., concurring). They knew, too, that except in the most ex-
treme situations, “the ftting remedy for evil counsels is good
ones.” Ibid. Too often in recent years, the government
has sought to censor disfavored speech online, as if the in-
ternet were somehow exempt from the full sweep of the
First Amendment. See, e. g., Murthy v. Missouri, 603 U. S.
43, 76–78 (2024) (Alito, J., dissenting). But even as times
and technologies change, “the principle of the right to free
speech is always the same.” Abrams v. United States, 250
U. S. 616, 628 (1919) (Holmes, J., dissenting).
Second, I am pleased that the Court declines to consider
the classifed evidence the government has submitted to us
but shielded from petitioners and their counsel. Ante, at 74,
n. 3. Efforts to inject secret evidence into judicial proceed-
ings present obvious constitutional concerns. Usually, “the
evidence used to prove the Government's case must be dis-
closed to the individual so that he has an opportunity to show
that it is untrue.” Greene v. McElroy, 360 U. S. 474, 496
(1959). Maybe there is a way to handle classifed evidence
that would afford a similar opportunity in cases like these.
Maybe, too, Congress or even the Standing Committee on
Rules of Practice and Procedure would proft from consider-
ing the question. Cf. United States v. Zubaydah, 595 U. S.
195, 245 (2022) (Gorsuch, J., dissenting). But as the Court
recognizes, we have no business considering the govern-
ment's secret evidence here.
Third, I harbor serious reservations about whether the
law before us is “content neutral” and thus escapes “strict
scrutiny.” See ante, at 70–73; Brief for Petitioners in No. 24–
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656, pp. 25–31; Brief for Petitioners in No. 24–657, pp. 24–26;
Reply
Brief in No. 24–656, pp. 10–12; Reply Brief in No. 24–
657, pp. 8–11. More than that, while I do not doubt that
the various “tiers of scrutiny” discussed in our case law—
“rational basis, strict scrutiny, something(s) in between”—
can help focus our analysis, I worry that litigation over them
can sometimes take on a life of its own and do more to ob-
scure than to clarify the ultimate constitutional questions.
Riddle v. Hickenlooper, 742 F. 3d 922, 932 (CA10 2014) (Gor-
such, J., concurring).
Fourth, whatever the appropriate tier of scrutiny, I am
persuaded that the law before us seeks to serve a compelling
interest: preventing a foreign country, designated by Con-
gress and the President as an adversary of our Nation, from
harvesting vast troves of personal information about tens of
millions of Americans. The record before us establishes
that TikTok mines data both from TikTok users and about
millions of others who do not consent to share their informa-
tion. 2 App. 659. According to the Federal Bureau of In-
vestigation, TikTok can access “any data” stored in a con-
senting user's “contact list”—including names, photos, and
other personal information about unconsenting third parties.
Ibid. (emphasis added). And because the record shows that
the People's Republic of China (PRC) can require TikTok's
parent company “to cooperate with [its] efforts to obtain per-
sonal data,” there is little to stop all that information from
ending up in the hands of a designated foreign adversary.
Id., at 696; see id., at 673–676; ante, at 63–64. The PRC
may then use that information to “build dossiers . . . for
blackmail,” “conduct corporate espionage,” or advance intel-
ligence operations. 1 App. 215; see 2 App. 659. To be sure,
assessing exactly what a foreign adversary may do in the
future implicates “delicate” and “complex” judgments about
foreign affairs and requires “large elements of prophecy.”
Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp.,
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84 TIKTOK
INC. v. GARLAND
Gorsuch, J., concurring in judgment
333 U. S. 103, 111 (1948) (Jackson, J., for the Court). But
the
record the government has amassed in these cases after
years of study supplies compelling reason for concern.
Finally, the law before us also appears appropriately tai-
lored to the problem it seeks to address. Without doubt, the
remedy Congress and the President chose here is dramatic.
The law may require TikTok's parent company to divest or
(effectively) shutter its U. S. operations. But before seeking
to impose that remedy, the coordinate branches spent years
in negotiations with TikTok exploring alternatives and ulti-
mately found them wanting. Ante, at 65. And from what
I can glean from the record, that judgment was well founded.
Consider some of the alternatives. Start with our usual
and preferred remedy under the First Amendment: more
speech. Supra, at 82. However helpful that might be, the
record shows that warning users of the risks associated with
giving their data to a foreign-adversary-controlled applica-
tion would do nothing to protect nonusers' data. 2 App.
659–660; supra, at 83. Forbidding TikTok's domestic opera-
tions from sending sensitive data abroad might seem another
option. But even if Congress were to impose serious crimi-
nal penalties on domestic TikTok employees who violate a
data-sharing ban, the record suggests that would do little to
deter the PRC from exploiting TikTok to steal Americans'
data. See 1 App. 214 (noting threats from “malicious code,
backdoor vulnerabilities, surreptitious surveillance, and
other problematic activities tied to source code development”
in the PRC); 2 App. 702 (“[A]gents of the PRC would not
fear monetary or criminal penalties in the United States”).
The record also indicates that the “size” and “complexity” of
TikTok's “underlying software” may make it impossible for
law enforcement to detect violations. Id., at 688–689; see
also id., at 662. Even setting all these challenges aside, any
new compliance regime could raise separate constitutional
concerns—for instance, by requiring the government to sur-
veil Americans' data to ensure that it isn't illicitly fowing
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Cite
as: 604 U. S. 56 (2025)
85
Gorsuch, J., concurring in judgment
overseas. Id., at 687 (suggesting that effective enforcement
of
a data-export ban might involve “direct U. S. government
monitoring ” of the “fow of U. S. user data”).
Whether this law will succeed in achieving its ends, I do
not know. A determined foreign adversary may just seek
to replace one lost surveillance application with another. As
time passes and threats evolve, less dramatic and more effec-
tive solutions may emerge. Even what might happen next
to TikTok remains unclear. See Tr. of Oral Arg. 146–147.
But the question we face today is not the law's wisdom, only
its constitutionality. Given just a handful of days after oral
argument to issue an opinion, I cannot profess the kind of
certainty I would like to have about the arguments and rec-
ord before us. All I can say is that, at this time and under
these constraints, the problem appears real and the response
to it not unconstitutional. As persuaded as I am of the wis-
dom of Justice Brandeis in Whitney and Justice Holmes in
Abrams, their cases are not ours. See supra, at 82. Speak-
ing with and in favor of a foreign adversary is one thing.
Allowing a foreign adversary to spy on Americans is another.

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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 56, line 2 from bottom: “the” before “petitioners” is deleted
p. 57, line 14 from bottom: “this case” is changed to “these cases”
p. 67, line 4: “the” before “petitioners” is deleted