ITIF has joined an amicus brief regarding TikTok, Inc. v. Garland.

Introduction and Summary of Argument

Without this Court’s prompt intervention, the government will soon ban Americans from accessing a social media application, TikTok, that millions use every day to communicate, learn about the world, and express themselves. Such a ban is unprecedented in our country and, if it goes into effect, will cause a far-reaching disruption in Americans’ ability to engage with the content and audiences of their choice online. Because the government seeks to impose an extraordinary restriction on speech, it must overcome the First Amendment’s most demanding requirements.

Although the D.C. Circuit ostensibly applied strict scrutiny in upholding the ban, it subjected the government’s assertions to little genuine scrutiny in the end. In failing to closely examine the government’s claims, the court of appeals ran afoul of this Court’s rulings. As the court acknowledged, the government has not presented credible evidence of ongoing or imminent harm caused by TikTok. App. 47a.3 And as the court’s opinion makes clear, the government has not demonstrated that less-restrictive alternatives are in fact inadequate to mitigate its stated concerns. App. 50a–51a. Properly applying the governing First Amendment standards, the government has failed— at least on the current record—to present sufficient evidence to justify forcing so many Americans off a platform uniquely suited to how they want to speak and share. Amici write to underscore three points.

• First, the Act implicates core First Amendment protected speech and, in the absence of an injunction, will violate the expressive rights of millions of Americans. The D.C. Circuit’s opinion barely acknowledged the substantial First Amendment interests that Americans have in continuing to use TikTok to speak and engage with others around the world, including the audiences and following many have built over years. Implicit in the ruling is the assumption that TikTok’s millions of American users could simply move to a different platform with little consequence for their First Amendment rights. That is mistaken.
• Second, the Act is a prior restraint on TikTok and its users—an especially disfavored means of restricting First Amendment rights, and one that calls for “the most exacting” judicial scrutiny. Smith v. Daily Mail Pub. Co., 443 U.S. 102 (1979). This is because the law’s purpose and effect is to ban future speech based on the prospect of future harms, as the D.C. Circuit acknowledged. The statute will shut down the app, blocking millions of users, as well as TikTok itself, from engaging in protected expression “in advance of the time that [their] communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993). In addition, even if the Act is not viewed as a prior restraint, it discriminates based on content and viewpoint. The Act is content-based on its face and, as the D.C. Circuit recognized, also in practice. But Congress’s intent to discriminate against disfavored viewpoints is far clearer and more pervasive than the court of appeals acknowledged. Given that record, there can be no question that strict scrutiny applies.
• Third, although the D.C. Circuit claimed to apply strict scrutiny, its analysis did not hold the government to the heavy burden this Court has consistently required. The court of appeals repeatedly accepted the government’s say-so where the First Amendment requires proof, and it assumed that Congress weighed less restrictive alternatives even in the absence of evidence that it actually did so. The court at times cited “national security” as a justification for deferring to the government’s hypothetical claims or mere assertions, but the government’s burden to justify an infringement on First Amendment rights is the same in the national security context as in any other. See, e.g., N.Y. Times Co. v. United States (“Pentagon Papers”), 403 U.S. 713, 714 (1971); id. at 730 (Stewart, J., concurring). In fact, the judiciary has an especially critical role to play in ensuring that the government meets its burden when the government invokes national security.

Amici urge the Court to see the Act for what it is: a sweeping ban on free expression that triggers and fails the most exacting scrutiny under the First Amendment.

Read the full brief.