USCA Case #24-1113 Document #2088317 Filed: 12/06/2024 Page 1 of 92

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2024 Decided December 6, 2024

No. 24-1113

TIKTOK INC. AND BYTEDANCE LTD.,

PETITIONERS

v.

MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,
RESPONDENT

Consolidated with 24-1130, 24-1183

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,
USCA Case #24-1113 Document #2088317 Filed: 12/06/2024 Page 2 of 92

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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.
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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.
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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, Raúl 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
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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 for the Court filed by Senior Circuit Judge

GINSBURG.

Opinion concurring in part and concurring in the judgment

filed by Chief Judge SRINIVASAN.
USCA Case #24-1113 Document #2088317 Filed: 12/06/2024 Page 6 of 92

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
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GINSBURG, Senior Circuit Judge: 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 mainte-
nance 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 stand-
ing to challenge, that is the provisions concerning TikTok and
its related entities, survive constitutional scrutiny. We therefore
deny the petitions.

1
A foreign adversary controlled application is defined in § 2(g)(3)
as “a website, desktop application, mobile application, or augmented
or immersive technology application that is operated, directly or indi-
rectly (including through a parent company, subsidiary, or affiliate),
by”:
(A) any of — (i) ByteDance, Ltd.; (ii) TikTok; (iii) a
subsidiary of or a successor to an entity identified in
clause (i) or (ii) that is controlled by a foreign adver-
sary; or (iv) an entity owned or controlled, directly or
indirectly, by an entity identified in clause (i), (ii), or
(iii); or
(B) a covered company that — (i) is controlled by a foreign
adversary; and (ii) that is determined by the President
to present a significant threat to the national security of
the United States following [certain procedures].
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I. Background

This court has original and exclusive jurisdiction over this

case pursuant to Section 3 of the Act. The parties have submit-
ted several evidentiary appendices in support of their positions,
including sworn declarations from various experts. In review-
ing this material, we consider whether there is a genuine dis-
pute 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, voice-
overs, 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 deci-
sions, 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
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Chinese engineers, “continually develop[s]” the recommenda-
tion engine and platform source code. As we explain in more
detail below, the recommendation engine for the version of the
platform that operates in the United States is deployed to a
cloud environment run by Oracle Corporation.

Content moderation decisions involve a combination of

machine and human actions. According to TikTok every video
on the TikTok platform goes through “automated moderation”
and if deemed potentially problematic is sent to a human
moderator for review. TikTok’s Head of Operations and Trust
& Safety approves the “community guidelines” that drive
content moderation on the platform.

Video promotion (also called “heating”) and demotion

(also called “filtering”) decisions are used to advance TikTok’s
commercial or other goals. These decisions involve promoting
or limiting specific videos on the platform. According to
TikTok, each video that is promoted is first reviewed by a
human. Review teams are regionalized so that videos promoted
in the United States are reviewed by U.S.-based reviewers.
With respect to filtering, the platform follows “a set of rules to
filter out and disperse certain content.”

B. The Petitioners

Three groups of petitioners challenge the Act on constitu-

tional grounds: ByteDance Ltd. and TikTok, Inc.; Based
Politics, Inc.; and the self-styled Creators, eight individuals
who use the TikTok platform. We refer to the latter two groups
collectively as the User Petitioners. Where the corporate struc-
ture of ByteDance affects our analysis, we identify the relevant
corporate entity by name. Otherwise, we refer generally to the
constellation of ByteDance entities as TikTok. Because PRC
control of the TikTok platform is central to this case, we
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provide the following overview of the relevant corporate
relationships.

ByteDance Ltd., the ultimate parent company of TikTok,

is incorporated in the Cayman Islands. The Government
characterizes ByteDance as headquartered in China and
ByteDance acknowledges that it has significant operations
there.2 ByteDance provides more than a dozen products
through various operating subsidiaries, including Douyin,
which is the counterpart to TikTok in China. The company was
founded by Yiming Zhang, a Chinese national. Zhang retains
21 percent ownership of the company.

TikTok Ltd. is a wholly owned subsidiary of ByteDance

and is also incorporated abroad. TikTok Ltd. operates the
TikTok platform globally, except in China. The Government
refers to TikTok entities that operate the platform outside the
United States as “TikTok Global” and its U.S. operations as
“TikTok US.”

TikTok Ltd. wholly owns TikTok LLC, which in turn

wholly owns TikTok, Inc., a California corporation that pro-
vides the TikTok platform to users in the United States.
According to a TikTok declarant, TikTok’s “U.S. application
and global application are highly integrated,” and the “global
TikTok application itself is highly integrated with ByteDance.”
Because the TikTok “platform and the content [are] global, the
teams working on the platform, and the tools they use, neces-
sarily must be, as well.” According to TikTok, one of
ByteDance’s roles is “development of portions of the computer
code that runs the TikTok platform.” In the Government’s
view, TikTok “would try to comply if the PRC asked for
specific actions to be taken to manipulate content for

2
We use “China” when referring to the country and PRC when
referencing its government.
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censorship, propaganda, or other malign purposes on TikTok
US.”

TikTok U.S. Data Security Inc. (TTUSDS) is a wholly

owned subsidiary of TikTok, Inc., incorporated in Delaware.
TikTok created TTUSDS to limit ByteDance’s access to the
data of TikTok’s users in the United States and to monitor the
security of the platform. TikTok represents that TTUSDS
employees are separated from other TikTok employees, and
that it partnered with Oracle to migrate the U.S. version of the
TikTok platform into a cloud environment run by Oracle.
TikTok also represents that TTUSDS and Oracle review
updates to the platform made by ByteDance’s non-TTUSDS
employees, and that Oracle has full access to TikTok’s source
code. According to TikTok, TTUSDS is also responsible for
deploying the recommendation engine in the United States, and
TTUSDS signs off on any decision to promote or demote
content in the United States.

C. National Security Concerns

As relevant here, the Executive3 first became concerned

about the PRC’s influence over TikTok in 2018 when
ByteDance relaunched the platform in the United States
following its acquisition of Musical.ly. In 2019, upon finding
that “foreign adversaries” were “exploiting vulnerabilities in
information and communications technology and services,”
President Trump declared a national emergency. Securing the
Information and Communications Technology and Services
Supply Chain, Exec. Order No. 13873, 84 Fed. Reg. 22689,
22689 (May 15, 2019). Later that year, the Committee on
Foreign Investment in the United States (CFIUS), which
comprises the heads of several Executive Branch agencies, sent

3
The Executive refers variously to the President, Executive Branch
agencies, including the intelligence agencies, and officials thereof.
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a questionnaire to ByteDance about national security concerns
related to ByteDance’s acquisition of Musical.ly. Thus began a
lengthy investigatory process that culminated on August 1,
2020 with CFIUS concluding that TikTok could not suffi-
ciently mitigate its national security concerns and referring the
transaction to the President. The President, acting on that
referral, ordered ByteDance to divest any “assets or property”
that “enable or support ByteDance’s operation of the TikTok
application in the United States.” Regarding the Acquisition of
Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297
(Aug. 14, 2020).

President Trump separately invoked his powers under the

International Emergency Economic Powers Act (IEEPA) and
the National Emergencies Act to address “the threat posed by
one mobile application in particular, TikTok.” Addressing the
Threat Posed by TikTok, Exec. Order No. 13942, 85 Fed. Reg.
48637, 48637 (Aug. 6, 2020). President Trump prohibited
certain “transactions” with ByteDance or its subsidiaries, id. at
48638, and the Secretary of Commerce later published a list of
prohibited transactions, 85 Fed. Reg. 60061 (Sept. 24, 2020).
Litigation ensued, and two courts enjoined the President’s
prohibitions under the IEEPA as exceeding his authority under
that law. TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 102
(D.D.C. 2020); Maryland v. Trump, 498 F. Supp. 3d 624, 638,
641–45 (E.D. Pa. 2020).

In 2021, President Biden withdrew President Trump’s

IEEPA executive order and issued a new one. In the new order,
the President identified the PRC as “a foreign adversary” that
“continues to threaten the national security, foreign policy, and
economy of the United States” through its control of “software
applications” used in the United States. Protecting Americans’
Sensitive Data From Foreign Adversaries, Exec. Order No.
14034, 86 Fed. Reg. 31423, 31423 (June 9, 2021). President
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Biden elaborated that “software applications” can provide
foreign adversaries with “vast swaths of information from
users,” and that the PRC’s “access to large repositories” of such
data “presents a significant risk.” Id. President Biden directed
several executive agencies to provide risk mitigation options,
and he asked for recommended “executive and legislative
actions” to counter risks “associated with connected software
applications that are designed, developed, manufactured, or
supplied by persons owned or controlled by, or subject to the
jurisdiction or direction of, a foreign adversary.” Id. The
following year, President Biden signed into law a bill prohibit-
ing the use of TikTok on government devices. See generally
Pub. L. No. 117-328, div. R, 136 Stat. 5258 (2022).

Litigation regarding President Trump’s divestiture order

pursuant to CFIUS’s referral began when TikTok filed suit in
this court challenging the constitutionality of the order. See Pet.
for Review, TikTok Inc. v. CFIUS, No. 20-1444 (2020). At the
request of the parties, in February 2021 this court placed that
case in abeyance while the new administration considered the
matter and the parties negotiated over an alternative remedy
that would sufficiently address the Executive’s national secu-
rity concerns.

During 2021 and 2022, TikTok submitted multiple drafts

of its proposed National Security Agreement (NSA) and
Executive Branch officials held numerous meetings to consider
TikTok’s submissions. According to TikTok, there were “at
least” 14 meetings or calls, nine written presentations by
TikTok, and 15 email exchanges in which “CFIUS posed ques-
tions related to [TikTok’s] operations and the NSA terms.” A
TikTok declarant describes the negotiations as “protracted,
detailed, and productive,” and the Government similarly
characterizes them as “significant” and “intensive.” Also as
part of the process, “Executive Branch negotiators engaged in
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extensive, in-depth discussions with Oracle, the proposed
Trusted Technology Provider, whose responsibility under the
proposed mitigation structure included storing data in the
United States, performing source code review, and ensuring
safety of the operation of the TikTok platform in the United
States.”

In August 2022, TikTok submitted its last proposal.

Although the parties dispute certain details about how to inter-
pret specific provisions, the broad contours of TikTok’s pro-
posed NSA are undisputed. Three aspects of the proposal bear
emphasis.

First, the proposal purported to give TikTok operational

independence from ByteDance by creating a new entity insu-
lated from the influence of ByteDance, namely TTUSDS. The
key management personnel of TTUSDS were to be subject to
approval by the Government.

Second, the proposed NSA would create three tiers of data

to limit the ability of ByteDance to access the data of TikTok’s
users in the United States. Protected Data generally would
encompass personal information about TikTok’s U.S. users —
such as their usernames, passwords, user-created content, and
any other personally identifiable information — unless such
data were classified as Excepted Data or Public Data. Sharing
of Protected Data with ByteDance would be prohibited except
pursuant to limited-access protocols. Excepted Data would
include data that platform users authorized to be shared with
TikTok or its affiliates; certain defined data fields; and
encrypted usernames, phone numbers, email addresses, etc., for
routing to the United States. Public Data would include data
generally accessible to platform users, as well as any content a
user decides to make public. Under the proposed NSA, TikTok
could send Excepted Data and Public Data to ByteDance.
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Third, the proposal provided for a “trusted third party,”
Oracle, to inspect the source code, including TikTok’s
recommendation engine. It also gave the Government author-
ity, under certain circumstances, to instruct TikTok to shut
down the platform in the United States, which TikTok calls a
“kill switch.”

The Executive determined the proposed NSA was insuffi-

cient for several reasons. Most fundamentally, certain data of
U.S. users would still flow to China and ByteDance would still
be able to exert control over TikTok’s operations in the United
States. The Executive also did not trust that ByteDance and
TTUSDS would comply in good faith with the NSA. Nor did
the Executive have “sufficient visibility [into] and resources to
monitor” compliance. In the Executive’s view, divestment was
the only solution that would adequately address its national
security concerns. TikTok nevertheless voluntarily imple-
mented some of its proposed mitigation measures.

D. The Act

In the months leading to passage of the Act, the Congress

conducted a series of classified briefings and hearings regard-
ing the Government’s national security concerns. The Congress
then debated and passed the Act as one part of a broader
appropriations bill, which also included the Protecting
Americans’ Data from Foreign Adversaries Act of 2024, Pub.
L. No. 118-50, div. I (2024), hereinafter the Data Broker Law.
The Act and the Data Broker Law include nearly identical
definitions of “foreign adversary country” and “controlled by a
foreign adversary.” Their aims also overlap. Section 2(a) of the
Data Broker Law prohibits third party data brokers from
transferring “personally identifiable sensitive data of a United
States individual” to a foreign adversary country or an entity
“controlled by a foreign adversary.” The Act complements that
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provision by limiting the ability of foreign adversaries to
collect data directly through adversary controlled applications.

The Act itself is narrowly constructed to counter foreign

adversary control through divestiture. Three aspects of the Act
are particularly relevant to this case: (1) the definition of for-
eign adversary controlled applications, (2) prohibitions in the
Act, and (3) the divestiture option.

1. Foreign adversary controlled applications

The Act defines a Foreign Adversary Controlled

Application as “a website, desktop application, mobile applica-
tion, or augmented or immersive technology application that is
operated, directly or indirectly” by either of two distinct
groups. § 2(g)(3). The first group consists of the ByteDance
constellation of entities, including TikTok, which is identified
by name. § 2(g)(3)(A). The second group consists of every cov-
ered company4 that is determined by the President to present a

4
The term “covered company” is defined as “an entity that operates
. . . a website, desktop application, mobile application, or augmented
or immersive technology application that”:
(i) permits a user to create an account or profile to gener-
ate, share, and view text, images, videos, real-time
communications, or similar content;
(ii) has more than 1,000,000 monthly active users with
respect to at least 2 of the 3 months preceding the date
on which a relevant determination of the President is
made pursuant to paragraph (3)(B);
(iii) enables 1 or more users to generate or distribute content
that can be viewed by other users of the website, desk-
top application, mobile application, or augmented or
immersive technology application; and
(iv) enables 1 or more users to view content generated by
other users of the website, desktop application, mobile
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significant threat to national security. Specifically, it includes
any “covered company” that:
(i) is controlled by a foreign adversary;5 and
(ii) that is determined by the President to present a
significant threat to the national security of the
United States following the issuance of — (I) a
public notice proposing such determination; and
(II) a public report to Congress, submitted not less
than 30 days before such determination, describing
the specific national security concern involved and
containing a classified annex and a description of

application, or augmented or immersive technology

application.
§ 2(g)(2)(A). The term excludes, however, entities that operate an
“application whose primary purpose is to allow users to post product
reviews, business reviews, or travel information and reviews.”
§ 2(g)(2)(B).
5
The term “controlled by a foreign adversary” means a “covered
company or other entity” that is:
(A) a foreign person that is domiciled in, is headquartered
in, has its principal place of business in, or is organized
under the laws of a foreign adversary country;
(B) an entity with respect to which a foreign person or
combination of foreign persons described in subpara-
graph (A) directly or indirectly own at least a 20 percent
stake; or
(C) a person subject to the direction or control of a foreign
person or entity described in subparagraph (A) or (B).
§ 2(g)(1). The definition of “foreign adversary country” encom-
passes China, Russia, Iran, and North Korea. § 2(g)(2) (defining the
term by reference to 10 U.S.C. § 4872(d)(2)).
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what assets would need to be divested to execute a
qualified divestiture.
§ 2(g)(3)(B).

2. Prohibitions

The Act contains prohibitions, § 2(a), and a “data and

information portability” requirement, § 2(b). The prohibitions
do not directly proscribe conduct by an entity that owns a for-
eign adversary controlled application. Instead, they bar others
from providing critical support in the United States for such an
application. Specifically, the Act makes it “unlawful for an
entity to distribute, maintain, or update” a foreign adversary
controlled application in any of two ways:
(A) Providing services to distribute, maintain, or
update such foreign adversary controlled applica-
tion (including any source code of such applica-
tion) by means of a marketplace (including an
online mobile application store) through which
users within the land or maritime borders of the
United States may access, maintain, or update such
application.
(B) Providing internet hosting services to enable the
distribution, maintenance, or updating of such for-
eign adversary controlled application for users
within the land or maritime borders of the United
States.
§ 2(a)(1).

With respect to TikTok, the prohibitions take effect 270

days after the Act was passed into law, that is, on January 19,
2025. § 2(a)(2)(A). With respect to applications subject to the
generally applicable provisions, the prohibitions take effect
270 days after “the relevant determination of the President.”
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§ 2(a)(2)(B). In both situations, the President can grant a one-
time, 90-day extension under specific circumstances not rele-
vant here. § 2(a)(3).

Failure to comply with the Act can result in substantial

monetary penalties. § 2(d)(1). To enforce the Act the Attorney
General, following an investigation, can file suit in an appropri-
ate district court. § 2(d)(2).

3. The divestiture exemption

Section 2(c) of the Act provides an exemption “for quali-

fied divestitures.” That is, the prohibitions do not apply if “a
qualified divestiture is executed before the date on which a
prohibition under subsection (a) would begin to apply.”
§ 2(c)(1)(A). If a qualified divestiture is executed after that
date, then the prohibitions “shall cease to apply.” § 2(c)(1)(B).
A “qualified divestiture” is defined as a transaction that:
(A) the President determines, through an interagency
process, would result in the relevant foreign
adversary controlled application no longer being
controlled by a foreign adversary; and
(B) the President determines, through an interagency
process, precludes the establishment or mainte-
nance of any operational relationship between the
United States operations of the relevant foreign
adversary controlled application and any formerly
affiliated entities that are controlled by a foreign
adversary, including any cooperation with respect
to the operation of a content recommendation algo-
rithm or an agreement with respect to data sharing.
§ 2(g)(6).
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20
E. Procedural History

This case concerns three petitions challenging the Act that

this court consolidated for review. On May 17, 2024 the parties
jointly asked this Court to expedite the case. The parties
advised that they intended to append evidentiary materials to
their briefs. The Government noted that it was evaluating the
need to file an ex parte evidentiary submission given the
classified material implicated by the case. The petitioners
reserved the right to object to any such submission.

The parties ultimately submitted evidence with their

briefs. TikTok’s submission included several expert declara-
tions as well as a declaration from its Head of Operations and
Trust & Safety. The User Petitioners filed declarations
underscoring the diverse ways in which they use the TikTok
platform. The Government filed declarations explaining its
national security concerns and why it found TikTok’s proposed
NSA insufficient to meet those concerns. TikTok filed rebuttal
declarations with its reply brief.

Portions of the Government’s brief and evidentiary

submission were redacted because they contain classified
information. The Government filed a motion requesting leave
to file unredacted versions of its brief and supporting evidence
under seal and ex parte, which documents the Government later
lodged with this court. The petitioners opposed the
Government’s motion and alternatively moved this court to
appoint a special master and issue a temporary injunction in
order to mitigate prejudice arising from the Government’s
classified filings.

II. Analysis

The petitioners seek a declaratory judgment that the Act

violates the Constitution and an order enjoining the Attorney
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21
General from enforcing it. Because the petitioners are bringing
a pre-enforcement challenge to the Act, we must determine the
extent to which this court can consider their claims consistent
with the standing aspect of the “case or controversy” require-
ment of Article III of the Constitution. We conclude that
TikTok has standing to challenge those portions of the Act that
directly affect the activities of ByteDance and its affiliates. We
further conclude that TikTok’s challenge to those portions of
the Act is ripe.

On the merits, we reject each of the petitioners’ constitu-

tional claims. As we shall explain, the parts of the Act that are
properly before this court do not contravene the First
Amendment to the Constitution of the United States, nor do
they violate the Fifth Amendment guarantee of equal protection
of the laws; constitute an unlawful bill of attainder, in violation
of Article I, § 9, clause 3; or work an uncompensated taking of
private property in violation of the Fifth Amendment.

A. Standing and Ripeness

We have an independent duty to assure ourselves that the

petitioners and their claims satisfy the requirements of Article
III. Exelon Corp. v. FERC, 911 F.3d 1236, 1240 (D.C. Cir.
2018). TikTok’s claims all relate to how the Act applies to the
TikTok platform; it has not, for example, meaningfully devel-
oped claims regarding other services provided by other
ByteDance subsidiaries. Nor does it claim the generally
applicable portions of the Act are unconstitutional as applied to
other companies. TikTok instead seeks to enjoin the enforce-
ment of the prohibitions on hosting the TikTok platform, which
TikTok contends are unconstitutional irrespective of whether
they are imposed based upon the generally applicable frame-
work or upon the TikTok-specific provisions of the Act. At the
same time, the User Petitioners claim the Act in its entirety is
USCA Case #24-1113 Document #2088317 Filed: 12/06/2024 Page 22 of 92

22
“facially invalid under the First Amendment,” which need not
detain us.6 Creator Reply Br. 30–31.

“To establish standing for a pre-enforcement challenge, a

plaintiff must demonstrate first an intention to engage in a
course of conduct arguably affected with a constitutional inter-
est, but proscribed by a statute and, second, that there exists a
credible threat of prosecution thereunder.” Muthana v.
Pompeo, 985 F.3d 893, 911 (D.C. Cir. 2021) (cleaned up). This
inquiry is slightly more refined in cases that involve the poten-
tial future regulation of third parties. To establish standing in
such circumstances, a plaintiff must demonstrate it is “likely
that the government’s regulation . . . of someone else will cause
a concrete and particularized injury in fact to the unregulated
plaintiff.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 385
n.2 (2024).

Ripeness is “related” but focuses “on the timing of the

action rather than on the parties seeking to bring it.” Navegar,
Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997).
Courts consider (1) hardship to the parties and (2) fitness for
judicial resolution when assessing ripeness. Id. The purposes
of the ripeness doctrine are to avoid abstract argument, promote
judicial economy, and ensure an adequate record. Id.

TikTok and its claims challenging enforcement of the

prohibitions of the Act based upon the TikTok-specific provi-
sions clearly satisfy the requirements respectively for standing
and ripeness. The prohibitions based upon those provisions

6
The User Petitioners have not demonstrated that “a substantial
number of” the Act’s “applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.” Moody v.
NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024) (cleaned up). Indeed,
the core of the Act — its application as to TikTok — is valid for the
reasons we explain in this opinion.
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23
take effect by operation of law on January 19, 2025. After that
date, third parties that make the TikTok platform available in
the United States would run a significant risk of incurring
monetary penalties under § 2(d)(1). Even if the Act went unen-
forced, the risk of penalties alone could cause third parties to
suspend support for the TikTok platform, such as by removing
it from online marketplaces, and an injunction would prevent
that harm. TikTok therefore has Article III standing to pursue
its claims.

The ripeness inquiry is likewise straightforward. TikTok

risks severe hardship from delayed review, and we have an ade-
quate record on which to resolve the company’s challenges to
the constitutionality of the TikTok-specific provisions of the
Act.

To the extent TikTok seeks to enjoin future enforcement

of the prohibitions under the generally applicable track, TikTok
does not have standing. Nor if it did would such a request be
ripe for judicial review. Recall that applying the prohibitions
under the generally applicable framework requires certain
procedural steps and a presidential determination pursuant to
§ 2(g)(3)(B). Those steps include public notice, a description
of the national security concern, a classified annex, and a
description of assets to be divested. § 2(g)(3)(B)(ii). The
President has not invoked those procedures with respect to
TikTok (or any other company), and it would be self-evidently
premature for the court even to consider a request for an injunc-
tion against the President ever doing so. We consequently limit
our analysis to the constitutionality of the Act as applied to the
TikTok-specific provisions that will go into effect next month.7

7
Having concluded that TikTok has standing, we need not separately
analyze whether the User Petitioners have standing to raise the same
claims. See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C.
Cir. 2017) (explaining that “if constitutional standing can be shown
USCA Case #24-1113 Document #2088317 Filed: 12/06/2024 Page 24 of 92

24
B. The First Amendment

This case requires that we apply longstanding First

Amendment principles to somewhat novel facts: A popular
social-media platform, subject to the control of a foreign adver-
sary nation, that a statute requires be divested because of
national security risks. The issue is made more complex by the
web of subsidiaries wholly owned by ByteDance that lie
behind the TikTok platform. See Moody v. NetChoice, LLC,
144 S. Ct. 2383, 2410 (2024) (Barrett, J., concurring)
(explaining how foreign ownership and corporate structure can
complicate the First Amendment analysis).

We conclude the Act implicates the First Amendment and

is subject to heightened scrutiny. Whether strict or intermediate
scrutiny applies is a closer question. The relevant portions of
the Act are facially content neutral, but the Government argua-
bly based its content-manipulation justification for the Act
upon the content on the platform. We think it only prudent,
therefore, to assume without deciding that the higher standard
applies.

1. Heightened scrutiny applies.

As in most First Amendment cases, the parties spend much

of their time debating the appropriate standard of review. The
petitioners urge the court to apply strict scrutiny but contend
the Act fails intermediate scrutiny as well. The Government
suggests we apply only rational basis review, alternatively
advocates intermediate scrutiny, but maintains the Act satisfies
even strict scrutiny.

for at least one plaintiff, we need not consider the standing of the
other plaintiffs to raise that claim” (cleaned up)).
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25
Under intermediate scrutiny, the Act complies with the
First Amendment “if it advances important governmental inter-
ests unrelated to the suppression of free speech and does not
burden substantially more speech than necessary to further
those interests.” Turner Broad. Sys., Inc. v. FCC (Turner II),
520 U.S. 180, 189 (1997) (citing United States v. O’Brien, 391
U.S. 367, 377 (1968)). Under strict scrutiny, the Act violates
the First Amendment unless the Government can “prove that
the restriction furthers a compelling interest and is narrowly
tailored to achieve that interest.” Reed v. Town of Gilbert,
576 U.S. 155, 171 (2015) (cleaned up).

We think it clear that some level of heightened scrutiny is

required. The question whether intermediate or strict scrutiny
applies is difficult because the TikTok-specific provisions are
facially content neutral, yet the Government justifies the Act in
substantial part by reference to a foreign adversary’s ability to
manipulate content seen by Americans. No Supreme Court
case directly addresses whether such a justification renders a
law content based, thereby triggering strict scrutiny. There are
reasonable bases to conclude that intermediate scrutiny is
appropriate even under these circumstances. We need not,
however, definitively decide that question because we con-
clude the Act “passes muster even under the more demanding
standard.” FEC v. Int’l Funding Inst., 969 F.2d 1110, 1116
(D.C. Cir. 1992); see also In re Sealed Case, 77 F.4th 815,
829–30 (D.C. Cir. 2023) (assuming without deciding that strict
scrutiny applied).

At the outset, we reject the Government’s ambitious argu-

ment that this case is akin to Arcara v. Cloud Books, Inc.,
478 U.S. 697 (1986), and does not implicate the First
Amendment at all. That case concerned enforcement of “a
public health regulation of general application against” an adult
bookstore being “used for prostitution.” Id. at 707.
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26
Enforcement of a generally applicable law unrelated to
expressive activity does not call for any First Amendment
scrutiny. Id. By contrast, the First Amendment is implicated in
“cases involving governmental regulation of conduct that has
an expressive element,” or when a statute is directed at an
activity without an expressive component but imposes “a
disproportionate burden upon those engaged in protected First
Amendment activities.” Id. at 703–04; see also Alexander v.
United States, 509 U.S. 544, 557 (1993).

Here the Act imposes a disproportionate burden on

TikTok, an entity engaged in expressive activity. The
Government concedes, as it must after NetChoice, that the
curation of content on TikTok is a form of speech. 144 S. Ct. at
2401. Like the social media companies in that case, TikTok
delivers a “personalized collection” of content to users and
moderates this content pursuant to its community guidelines.
Id. at 2403–04. The Act plainly “single[s] out” that expressive
activity by indirectly subjecting TikTok — and so far, only
TikTok — to the divestiture requirement. Arcara, 478 U.S. at
707; cf. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 190
(2024) (explaining that “the First Amendment prohibits
government officials from wielding their power selectively to
punish or suppress speech, directly or (as alleged here) through
private intermediaries”). The prohibitions will make it unlaw-
ful for any entity to distribute, maintain, or update the TikTok
platform in the United States. § 2(a)(1). TikTok can avoid the
prohibitions by making a qualified divestiture, § 2(c), but to
qualify such divestiture must preclude “any cooperation with
respect to the operation of a content recommendation algorithm
or an agreement with respect to data sharing,” § 2(g)(6)(B). By
prohibiting third parties from hosting TikTok until the platform
executes this divestiture, the Act singles out TikTok, which
engages in expressive activity, for disfavored treatment.
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27
The Government suggests that because TikTok is wholly
owned by ByteDance, a foreign company, it has no First
Amendment rights. Cf. Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, Inc., 591 U.S. 430, 436 (2020) (explaining that
“foreign organizations operating abroad have no First
Amendment rights”). TikTok, Inc., however, is a domestic
entity operating domestically. See NetChoice, 144 S. Ct. at
2410 (Barrett, J., concurring) (identifying potential “complexi-
ties” for First Amendment analysis posed by the “corporate
structure and ownership of some platforms”). The Government
does not dispute facts suggesting at least some of the regulated
speech involves TikTok’s U.S. entities. See TikTok App. 811–
12, 817–18 (explaining that promoted videos are “reviewed by
a U.S.-based reviewer,” that an executive employed by a U.S.
entity approves the guidelines for content moderation, and that
the recommendation engine “is customized for TikTok’s vari-
ous global markets” and “subject to special vetting in the
United States”).

Nor does the Government argue we should “pierce the

corporate veil” or “invoke any other relevant exception” to the
fundamental principle of corporate separateness. Agency for
Int’l Dev., 591 U.S. at 435–36. We are sensitive to the risk of a
foreign adversary exploiting corporate form to take advantage
of legal protections in the United States. Indeed, the
Government presented evidence to suggest the PRC intention-
ally attempts to do just that. See, e.g., Gov’t App. 33–35
(describing the PRC’s hybrid commercial threat and its
exploitation of U.S. legal protections for hacking operations).
Under these circumstances, however, we conclude that the
TikTok-specific provisions of the Act trigger First Amendment
scrutiny.

The next question is whether intermediate or strict scrutiny

is appropriate, which turns on whether the Act is content
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28
neutral or content based. See Turner Broad. Sys., Inc. v. FCC
(Turner I), 512 U.S. 622, 642 (1994) (explaining that “regula-
tions that are unrelated to the content of speech are subject to
an intermediate level of scrutiny, because in most cases they
pose a less substantial risk of excising certain ideas or view-
points from the public dialogue” (citation omitted)). A law is
content based if it “applies to particular speech because of the
topic discussed or the idea or message expressed.” Reed, 576
U.S. at 163. It is facially content based “if it targets speech
based on its communicative content.” City of Austin v. Reagan
Nat’l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) (cleaned
up). A law that “requires an examination of speech only in
service of drawing neutral, location-based lines” does not
target speech based upon its communicative content. Id.; see
BellSouth Corp. v. FCC (BellSouth I), 144 F.3d 58, 69 (D.C.
Cir. 1998) (applying intermediate scrutiny to a law that
“defines the field of expression to which it applies by reference
to a set of categories that might in a formal sense be described
as content-based”). Facial neutrality, however, does not end the
analysis. Even laws that are facially content neutral are content
based if they (a) “cannot be justified without reference to the
content of the regulated speech” or (b) “were adopted by the
government because of disagreement with the message the
speech conveys.” Reed, 576 U.S. at 164 (cleaned up).

The provisions of the Act before us are facially content

neutral because they do not target speech based upon its
communicative content. The TikTok-specific provisions
instead straightforwardly require only that TikTok divest its
platform as a precondition to operating in the United States. On
its face, the Act concerns control by a foreign adversary and
not “the topic discussed or the idea or message expressed.” City
of Austin, 596 U.S. at 69 (cleaned up).
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29
TikTok insists the TikTok-specific provisions nonetheless
require strict scrutiny because they single out a particular
speaker. To be sure, laws 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.
“It would be error to conclude, however, that the First
Amendment mandates strict scrutiny for any speech regulation
that applies to one medium (or a subset thereof) but not others.”
Id. at 660; see, e.g., BellSouth I, 144 F.3d at 68 (rejecting argu-
ment that a statute “warrants strict First Amendment review
because it targets named corporations”). Strict scrutiny “is
unwarranted when the differential treatment is justified by
some special characteristic of the particular medium being
regulated.” Turner I, 512 U.S. at 660–61 (cleaned up). As of
now, the TikTok platform is the only global platform of its kind
that has been designated by the political branches as a foreign
adversary controlled application. As explained below, the
Government presents two persuasive national security
justifications that apply specifically to the platform that TikTok
operates. “It should come as no surprise, then, that Congress
decided to impose [certain restrictions] upon [TikTok] only.”
Id. at 661.

Whether the Act, which is facially content neutral, is

subject to strict scrutiny therefore turns upon the Government’s
justifications for the law. See Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989) (stating that a “regulation of expres-
sive activity is content neutral so long as it is justified without
reference to the content of the regulated speech” (cleaned up));
Reed, 576 U.S. at 164 (explaining that laws are content based
if they “cannot be justified without reference to the content of
the regulated speech” (cleaned up)); City of Austin, 596 U.S. at
76 (explaining that “an impermissible purpose or justification”
may render a facially content-neutral restriction content based).
The Government offers two national security justifications:
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30
(1) to counter the PRC’s efforts to collect great quantities of
data about tens of millions of Americans, and (2) to limit the
PRC’s ability to manipulate content covertly on the TikTok
platform. The former does not reference the content of speech
or reflect disagreement with an idea or message. See Ward,
491 U.S. at 792 (finding justifications offered for a municipal
noise regulation content neutral). The Government’s explana-
tion of the latter justification does, however, reference the
content of TikTok’s speech. Specifically, the Government
invokes the risk that the PRC might shape the content that
American users receive, interfere with our political discourse,
and promote content based upon its alignment with the PRC’s
interests. In fact, the Government identifies a particular topic
— Taiwan’s relationship to the PRC — as a “significant
potential flashpoint” that may be a subject of the PRC’s
influence operations, and its declarants identify other topics of
importance to the PRC. Gov’t Br. 22 (quoting Gov’t App. 7
(Decl. of Asst. Dir. of Nat’l Intel. Casey Blackburn)); see also
Gov’t App. 9, 22.

At the same time, the Government’s concern with content

manipulation does not reflect “an impermissible purpose or
justification.” City of Austin, 596 U.S. at 76. On the contrary,
the Government’s aim is to preclude a foreign adversary from
manipulating public dialogue. To that end, the Act narrowly
addresses foreign adversary control of an important medium of
communication in the United States. Consequently, the
Government does not suppress content or require a certain mix
of content. Indeed, content on the platform could in principle
remain unchanged after divestiture, and people in the United
States would remain free to read and share as much PRC propa-
ganda (or any other content) as they desire on TikTok or any
other platform of their choosing. What the Act targets is the
PRC’s ability to manipulate that content covertly. Understood
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31
in that way, the Government’s justification is wholly consonant
with the First Amendment.

Although we can conceive of reasons intermediate scru-

tiny may be appropriate under these circumstances, we ulti-
mately do not rest our judgment on those reasons because the
Act satisfies “the more demanding standard.” Int’l Funding
Inst., 969 F.2d at 1116. We therefore assume without deciding
that strict scrutiny applies and uphold the law on that basis.8
Our decision to resolve the case in this way follows a similar
approach taken by this and other courts when faced with a
government action that would satisfy strict scrutiny. See In re
Sealed Case, 77 F.4th at 829–30; United States v. Hamilton,
699 F.3d 356, 371 (4th Cir. 2012); OPAL – Bldg. AAPI
Feminist Leadership v. Yost, No. 24-3768, 2024 WL 4441458,
at *5 (6th Cir. Oct. 8, 2024); see also Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293, 298–99 (1984)
(assuming without deciding that conduct implicated the First
Amendment and upholding a regulation under intermediate
scrutiny); Int’l Funding Inst., 969 F.2d at 1116 (assuming
without deciding that intermediate scrutiny rather than rational-
basis review applied); United States v. Trump, 88 F.4th 990,
1008 (D.C. Cir. 2023) (assuming without deciding “that the
most demanding scrutiny” applied to an order restricting the
speech of the defendant in a criminal trial); cf. City of Ladue v.
Gilleo, 512 U.S. 43, 53 & n.11 (1994) (conversely assuming

8
We agree with our concurring colleague that the Government’s
data-protection rationale “is plainly content-neutral” and standing
alone would at most trigger intermediate scrutiny. Concurring Op.
12–13. As we have explained, however, that is not clear for the
Government’s content-manipulation justification, and no party has
identified any portion of the Act to which the data justification alone
applies. We therefore assume strict scrutiny applies to our review of
the Act in its entirety and consider both justifications under that
standard.
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32
without deciding intermediate scrutiny rather than strict scru-
tiny should be applied, thereby setting “to one side the content
discrimination question”).

2. The Act satisfies strict scrutiny.

To satisfy strict scrutiny the Government must “demon-

strate that a speech restriction: (1) serves a compelling
government interest; and (2) is narrowly tailored to further that
interest.” In re Sealed Case, 77 F.4th at 830. “A restriction is
narrowly tailored if less restrictive alternatives would not
accomplish the Government’s goals equally or almost equally
effectively.” Id. (cleaned up). The Act clears this high bar.

We emphasize from the outset that our conclusion here is

fact-bound. The multi-year efforts of both political branches to
investigate the national security risks posed by the TikTok
platform, and to consider potential remedies proposed by
TikTok, weigh heavily in favor of the Act. The Government
has offered persuasive evidence demonstrating that the Act is
narrowly tailored to protect national security. “Given the sensi-
tive interests in national security and foreign affairs at stake,”
the Government’s judgment based upon this evidence “is enti-
tled to significant weight.” Holder v. Humanitarian Law
Project, 561 U.S. 1, 36 (2010). Our deference to the
Government’s national-security assessment “is redoubled by
the repeated acts of” the political branches to address the
national security problems presented by the TikTok platform.
Hikvision USA, Inc. v. FCC, 97 F.4th 938, 948 (D.C. Cir.
2024). The Act was the culmination of extensive, bipartisan
action by the Congress and by successive presidents. It was
carefully crafted to deal only with control by a foreign adver-
sary, and it was part of a broader effort to counter a well-
substantiated national security threat posed by the PRC. Under
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33
these circumstances, the provisions of the Act that are before
us withstand the most searching review.

a. The Government’s justifications are

compelling.

Recall that the Government offers two national security

justifications for the Act: to counter (1) the PRC’s efforts to
collect data of and about persons in the United States, and
(2) the risk of the PRC covertly manipulating content on
TikTok. Each constitutes an independently compelling national
security interest.

In reaching that conclusion, we follow the Supreme Court

in affording great weight to the Government’s “evaluation of
the facts” because the Act “implicates sensitive and weighty
interests of national security and foreign affairs.”
Humanitarian Law Project, 561 U.S. at 33–34; Trump v.
Hawaii, 585 U.S. 667, 707–08 (2018) (same); see, e.g., Pac.
Networks Corp. v. FCC, 77 F.4th 1160, 1162, 1164 (D.C. Cir.
2023) (declining to second-guess the Executive’s judgment
regarding a national security threat posed by the PRC). At the
same time, of course, we “do not defer to the Government’s
reading of the First Amendment.” Humanitarian Law Project,
561 U.S. at 34. We simply recognize the comparatively limited
competence of courts at “collecting evidence and drawing
factual inferences in this area.” Id. With regard to national
security issues, the political branches may — and often must
— base their actions on their “informed judgment,” which
“affects what we may reasonably insist on from the
Government.” Id. at 34–35.

(i) National security justifications

The Government provides persuasive support for its

concerns regarding the threat posed by the PRC in general and
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34
through the TikTok platform in particular. As Assistant
Director of National Intelligence Casey Blackburn explained,
the “PRC is the most active and persistent cyber espionage
threat to U.S. government, private-sector, and critical
infrastructure networks.” Its hacking program “spans the
globe” and “is larger than that of every other major nation,
combined.” The PRC has “pre-positioned” itself “for potential
cyber-attacks against U.S. critical infrastructure by building
out offensive weapons within that infrastructure.” Consistent
with that assessment, the Government “has found persistent
PRC access in U.S. critical telecommunications, energy, water,
and other infrastructure.” See China Telecom (Ams.) Corp. v.
FCC, 57 F.4th 256, 262–63 (D.C. Cir. 2022) (describing the
Government’s shift in focus from terrorism to PRC “cyber
threats” and the risk posed by use of PRC-connected “infor-
mation technology firms as systemic espionage platforms”).
“The FBI now warns that no country poses a broader, more
severe intelligence collection threat than China.” Id. at 263.

Of particular relevance to the Government’s first justifica-

tion for the Act, the PRC has engaged in “extensive and years-
long efforts to accumulate structured datasets, in particular on
U.S. persons, to support its intelligence and counterintelligence
operations.” It has done so through hacking operations, such as
by penetrating the U.S. Government Office of Personnel
Management’s systems and taking “reams” of personal data,
stealing financial data on 147 million Americans from a credit-
reporting agency, and “almost certainly” extracting health data
on nearly 80 million Americans from a health insurance
provider.

The PRC’s methods for collecting data include using “its

relationships with Chinese companies,” making “strategic
investments in foreign companies,” and “purchasing large data
sets.” For example, the PRC has attempted “to acquire sensitive
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35
health and genomic data on U.S. persons” by investing in firms
that have or have access to such data. Government
counterintelligence experts describe this kind of activity as a
“hybrid commercial threat.”

The PRC poses a particularly significant hybrid commer-

cial threat because it has adopted laws that enable it to access
and use data held by Chinese companies. See China Telecom
(Ams.) Corp., 57 F.4th at 263 (describing the legal framework
through which the PRC has “augmented the level of state
control over the cyber practices of Chinese companies”). For
example, the National Security Law of 2015 requires all
citizens and corporations to provide necessary support to
national security authorities. Similarly, the Cybersecurity Law
of 2017 requires Chinese companies to grant the PRC full
access to their data and to cooperate with criminal and security
investigations.

The upshot of these and other laws, according to the

Government’s declarants, is that “even putatively ‘private’
companies based in China do not operate with independence
from the government and cannot be analogized to private
companies in the United States.” Through its “control over
Chinese parent companies,” the PRC can also “access infor-
mation from and about U.S. subsidiaries and compel their
cooperation with PRC directives.” As a result, the PRC can
“conduct espionage, technology transfer, data collection, and
other disruptive activities under the disguise of an otherwise
legitimate commercial activity.” According to Kevin
Vorndran, Assistant Director of the FBI’s Counterintelligence
Division, the PRC endeavors strategically to pre-position
commercial entities in the United States that the PRC can later
“co-opt.” These pre-positioning “tactics can occur over the
span of several years of planning and implementation, and they
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36
are one “part of the PRC’s broader geopolitical and long-term
strategy to undermine U.S. national security.”

The PRC likewise uses its cyber capabilities to support its

influence campaigns around the world. Those global “influence
operations” aim to “undermine democracy” and “extend the
PRC’s influence abroad.” Specifically, the PRC conducts
“cyber intrusions targeted to affect U.S. and non-U.S. citizens
beyond its borders — including journalists, dissidents, and
individuals it views as threats — to counter and suppress views
it considers critical of [the PRC].” Notably, the Government
reports that “ByteDance and TikTok Global have taken action
in response to PRC demands to censor content outside of
China.”

As it relates to TikTok in the United States, the

Government predicts that ByteDance and TikTok entities
“would try to comply if the PRC asked for specific actions to
be taken to manipulate content for censorship, propaganda, or
other malign purposes on TikTok US.” The Government says
that ByteDance, which is subject to PRC laws requiring
cooperation with the PRC, could do so by acting unilaterally or
by conscripting its U.S. entities. The former conclusion is evi-
denced by the fact that the PRC maintains a powerful Chinese
Communist Party committee “embedded in ByteDance”
through which it can “exert its will on the company.” As of
2022, that committee “was headed by the company’s chief
editor and comprised at least 138 employees at its Beijing
office, including senior company managers.” The latter conclu-
sion is supported by the fact that TikTok’s U.S. operations are
“heavily reliant” on ByteDance. As TikTok’s declarants have
put it, “TikTok in the United States is an integrated part of the
global platform” supported by teams “spread across several
different corporate entities and countries,” and TikTok is
“highly integrated with ByteDance.”
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37
The Government also identifies several public reports,
which were considered by the Congress prior to passing the
Act, regarding the risks posed by TikTok.9 For example, a
Government declarant points to “reporting by Forbes
Magazine” to illustrate in part why the Government did not
trust TikTok’s proposed mitigation measures. The reporting
suggested “that ByteDance employees abused U.S. user data,
even after the establishment of TTUSDS,” and drew attention
to “audio recordings of ByteDance meetings” that indicated
“ByteDance retained considerable control and influence over
TTUSDS operations.” In its report recommending passage of
the Act, a committee of the Congress collected “a list of public
statements that have been made regarding the national security
risks posed by . . . TikTok.” H.R. Rep. No. 118-417, at 5–12
(2024). According to the committee, public reporting sug-
gested that TikTok had stored sensitive information about U.S.
persons (including “Social Security numbers and tax identifica-
tions”) on servers in China; TikTok’s “China-based employ-
ees” had “repeatedly accessed non-public data about U.S.
TikTok users”; ByteDance employees had “accessed TikTok
user data and IP addresses to monitor the physical locations of

9
Although our disposition of this case does not turn upon these
reports, the Congress and the President obviously were entitled to
consider such materials when deciding whether to define TikTok as
a foreign adversary controlled application under the Act. Indeed, we
have “approved” the use of similar public materials by the President
when making decisions to designate people or entities under various
national-security related statutes. See Zevallos v. Obama, 793 F.3d
106, 109, 113 (2015) (finding it “clear that the government may
decide to designate an entity based on a broad range of evidence,
including intelligence data and hearsay declarations” (quoting Holy
Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (2003)
(regarding designation of an entity as a Specially Designated Global
Terrorist))).
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38
specific U.S. citizens”; and PRC agents had inspected
“TikTok’s internal platform.” Id. at 7–10.

The resulting judgment of the Congress and the Executive

regarding the national security threat posed by the TikTok
platform “is entitled to significant weight, and we have persua-
sive evidence [in the public record] before us to sustain it.”
Humanitarian Law Project, 561 U.S. at 36. The petitioners
raise several objections to each national security justification,
which we take up next, but the bottom line is that they fail to
overcome the Government’s considered judgment and the
deference we owe that judgment.

(ii) Data collection

TikTok disputes certain details about the Government’s

concern with its collection of data on U.S. persons but misses
the forest for the trees. The TikTok platform has more than 170
million monthly users in the United States. It is an immensely
popular platform on which users in the United States have
uploaded more than 5.5 billion videos in a single year.
According to TikTok’s “privacy policy,” TikTok automatically
collects large swaths of data about its users, including device
information (IP address, keystroke patterns, activity across
devices, browsing and search history, etc.) and location data
(triangulating SIM card or IP address data for newer versions
of TikTok and GPS information for older versions). TikTok,
Privacy Policy, https://perma.cc/E36Q-M3KS (last updated
Aug. 19, 2024). It may also collect image and audio infor-
mation (including biometric identifiers and biometric infor-
mation such as faceprints and voiceprints); metadata (describ-
ing how, when, where, and by whom content was created, col-
lected, or modified); and usage information (including content
that users upload to TikTok). Id. That is not to mention infor-
mation that users voluntarily provide, such as name, age,
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39
username, password, email, phone number, social media
account information, messages exchanged on the platform and,
“with your permission,” your “phone and social network con-
tacts.” Id. TikTok’s “privacy policy” also makes clear that it
uses these data to “infer additional information” about its users.
Given the magnitude of the data gathered by TikTok and
TikTok’s connections to the PRC, two consecutive presidents
understandably identified TikTok as a significant vulnerability.
Access to such information could, for example, allow the PRC
to “track the locations of Federal employees and contractors,
build dossiers of personal information for blackmail, and
conduct corporate espionage.” Addressing the Threat Posed by
TikTok, 85 Fed. Reg. at 48637.

TikTok does not deny that it collects a substantial amount

of data on its users. Instead TikTok disputes details about the
Government’s understanding of its data practices and questions
the sincerity of the Government’s data justification. At the
same time, however, TikTok’s own declarants provide support
for the Government’s concern. They emphasize the integrated
nature of the TikTok platform to argue that divestiture would
be infeasible. They argue that prohibiting data sharing between
TikTok in the United States and “the entities that operate the
global platform” would make TikTok uncompetitive with
“rival, global platforms.” They also acknowledge that, even
under TikTok’s proposed NSA, ByteDance would continue to
have access to some Protected Data on TikTok users in the
United States through “limited access protocols.” They like-
wise state that TikTok’s proposed NSA “does allow for
TTUSDS and Oracle to send ‘Excepted Data’ to ByteDance.”

Set against those statements, TikTok’s arguments

concerning the specific data collected and TikTok’s voluntary
data protection efforts fall flat. For example, TikTok quibbles
with the Government’s stated concern that TikTok collects data
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40
on users’ “precise locations, viewing habits, and private mes-
sages,” including “data on users’ phone contacts who do not
themselves use TikTok.” Gov’t Br. 1; see TikTok Reply Br. 25.
According to a TikTok declarant, the current version of TikTok
can only “approximate users’ geographic locations.” Access to
a user’s contact list, likewise, is currently available only if a
user affirmatively opts in, and it is “anonymized and used only
to facilitate connections with other TikTok users.” TikTok
Reply Br. 25. TikTok further points to other data protections
that it claims to provide, such as storing sensitive user data in
the United States and controlling access to them.

The Government’s data-related justification for the Act,

however, does not turn on the details of TikTok’s mitigation
measures. Even after extended negotiations, TikTok could not
satisfactorily resolve the Government’s concerns. We have no
doubt, and the Government has never denied, that TikTok’s
proposed NSA would mitigate the Government’s concerns to
some extent. Nor do we doubt that TikTok’s voluntary mitiga-
tion efforts provide some protection. The problem for TikTok
is that the Government exercised its considered judgment and
concluded that mitigation efforts short of divestiture were
insufficient, as a TikTok declarant puts it, to mitigate “risks to
acceptable levels.” At bottom, the Government lacks confi-
dence that it has sufficient visibility and resources to monitor
TikTok’s promised measures, nor does it have “the requisite
trust” that “ByteDance and TTUSDS would comply in good
faith.” The court can neither fault nor second guess the
Government on these crucial points.

This situation is much like that in Pacific Networks Corp.

v. FCC, 77 F.4th 1160 (D.C. Cir. 2023), which involved the
Executive’s decision to revoke authorizations held by PRC-
controlled companies to operate communication lines in the
United States. There, as here, the PRC indirectly controlled the
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41
companies “through a web of foreign affiliates.” 77 F.4th at
1163 (cleaned up). The Executive “concluded that China’s
ownership raised significant concerns that the [companies]
would be forced to comply with Chinese government
requests.” Id. (cleaned up). The Government was concerned
that the PRC could “access, monitor, store, and in some cases
disrupt or misroute U.S. communications, which in turn
[would] allow them to engage in espionage and other harmful
activities against the United States.” Id. (cleaned up). The
Executive “further concluded that the [companies] had shown
a lack of candor and trustworthiness” and therefore “nothing
short of revocation would ameliorate the national-security
risks.” Id. This court declined the appellants’ invitation to
“second-guess” the Executive’s judgment regarding the threat
to national security. Id. at 1164. We also upheld the
Executive’s conclusion that the companies’ “untrustworthiness
would make any mitigation agreement too risky” in part
because the Executive could not “comprehensively monitor
compliance” or “reliably detect surreptitious, state-sponsored
efforts at evasion.” Id. at 1165–66. The same considerations
similarly support the Government’s judgment here.

We also reject TikTok’s argument that the Government’s

data-related concerns are speculative. The Government “need
not wait for a risk to materialize” before acting; its national
security decisions often must be “based on informed judg-
ment.” China Telecom (Ams.) Corp., 57 F.4th at 266. Here the
Government has drawn reasonable inferences based upon the
evidence it has. That evidence includes attempts by the PRC to
collect data on U.S. persons by leveraging Chinese-company
investments and partnerships with U.S. organizations. It also
includes the recent disclosure by former TikTok employees
that TikTok employees “share U.S. user data on PRC-based
internal communications systems that China-based ByteDance
employees can access,” and that the ByteDance subsidiary
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42
responsible for operating the platform in the United States
“approved sending U.S. data to China several times.” In short,
the Government’s concerns are well founded, not speculative.

TikTok next contends that, because other companies with

operations in China collect data in the United States, its data
collection is not the Government’s real concern. As already
explained, however, the Act complements the Data Broker
Law, which limits the access of any foreign adversary country
(or entity controlled by such a country) to data from third-party
brokers. The Act also includes a generally applicable frame-
work through which the Executive can address other foreign
adversary controlled applications in the future. That the Act
does not fully solve the data collection threat posed by the PRC
does not mean it was not a step in the right direction. Moreover,
TikTok does not identify any company operating a comparable
platform in the United States with equivalent connections to the
PRC. Nor would it be dispositive if TikTok had done so
because the political branches are free to “focus on their most
pressing concerns.” Williams-Yulee v. Florida Bar, 575 U.S.
433, 449 (2015). The Government’s multi-year efforts to
address the risks posed by the TikTok platform support the
conclusion that TikTok was, in fact, the Government’s most
pressing concern.

(iii) Content manipulation

Preventing covert content manipulation by an adversary

nation also serves a compelling governmental interest. The
petitioners object for two reasons, neither of which persuades.

First, TikTok incorrectly frames the Government’s

justification as suppressing propaganda and misinformation.
The Government’s justification in fact concerns the risk of the
PRC covertly manipulating content on the platform. For that
reason, again, the Act is directed only at control of TikTok by
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43
a foreign adversary nation. At points, TikTok also suggests the
Government does not have a legitimate interest in countering
covert content manipulation by the PRC. To the extent that is
TikTok’s argument, it is profoundly mistaken. “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. Our political system
and cultural life rest upon this ideal.” Turner I, 512 U.S. at 641.
When a government — domestic or foreign — “stifles speech
on account of its message . . . [it] contravenes this essential
right” and may “manipulate the public debate through coercion
rather than persuasion.” Id.; see also Nat’l Rifle Ass’n of Am.,
602 U.S. at 187 (explaining that at the core of the First
Amendment “is the recognition that viewpoint discrimination
is uniquely harmful to a free and democratic society”).

In this case, a foreign government threatens to distort free

speech on an important medium of communication. Using its
hybrid commercial strategy, the PRC has positioned itself to
manipulate public discourse on TikTok in order to serve its
own ends. The PRC’s ability to do so is at odds with free speech
fundamentals. Indeed, the First Amendment precludes a
domestic government from exercising comparable control over
a social media company in the United States. See NetChoice,
144 S. Ct. at 2407 (explaining that a state government “may not
interfere with private actors’ speech” because the First
Amendment prevents “the government from tilting public
debate in a preferred direction” (cleaned up)). Here the
Congress, as the Executive proposed, acted to end the PRC’s
ability to control TikTok. Understood in that way, the Act actu-
ally vindicates the values that undergird the First Amendment.

Like the Supreme Court, “We also find it significant that

[the Government] has been conscious of its own responsibility
to consider how its actions may implicate constitutional
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44
concerns.” Humanitarian Law Project, 561 U.S. at 35. Rather
than attempting itself to influence the content that appears on a
substantial medium of communication, the Government has
acted solely to prevent a foreign adversary from doing so. As
our concurring colleague explains, this approach follows the
Government’s well-established practice of placing restrictions
on foreign ownership or control where it could have national
security implications. Concurring Op. 2–5; see 47 U.S.C.
§ 310(a)–(b) (restricting foreign control of radio licenses); Pac.
Networks Corp., 77 F.4th at 1162 (upholding the FCC’s deci-
sion to revoke authorizations to operate communications lines);
Moving Phones P’ship v. FCC, 998 F.2d 1051, 1055, 1057
(D.C. Cir. 1993) (upholding the Executive’s application of the
Communications Act’s “ban on alien ownership” of radio
licenses “to safeguard the United States from foreign influence
in broadcasting” (cleaned up)); see also Palestine Info. Off. v.
Shultz, 853 F.2d 932, 936, 945 (D.C. Cir. 1988) (upholding the
Executive’s divestiture order under the Foreign Missions Act
regarding an organization the activities of which “were deemed
inimical to America’s interests”); 49 U.S.C. § 40102(a)(2),
(15) (requiring that a U.S. “air carrier” be “under the actual
control of citizens of the United States”).

Consequently, the Act is not, as the User Petitioners sug-

gest, an effort to “control the flow of ideas to the public.”
Lamont v. Postmaster Gen., 381 U.S. 301, 306–07 (1965). Nor
are the User Petitioners correct to characterize the TikTok-
specific provisions as a prior restraint on speech or an infringe-
ment on associational rights. Were a divestiture to occur,
TikTok Inc.’s new owners could circulate the same mix of
content as before without running afoul of the Act. People in
the United States could continue to engage with content on
TikTok as at present. The only change worked by the Act is
that the PRC could not “manipulate the public debate through
coercion rather than persuasion.” Turner I, 512 U.S. at 641.
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45
TikTok resists this conclusion by emphasizing stray com-
ments from the congressional proceedings that suggest some
congresspersons were motivated by hostility to certain content.
The Supreme Court, however, has repeatedly instructed that
courts should “not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive.”
O’Brien, 391 U.S. at 383; City of Renton v. Playtime Theaters,
Inc., 475 U.S. 41, 47–49 (1986) (rejecting speculation about
the “motivating factor” behind an ordinance justified without
reference to speech); Turner I, 512 U.S. at 652 (similar). The
Act itself is the best evidence of the Congress’s and the
President’s aim. The narrow focus of the Act on ownership by
a foreign adversary and the divestiture exemption provide
convincing evidence that ending foreign adversary control, not
content censorship, was the Government’s objective.

The petitioners nevertheless contend the divestiture provi-

sions and an exclusion from the generally applicable track
betray the Government’s real purpose to ban TikTok as a
means of censoring content. They claim the divestiture exemp-
tion cannot be satisfied in the time allowed by the Act, which
effectively makes it a ban. Conversely, they argue an exclusion
from the definition of “covered company” — for entities that
operate an “application whose primary purpose is to allow
users to post product reviews, business reviews, or travel
information and reviews,” § 2(g)(2)(B) — creates a loophole
to the generally applicable track so large that no other company
is likely ever to be subjected to the prohibitions of the Act.10
The upshot, according to TikTok, is that the Congress

10
The parties offer competing interpretations of this exclusion.
Because we do not doubt the Government’s “proffered . . . interest
actually underlies the law” under either interpretation, we have no
occasion to interpret that provision in this case. Blount v. SEC,
61 F.3d 938, 946 (D.C. Cir. 1995) (quotation omitted).
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46
“purpose-built the Act to ban TikTok because it objects to
TikTok’s content.” TikTok Reply Br. 28.

We discern no such motive from the divestiture provisions

or the design of the generally applicable framework. Although
the Government does not rebut TikTok’s argument that 270
days is not enough time for TikTok to divest given its high
degree of integration with ByteDance, 270 days is a substantial
amount of time. If TikTok (or any company subject to the Act)
is unable to divest within 270 days, it can do so later and
thereby lift the prohibitions. § 2(c)(1)(A)–(B). Consequently,
we detect no illicit motive on the part of the Congress to ban
TikTok and suppress its speech by means of the divestiture
provisions.

The same is true of the reviews exclusion, which appears

to reflect a good-faith effort by the Congress to narrow the
scope of the general track to applications the Congress deter-
mined to present the greatest risks to national security. That the
Congress created a new mechanism by which the Executive
can counter threats similar to TikTok in the future — and
excluded a category of applications from that framework —
does not suggest the Congress’s national security concerns
specific to TikTok were a charade. In fact, the Congress was
not required to include a generally applicable framework at all;
it could have focused only on TikTok. See Williams-Yulee,
575 U.S. at 452 (“The First Amendment does not put [the
Congress] to [an] all-or-nothing choice”). The Congress was
entitled to address the threat posed by TikTok directly and
create a generally applicable framework, however imperfect,
for future use. It would be inappropriate to “punish” the
Congress for attempting to address future national security
threats by inferring an impermissible motive. Id.
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47
Second, TikTok contends the Government’s content-
manipulation rationale is speculative and based upon factual
errors. TikTok fails, however, to grapple fully with the
Government’s submissions. On the one hand, the Government
acknowledges that it lacks specific intelligence that shows the
PRC has in the past or is now coercing TikTok into manipulat-
ing content in the United States. On the other hand, the
Government is aware “that ByteDance and TikTok Global have
taken action in response to PRC demands to censor content
outside of China.” The Government concludes that ByteDance
and its TikTok entities “have a demonstrated history of
manipulating the content on their platforms, including at the
direction of the PRC.” Notably, TikTok never squarely denies
that it has ever manipulated content on the TikTok platform at
the direction of the PRC. Its silence on this point is striking
given that “the Intelligence Community’s concern is grounded
in the actions ByteDance and TikTok have already taken over-
seas.” It may be that the PRC has not yet done so in the United
States or, as the Government suggests, the Government’s lack
of evidence to that effect may simply reflect limitations on its
ability to monitor TikTok.

In any event, the Government reasonably predicts that

TikTok “would try to comply if the PRC asked for specific
actions to be taken to manipulate content for censorship, propa-
ganda, or other malign purposes” in the United States. That
conclusion rests on more than mere speculation. It is the
Government’s “informed judgment” to which we give great
weight in this context, even in the absence of “concrete evi-
dence” on the likelihood of PRC-directed censorship of TikTok
in the United States. Humanitarian Law Project, 561 U.S. at
34–35.

The purported factual errors identified by TikTok do not

alter that conclusion. TikTok principally faults the Government
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48
for claiming the recommendation engine is “based in China”
because it now resides in the Oracle cloud. TikTok Reply Br.
21–22. No doubt, but the Government’s characterization is
nonetheless consistent with TikTok’s own declarations.
TikTok’s declarants explained that now and under its proposed
NSA “ByteDance will remain completely in control of
developing the Source Code for all components that comprise
‘TikTok’ . . . including the Recommendation Engine.” They
likewise represent that TikTok presently “relies on the support
of employees of other ByteDance subsidiaries” for code
development. Even when TikTok’s voluntary mitigation
measures have been fully implemented, the “source code
supporting the TikTok platform, including the recommenda-
tion engine, will continue to be developed and maintained by
ByteDance subsidiary employees, including in the United
States and in China.” TikTok is therefore correct to say the
recommendation engine “is stored in the Oracle cloud,” but
gains nothing by flyspecking the Government’s characteriza-
tion of the recommendation engine still being in China.

b. The Act is narrowly tailored.

The TikTok-specific provisions of the Act are narrowly

tailored to further the Government’s two national security
interests. “It bears emphasis that, under the strict-scrutiny
standard, a restriction must be narrowly tailored, not perfectly
tailored.” In re Sealed Case, 77 F.4th at 830–31 (cleaned up).
Here the relevant provisions of the Act apply narrowly because
they are limited to foreign adversary control of a substantial
medium of communication and include a divestiture exemp-
tion. By structuring the Act in this way, the Congress addressed
precisely the harms it seeks to counter and only those harms.
Moreover, as already explained, the Act’s emphasis on
ownership and control follows a longstanding approach to
counter foreign government control of communication media
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49
in the United States. E.g., Pac. Networks Corp., 77 F.4th at
1162; Moving Phones P’ship, 998 F.2d at 1055–56. The
petitioners argue nonetheless that there are less restrictive
alternatives available and contend the Act is fatally both
overinclusive and underinclusive.

(i) TikTok’s proposed NSA

TikTok presents its proposed NSA as a less restrictive

alternative. TikTok contends that, at minimum, our considera-
tion of this alternative implicates factual disputes that require
additional proceedings. TikTok, however, misapprehends the
thrust of the Government’s objection to the proposed NSA. A
senior Executive Branch official involved in the negotiations
provided several reasons for which the Executive rejected the
proposal. These included lack of U.S. visibility into PRC
activity, the Executive’s inability to monitor compliance with
the NSA, and therefore its inadequate ability to deter non-
compliance; insufficient operational independence for TikTok;
and insufficient data protections for Americans. Moreover, and
“most fundamentally,” the NSA “still permitted certain data of
U.S. users to flow to China, still permitted ByteDance execu-
tives to exert leadership control and direction over TikTok’s
US operations, and still contemplated extensive contacts
between the executives responsible for the TikTok U.S. plat-
form and ByteDance leadership overseas.” At bottom,
acceptance of “the Final Proposed NSA would ultimately have
relied on the Executive Branch trusting ByteDance” to comply
with the agreement, which the Government understandably
judged it could not do. Based upon this array of problems, the
Executive rejected the proposal and pursued a legislative
solution.

TikTok adamantly disagrees with the Executive’s judg-

ment. It is not, however, the job of the petitioners or of the
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50
courts to substitute their judgments for those of the political
branches on questions of national security. See Hernández v.
Mesa, 589 U.S. 93, 113 (2020). Understandably, TikTok
therefore attempts to couch its disagreement in factual terms.
But TikTok does not present any truly material dispute of fact.

Consider, for example, TikTok’s claim that data

anonymization under TikTok’s proposed NSA would effec-
tively mitigate the Government’s concerns. The Government
does not dispute that TikTok’s proposal provides for data
anonymization; rather, it deems this protection vulnerable to
circumvention and therefore insufficient to resolve the
Government’s data-related concerns. That is a dispute of judg-
ment not of fact. A similar point applies to the parties’ disagree-
ment regarding the feasibility of Oracle reviewing TikTok’s
source code for the Government. TikTok’s declarant says
Oracle could apply methods consistent with industry standards
to streamline that review and points out that TikTok’s proposed
NSA would require Oracle to conduct its initial review in 180
days. The Government does not disagree; rather, it doubts the
adequacy of Oracle’s review of the source code —
notwithstanding “Oracle’s considerable resources” — based
upon extensive technical conversations with Oracle. Moreover,
even after “assuming every line of Source Code could be
monitored and verified,” the Government still concluded that
“the PRC could exert malign influence” through commercial
features of the platform that would not be identified through a
review of the code. TikTok’s disagreement with the
Government boils down to a dispute about the sufficiency of
Oracle’s review to mitigate threats posed by the PRC, which is
a matter of judgment, not of fact.

The same is true regarding the role of TTUSDS in limiting

the PRC’s ability to control TikTok through ByteDance. The
Government concludes that TTUSDS would be insufficiently
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51
independent of ByteDance, fears TTUSDS could be pressured
to do the latter’s bidding, and doubts TTUSDS could prevent
interference by ByteDance. Indeed, the Government predicts
that “TTUSDS personnel here would not resist demands to
comply” with directives “even if aware of pressure from the
PRC government.” Whether TTUSDS sufficiently mitigates
the risk of PRC interference through ByteDance is ultimately
an issue of judgment, not of fact.

Similarly, the parties’ dispute about the adequacy of the

temporary shutdown option — or “kill switch” — under the
NSA centers on the Government’s ultimate conclusion
regarding the sufficiency of that option. The Government’s
declarant on this point explains that the “temporary stop would
not . . . give the U.S. Government anything resembling com-
plete discretion to shut down the TikTok platform based on its
own independent assessment of national security risk and
assessments from the U.S. Intelligence Community.” TikTok’s
declarant, by contrast, characterizes the so-called “kill switch”
as a “unilateral remedy” of unparalleled “magnitude in a
CFIUS mitigation agreement,” which could be applied by the
Government if TikTok deployed unreviewed source code or if
TikTok violates the protocols for handling Protected Data.
Rhetoric aside, the substance of TikTok’s objection is the
Government’s ultimate conclusion that the shutdown option
would not adequately address the Government’s concerns
because of the limited scope of the shutdown option as well as
the Government’s inability to monitor TikTok.

In sum, even if we resolved every supposed factual dispute

in TikTok’s favor, the result would be the same. For us to
conclude the proposed NSA is an equally or almost equally
effective but less restrictive alternative, we would have to reject
the Government’s risk assessment and override its ultimate
judgment. That would be wholly inappropriate after Executive
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52
Branch officials “conducted dozens of meetings,” considered
“scores of drafts of proposed mitigation terms,” and engaged
with TikTok as well as Oracle for more than two years in an
effort to work out an acceptable agreement. Here “respect for
the Government’s conclusions is appropriate.” Humanitarian
Law Project, 561 U.S. at 34.

The petitioners attempt to draw a distinction between the

Executive’s rejection of the proposed NSA and the Congress’s
deliberations prior to passing the Act. The petitioners complain
the Congress failed even to consider TikTok’s proposed NSA.
Because the Act applies narrowly to the TikTok platform,
TikTok goes so far as to argue the Congress was required to
make legislative findings to explain its rationale for passing the
Act. These objections are unavailing. The Congress “is not
obligated, when enacting its statutes, to make a record of the
type that an administrative agency or court does to accommo-
date judicial review.” Time Warner Entm’t Co. v. FCC, 93 F.3d
957, 976 (D.C. Cir. 1996) (cleaned up); Sable Commc’ns of
Cal., Inc. v. FCC, 492 U.S. 115, 133 (1989) (Scalia, J.,
concurring) (“Neither due process nor the First Amendment
requires legislation to be supported by committee reports, floor
debates, or even consideration, but only by a vote”). Moreover,
the petitioners cannot credibly claim the Congress was any less
aware than the Executive of the proposed NSA as a potential
alternative. Prior to passage of the Act, while the Executive was
negotiating the proposed NSA with TikTok, Executive Branch
officials briefed congressional committees several times. The
record shows that congresspersons were aware of TikTok’s
voluntary mitigation efforts; TikTok and its supporters, includ-
ing the PRC itself, lobbied the Congress not to pass the Act;
and TikTok displayed “a pop-up message urging users to
contact their representatives about the Act,” which prompted a
deluge of calls to congresspersons. We think it clear the
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53
Congress did not reject the proposed NSA for lack of familiar-
ity; like the Executive, the Congress found it wanting.

To qualify as a less restrictive alternative, the proposed

NSA must “accomplish the Government’s goals equally or
almost equally effectively.” In re Sealed Case, 77 F.4th at 830
(cleaned up). As already stated, the Government has offered
considerable evidence that the NSA would not resolve its
national security concerns. Divestiture, by contrast, clearly
accomplishes both goals more effectively than would the
proposed NSA. It has the added virtue of doing so with greater
sensitivity to First Amendment concerns by narrowly
mandating an end to foreign adversary control. The proposed
NSA, by contrast, contemplates an oversight role for the U.S.
Government that includes what TikTok calls a “kill switch
remedy” and the Government characterizes as “temporary
stop” authority over the platform. Entangling the U.S. govern-
ment in the daily operations of a major communications plat-
form would raise its own set of First Amendment questions.
Indeed, it could be characterized as placing U.S. government
“officials astride the flow of [communications],” the very
arrangement excoriated in Lamont, 381 U.S. at 306. Divestiture
poses no such difficulty.

(ii) Other options

The petitioners suggest a variety of other options that the

Government also found inadequate. These include disclosure
or reporting requirements, the Government using speech of its
own to counter any alleged foreign propaganda, limiting
TikTok’s collection of location and contact data, and extending
the ban of TikTok on government devices to government
employees’ personal devices. None would “accomplish the
Government’s goals equally or almost equally effectively.” In
re Sealed Case, 77 F.4th at 830 (cleaned up).
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54
The first two suggestions obviously fall short. As the
Government points out, covert manipulation of content is not a
type of harm that can be remedied by disclosure. The idea that
the Government can simply use speech of its own to counter
the risk of content manipulation by the PRC is likewise naïve.
Moreover, the petitioners’ attempt to frame the use of
Government speech as a means of countering “alleged foreign
propaganda,” Creator Br. 54, is beside the point. It is the “secret
manipulation of the content” on TikTok — not foreign propa-
ganda — that “poses a grave threat to national security.” Gov’t
Br. 36. No amount of Government speech can mitigate that
threat nearly as effectively as divestiture.

The petitioners’ other proposals are similarly flawed.

Creators’ contention that the Government “could simply ban
TikTok from collecting . . . location and contact data”
fundamentally misapprehends the Government’s data-
collection concerns, which are not limited to two types of data.
Creator Reply Br. 29. The data-collection risks identified by
the Government include the PRC’s ability to use TikTok for
“bulk collection of data” and for “targeted collection on
individuals.” Gov’t Br. 48. Indeed, the FBI has specifically
assessed that “TikTok could facilitate the PRC’s access to U.S.
users’ data, which could enable PRC espionage, technology
transfer, data collection and influence activities.” For example,
the PRC could use TikTok data to enhance its “artificial intelli-
gence capabilities” and obtain “extensive information about
users and non-users, including U.S. Government and U.S.
intelligence community employees, U.S. political dissidents,
and other individuals of interest to the PRC.” Moreover, even
if the Government’s concerns were limited to certain categories
of data, its inability to monitor TikTok makes a targeted
prohibition on the collection of specific types of data less
effective than divestiture.
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55
For similar reasons, a limited prohibition addressing
government employees would not suffice. The Government’s
concern extends beyond federal employees to “family mem-
bers or potential future government employees (many of whom
may be teenagers today, a particular problem given TikTok’s
popularity among young people).” Indeed, as the Government
emphasizes, the Congress was legislating “in the interest of all
Americans’ data security.” Gov’t Br. 58. A more limited
prohibition would not be as effective as divestiture.

The User Petitioners also identify as options various

legislative proposals, such as the Adversarial Platform
Prevention Act of 2021, S. 47, 117th Cong. (2021); Internet
Application I.D. Act, H.R. 4000, 117th Cong. (2021); and the
TELL Act, H.R. 742, 118th Cong. (2023), that the Congress
did not adopt. In substance, these proposals are similar to the
alternatives we just considered and found less effective than
divestiture. If anything, those unenacted lesser legislative pro-
posals undermine rather than advance the User Petitioners’
preferred alternatives: That the Congress considered a series of
other measures before ultimately adopting the Act implies only
that the Congress determined nothing short of divestiture
would sufficiently avoid the risks posed by TikTok.

In short, the petitioners suggest an array of options none of

which comes close to serving either, much less both, the
Government’s goals as effectively as does divestiture. Each
consequently fails to qualify as a less restrictive alternative for
purposes of the First Amendment.

(iii) Overinclusive / underinclusive

The petitioners contend the Act is both overinclusive and

underinclusive. They argue the Act is overinclusive primarily
because the TikTok-specific provisions apply to another
ByteDance product, CapCut, that can be used to edit videos on
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56
various platforms including TikTok but does not collect user
data or present an opportunity for PRC manipulation of con-
tent. Given the Government’s well-supported concerns about
ByteDance, it was necessary for the Act to apply to all
ByteDance entities. Moreover, the petitioners fail to demon-
strate that neither of the Government’s two national security
concerns implicate CapCut. We therefore conclude the
TikTok-specific provisions of the Act are not overinclusive.

We likewise conclude the Act is not fatally underinclusive.

The main purpose of inquiring into underinclusiveness is “to
ensure that the proffered state interest actually underlies the
law.” Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 17 (D.C. Cir.
2009) (cleaned up). For that reason, underinclusiveness is fatal
to a regulation only “if it cannot fairly be said to advance any
genuinely substantial governmental interest, because it pro-
vides only ineffective or remote support for the asserted goals,
or limited incremental support.” Id. (cleaned up). As already
explained, the Congress’s decision separately and more
immediately to address TikTok, the Executive’s “most press-
ing” cause for concern, was permissible. See Williams-Yulee,
575 U.S. at 449. That would be so even if the Congress had not
included the generally applicable framework to deal with other
foreign adversary controlled platforms or had not passed the
Data Broker Law alongside the Act. That the Government did
both supports our conclusion that the Act reflects a good-faith
effort on the part of the Government to address its national
security concerns.
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57
* * *
To summarize our First Amendment analysis: The
Government has provided two national security justifications
for the Act. We assumed without deciding the Act is subject to
strict scrutiny and we now uphold the TikTok-specific portions
of the Act under each justification. This conclusion is sup-
ported by ample evidence that the Act is the least restrictive
means of advancing the Government’s compelling national
security interests.

C. Equal Protection

TikTok argues that the Act violates its right to the equal
protection of the laws because it singles out TikTok for disfa-
vored treatment relative to other similarly situated platforms.
The Government contends its justifications for the Act satisfy
the requirement of equal protection and add that TikTok
received more process than a company would receive under the
generally applicable provisions. We conclude the Act is con-
sistent with the requirement of equal protection.

“In equal protection challenges the critical question is

always whether there is an appropriate governmental interest
suitably furthered by the differential treatment at issue.” Cmty-
Serv. Broad. of Mid-Am., Inc. v. FCC, 593 F.2d 1102, 1122
(D.C. Cir. 1978) (cleaned up). This question “lies at the
intersection” of equal protection and the First Amendment.
News Am. Pub., Inc. v. FCC, 844 F.2d 800, 804 (D.C. Cir.
1988) (cleaned up).

Although we review “conventional economic legislation”

under a “minimum rationality” standard, id. at 802, we have
held something “more is required than ‘minimum rationality’”
when a regulation burdens “a single publisher/broadcaster,” id.
at 814. See also BellSouth I, 144 F.3d at 68 (explaining that
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58
News America does not require strict scrutiny for “statutes
singling out particular persons for speech restrictions”); Cmty-
Serv. Broad. of Mid-Am., Inc., 593 F.2d at 1122 (applying to a
“statute affecting First Amendment rights” an “equal protec-
tion standard [that] is closely related to the O’Brien First
Amendment tests”). Having concluded the relevant parts of the
Act do not violate the First Amendment even when subjected
to heightened scrutiny, we readily reach the same conclusion
when analyzing the Act in equal protection terms.

TikTok’s equal protection argument boils down to point-

ing out that TikTok alone is singled out by name in the Act,
unlike companies that in the future may be subject to the gener-
ally applicable provisions of the Act. Merely singling a com-
pany out, however, does not amount to an equal protection
violation if doing so furthers an appropriate governmental
interest. The controlling question is “whether there is an
appropriate governmental interest suitably furthered by the
differential treatment at issue.” Cmty-Serv. Broad. of Mid-Am.,
Inc., 593 F.2d at 1122–23 (holding statute violated First and
Fifth Amendments by unjustifiably burdening only non-
commercial broadcasters). Here the Government justified the
Act by presenting two national security risks specific to the
TikTok platform. By naming TikTok in the Act, the Congress
ensured TikTok-related risks were addressed promptly.
Simultaneously creating a generally applicable framework
gave the Executive a tool to address similar risks that may come
to light in the future. This differential treatment furthers the
Government’s national security interest in countering the
immediate threat posed by the PRC’s control of TikTok.

The governmental interests here also stand in stark con-

trast to the case upon which TikTok primarily relies, in which
the “sole apparent difference” in treatment between similarly
situated broadcasters was due to “an accident of timing.” News
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59
Am. Pub., Inc., 844 F.2d at 815. That case involved legislation
that regulated waivers of the rule against newspaper-television
cross-ownership in a way that targeted a single person “with
the precision of a laser beam.” Id. at 814. The legislation,
however, bore “only the most strained relationship to the pur-
pose hypothesized by the [Government].” Id. Here, by contrast,
the Act bears directly on the TikTok-specific national security
harms identified and substantiated by the Government.

Moreover, as the Government notes, in certain respects

TikTok received more process than would a company coming
under the generally applicable provisions. TikTok participated
in a prolonged negotiation with the Executive that featured
numerous meetings and several proposals. It also received
individualized consideration by the Congress prior to being
required to divest. In contrast, under the generally applicable
provisions the Executive need only provide “public notice” and
issue a “public report” to the Congress prior to requiring a com-
pany to sever its ties to an adversary nation. § 2(g)(3)(B). In
short, the Act singled out TikTok because of its known
characteristics and history. It therefore did not violate TikTok’s
constitutional right to equal protection of the laws.

D. The Bill of Attainder Clause

TikTok next claims the Act is a bill of attainder, and there-

fore prohibited by Article I, § 9, clause 3 of the Constitution.
The Government responds that the Bill of Attainder Clause
does not apply to corporations and that, in any event, the Act
does not constitute a legislative punishment. We agree that the
Act is not a bill of attainder.

A law is a bill of attainder if it “(1) applies with specificity,

and (2) imposes punishment.” BellSouth Corp. v. FCC
(BellSouth II), 162 F.3d 678, 683 (D.C. Cir. 1998). Because the
Act applies with specificity, this claim turns on whether the Act
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60
can fairly be deemed a punishment. We conclude the Act is not
a punishment under any of the three tests used to distinguish a
permissible burden from an impermissible punishment.

Before turning to those tests, however, we briefly address

the Government’s threshold argument that the Bill of Attainder
Clause does not apply to corporations. In other cases, we have
assumed without deciding that the clause applies to corpora-
tions but emphasized that differences between commercial
entities and persons need to be considered. See, e.g., Kaspersky
Lab, Inc. v. DHS, 909 F.3d 446, 453–54, 461–63 (D.C. Cir.
2018) (assuming the Bill of Attainder Clause protects corpora-
tions but emphasizing the differences between corporations
and “living, breathing human beings”); BellSouth I, 144 F.3d
at 63 & n.5 (assuming the clause protects corporations but
recognizing the importance of understanding “its effect on
flesh-and-blood people”). We take the same approach here.

To determine whether a law constitutes a punishment, we

analyze:
(1) whether the challenged statute falls within the
historical meaning of legislative punishment [the
historical test];
(2) whether the statute, viewed in terms of the type and
severity of burdens imposed, reasonably can be
said to further nonpunitive legislative purposes
[the functional test]; and
(3) whether the legislative record evinces a congres-
sional intent to punish [the motivational test].
Kaspersky Lab, Inc., 909 F.3d at 455 (cleaned up). The Act
clearly is not a bill of attainder judged by any of these tests.

TikTok contends the Act satisfies the historical test

because it bars TikTok from its chosen business. TikTok
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61
reasons the prohibitions of the Act are close analogs to two
categories of legislative action historically regarded as bills of
attainder: confiscation of property and legislative bars to
participation in a specific employment or profession. See
BellSouth II, 162 F.3d at 685 (explaining the historical
understanding of punishment). According to TikTok, the Act
effectively requires TikTok to relinquish its property or see it
rendered useless, and it precludes TikTok from continuing to
participate in a legitimate business enterprise. As already
explained, however, the Act requires a divestiture — that is, a
sale, not a confiscation — as a condition of continuing to
operate in the United States. See BellSouth I, 144 F.3d at 65
(explaining that although “structural separation is hardly
costless, neither does it remotely approach the disabilities that
have traditionally marked forbidden attainders”); see also
Kaspersky Lab, Inc., 909 F.3d at 462–63 (comparing a law
requiring the Government to remove from its systems a Russia-
based company’s software to the business regulations in the
BellSouth cases). Nor is the divestiture requirement analogous
to a legislative bar on someone’s participation in a specific
employment or profession. See Kaspersky Lab, Inc., 909 F.3d
at 462 (rejecting a similar analogy in part “because human
beings and corporate entities are so dissimilar” (cleaned up)).

The closer historical analog to the Act is a line-of-business

restriction, which does not come within the historical meaning
of a legislative punishment. See BellSouth II, 162 F.3d at 685
(observing “the Supreme Court has approved other line-of-
business restrictions without ever suggesting that the
restrictions constituted ‘punishment’” (collecting cases));
Kaspersky Lab, Inc., 909 F.3d at 463 (explaining
“the BellSouth cases make clear that the Bill of Attainder
Clause tolerates statutes that, in pursuit of legitimate goals such
as public safety or economic regulation, prevent companies
from engaging in particular kinds of business or particular
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62
combinations of business endeavors”). In fact, BellSouth II all
but forecloses TikTok’s argument by recognizing that a
“statute that leaves open perpetually the possibility of
[overcoming a legislative restriction] does not fall within the
historical meaning of forbidden legislative punishment.”
162 F.3d at 685 (quoting Selective Serv. Sys. v. Minn. Pub. Int.
Rsch. Grp., 468 U.S. 841, 853 (1984)) (brackets in original).
The qualified divestiture exemption does just that. It “leaves
open perpetually” the possibility of overcoming the prohibi-
tions in the Act: TikTok can execute a divestiture and return to
the U.S. market at any time without running afoul of the law.

The Act also passes muster under the functional test. For
purposes of this analysis, the “question is not whether a burden
is proportionate to the objective, but rather whether the burden
is so disproportionate that it belies any purported nonpunitive
goals.” Kaspersky Lab, Inc., 909 F.3d at 455 (cleaned up).
Considering our conclusion that the Act passes heightened
scrutiny for purposes of the First Amendment, it obviously
satisfies the functional inquiry here: The Act furthers the
Government’s nonpunitive objective of limiting the PRC’s
ability to threaten U.S. national security through data collection
and covert manipulation of information. The Government’s
solution to those threats “has the earmarks of a rather conven-
tional response to a security risk: remove the risk.” Id. at 457
(cleaned up). In other words, the Government’s attempt to
address the risks posed by TikTok reflects a forward-looking
prophylactic, not a backward-looking punitive, purpose. That
is sufficient to satisfy the functional analysis. See id. at 460
(stating the functional test “does not require that the Congress
precisely calibrate the burdens it imposes to the goals it seeks
to further or to the threats it seeks to mitigate” (cleaned up)).

The so-called motivational test, for its part, hardly merits

discussion. “Given the obvious restraints on the usefulness of
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63
legislative history,” congressional intent to punish is difficult
to establish. Id. at 463 (cleaned up); see also BellSouth II,
162 F.3d at 690 (“Several isolated statements are not sufficient
to evince punitive intent” (cleaned up)). Indeed, the motiva-
tional test is not “determinative in the absence of unmistakable
evidence of punitive intent.” Id. (cleaned up). TikTok does not
come close to satisfying that requirement. We therefore con-
clude the Act does not violate the Bill of Attainder Clause
under any of the relevant tests.

E. The Takings Clause

TikTok claims the Act constitutes a per se regulatory

taking in violation of the Fifth Amendment because it will
render TikTok defunct in the United States. The Government
counters that TikTok has assets that can be sold, and that the
Act requires only divestiture, which need not be uncompen-
sated. Although the Act will certainly have a substantial effect
on the TikTok platform in the United States, regardless whether
TikTok divests, the Act does not qualify as a per se regulatory
taking.

The Supreme Court recognizes two situations in which

regulatory action constitutes a per se taking: (1) where the
government requires that an owner suffer a “physical invasion
of [its] property,” and (2) where a regulation “completely
deprives an owner of all economically beneficial use of [its]
property.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538
(2005) (cleaned up); see Cedar Point Nursery v. Hassid,
594 U.S. 139, 153 (2021) (explaining the first category
includes temporary invasions of property). TikTok’s argument
is of the second variety, but it does not demonstrate the com-
plete deprivation such a claim requires.

Here the causal connection between the Act and the

alleged diminution of value is attenuated because the Act
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64
authorizes a qualified divestiture before (or after) any prohibi-
tions take effect. That presents TikTok with a number of
possibilities short of total economic deprivation. ByteDance
might spin off its global TikTok business, for instance, or it
might sell a U.S. subset of the business to a qualified buyer.

TikTok dismisses divestiture as impractical. One of the

main impediments, however, appears to be export prohibitions
that the PRC erected to make a forced divestiture more difficult
if not impossible. But the PRC, not the divestiture offramp in
the Act, is the source of TikTok’s difficulty. TikTok would
have us turn the Takings Clause into a means by which a for-
eign adversary nation may render unconstitutional legislation
designed to counter the national security threats presented by
that very nation.

In any event, TikTok has not been subjected to a complete

deprivation of economic value. Beyond characterizing divesti-
ture as impossible, TikTok does not dispute that it has assets
that can be sold apart from the recommendation engine, includ-
ing its codebase; large user base, brand value, and goodwill;
and property owned by TikTok. In other words, TikTok has
several economically beneficial options notwithstanding the
PRC’s export restriction.

F. Alternative Relief

As an alternative to permanently enjoining the Act, the

petitioners suggest we issue a temporary injunction and appoint
a special master to make procedural recommendations or
recommend factual findings. Because we have now resolved
the case on the merits, we deny these requests as moot. The
petitioners further object to the Government having filed
classified material and releasing to them only a redacted ver-
sion. Our decision, however, rests solely on the unredacted,
public filings in this case. See China Telecom (Ams.) Corp.,
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65
57 F.4th at 264 (similarly relying on an unclassified record).
Notwithstanding the significant effect the Act may have on the
viability of the TikTok platform, we conclude the Act is valid
based upon the public record.11

III. Conclusion

We recognize that this decision has significant implica-

tions for TikTok and its users. Unless TikTok executes a
qualified divestiture by January 19, 2025 — or the President
grants a 90-day extension based upon progress towards a
qualified divestiture, § 2(a)(3) — its platform will effectively
be unavailable in the United States, at least for a time.
Consequently, TikTok’s millions of users will need to find
alternative media of communication. That burden is attributa-
ble to the PRC’s hybrid commercial threat to U.S. national
security, not to the U.S. Government, which engaged with
TikTok through a multi-year process in an effort to find an
alternative solution.

The First Amendment exists to protect free speech in the

United States. Here the Government acted solely to protect that
freedom from a foreign adversary nation and to limit that
adversary’s ability to gather data on people in the United
States.

For these reasons the petitions are,

Denied.

11
Accordingly, we grant the Government’s motion for leave to file
classified materials and direct the Clerk to file the lodged materials,
though we do not rely on them in denying the petitions.
USCA Case #24-1113 Document #2088317 Filed: 12/06/2024 Page 66 of 92

SRINIVASAN, Chief Judge, concurring in part and

concurring in the judgment:

I fully join all aspects of the court’s opinion today other

than Part II.B, which rejects TikTok’s First Amendment
challenge. As to that challenge, I agree with my colleagues that
the Act does not violate the First Amendment. But I reach that
conclusion via an alternate path. My colleagues do not decide
whether the Act should be subjected to the strictest First
Amendment scrutiny or instead the lesser standard of
intermediate scrutiny because, in their view, the Act satisfies
strict scrutiny regardless. I see no need to decide whether the
Act can survive strict scrutiny, because, in my view, the Act
need only satisfy intermediate scrutiny, which it does. I would
thus answer the question my colleagues leave open while
leaving open the question they answer.

Two features of the Act support applying intermediate

rather than strict scrutiny to resolve TikTok’s First Amendment
challenge. First, in step with longstanding restrictions on
foreign control of mass communications channels, the activity
centrally addressed by the Act’s divestment mandate is that of
a foreign nation rather than a domestic speaker—indeed, not
just a foreign nation but a designated foreign adversary.
Second, the Act mandates divestment of that foreign
adversary’s control over TikTok for reasons lying outside the
First Amendment’s heartland: one reason that is wholly
unrelated to speech, and another that, while connected to
speech, does not target communication of any specific
message, viewpoint, or content.

In those circumstances, the Act’s divestment mandate

need not be the least restrictive means of achieving its national-
security objectives, as strict scrutiny would require. Rather, it
is enough if, per intermediate scrutiny, the divestment mandate
is not substantially broader than necessary to meet those goals.
The Act meets that standard.
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2
A.

TikTok’s First Amendment challenge “implicates the

gravest and most delicate duty that courts are called on to
perform: invalidation of an Act of Congress.” Hodge v. Talkin,
799 F.3d 1145, 1157 (D.C. Cir. 2015) (formatting modified)
(quoting Blodgett v. Holden, 275 U.S. 142, 147–48 (1927)
(Holmes, J., concurring)). And that “most delicate duty”
presents itself here in a setting in which courts already proceed
with suitable caution—when called upon to review the political
branches’ judgments about national security. A strong
bipartisan majority of both Houses of Congress, together with
two successive Presidents (one of whom is also the President-
elect), have determined that divesting TikTok from PRC
control is a national-security imperative. See Op., ante, at pp.
11–16.

While that is the political branches’ across-the-board

assessment of a pressing national-security issue today, we also
take stock of history when considering whether their response
stays within the bounds of the First Amendment. An
established “history and tradition of regulation [is] relevant
when considering the scope of the First Amendment.” City of
Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 75
(2022) (citing Williams-Yulee v. Florida Bar, 575 U.S. 433,
446 (2015)); see Vidal v. Elster, 602 U.S. 286, 301 (2024). It
goes without saying that a social media app through which
some 170 million Americans absorb information and engage
with each other and the world—in the palm of their hands—is
a recent phenomenon. But concerns about the prospect of
foreign control over mass communications channels in the
United States are of age-old vintage. In that respect,
Congress’s decision to condition TikTok’s continued operation
in the United States on severing Chinese control is not a
historical outlier. Rather, it is in line with a historical pattern.
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The first communications medium capable of reaching
mass audiences in real time—radio—was subject to restrictions
on foreign ownership and control from the very outset. The
Radio Act of 1912 required radio operators engaged in
interstate (or international) communications to obtain a license
from the Secretary of Commerce and Labor, but Congress
made licenses available only to U.S. citizens or companies.
Pub. L. No. 62-264, §§ 1–2, 37 Stat. 302, 302–03 (repealed
1927). Congress then extended the restrictions to encompass
foreign control (not just foreign ownership) in the Radio Act of
1927, prohibiting licensing of any company if it had a foreign
officer or director or if one-fifth of its capital stock was in
foreign hands. Pub. L. No. 69-632, § 12, 44 Stat. 1162, 1167
(repealed 1934).

Within a few years, the Communications Act of 1934, Pub.

L. No. 73-416, 48 Stat. 1064, shored up the restrictions on
foreign control. Section 310 of the law incorporated with little
change the 1927 Act’s foreign-control requirements, and also
gave the newly created Federal Communications Commission
(FCC) authority to withhold a license if a company is “directly
or indirectly controlled” by a foreign-dominated parent
company. Id. § 310(a), 48 Stat. at 1086 (emphasis added)
(today codified at 47 U.S.C. § 310(b)(4) (2024)). In urging
Congress to adopt the additional restrictions on foreign control,
the Navy conveyed its concerns that foreign-controlled stations
could “be employed in espionage work and in the
dissemination of subversive propaganda.” Hearings on H.R.
8301 Before the H. Comm. on Interstate & Foreign Com., 73d
Cong. 26 (1934). The FCC has described Section 310’s
original purpose as “protect[ing] the integrity of ship-to-shore
and governmental communications” from foreign interference
and “thwart[ing] the airing of foreign propaganda on broadcast
stations.” Foreign Investment in Broadcast Licenses, 78 Fed.
Reg. 75563, 75564 (Nov. 13, 2013).
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4
Section 310 continues to restrict foreign control of radio
licenses, including ones used for broadcast communication and
wireless cellular services. See 47 U.S.C. § 310(a)–(b). And
while that provision regulates wireless licenses, limitations on
foreign control also exist for wired transmission lines under
Section 214 of the same law. 47 U.S.C. § 214(a); see also id.
§ 153(11), (50)–(53).

When deciding whether to issue or revoke a Section 214

authorization, the FCC considers “the public convenience and
necessity,” id. § 214(c), including the implications for
“national defense,” id. § 151. In conducting that inquiry, the
FCC assesses whether direct or indirect foreign ownership or
control of a transmission line raises national-security or
foreign-policy concerns. See Rules & Policies on Foreign
Participation in the U.S. Telecomm. Mkt., 12 FCC Rcd. 23891,
23918–21 (1997). The FCC consults with Executive Branch
agencies “to help assess national security and other concerns
that might arise from a carrier’s foreign ownership.” China
Telecom (Americas) Corp. v. FCC, 57 F.4th 256, 261 (D.C. Cir.
2022). Those “Executive Branch agencies may review existing
authorizations for national-security risks and recommend
revocation if the risks cannot be mitigated.” Id. at 262.

Notably, the FCC in recent years has exercised its Section

214 authority to deny or revoke transmission authorizations in
the case of U.S. entities subject to ultimate Chinese control.
The Commission’s rationale has mirrored Congress’s
motivation for the Act we consider in this case—i.e., national-
security concerns that the PRC could leverage its control over
foreign parent companies to require U.S. subsidiaries to
provide China with access to U.S. communications lines,
thereby enabling espionage and other harmful undertakings.
See Pac. Networks Corp. & ComNet (USA) LLC, 37 FCC Rcd.
4220 (2022); China Telecom (Americas) Corp., 36 FCC Rcd.
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5
15966 (2021); China Mobile Int’l (USA), 34 FCC Rcd. 3361
(2019). This court has affirmed those FCC decisions. See Pac.
Networks Corp. v. FCC, 77 F.4th 1160 (D.C. Cir. 2023); China
Telecom, 57 F.4th 256.

China Telecom, for example, involved a U.S. company

with a Section 214 authorization whose parent corporation was
majority-owned by a Chinese governmental entity. See 57
F.4th at 260, 265. The FCC’s revocation of China Telecom’s
authorization was “grounded [in] its conclusion that China
Telecom poses an unacceptable security risk” because “the
Chinese government is able to exert significant influence over
[it].” Id. at 265. In rejecting China Telecom’s claim that the
asserted national-security risk was unduly speculative, we
noted that Chinese law obligates Chinese companies “to
cooperate with state-directed cybersecurity supervision and
inspection,” and we cited “compelling evidence that the
Chinese government may use Chinese information technology
firms as vectors of espionage and sabotage.” Id. at 265–66.
We additionally explained that “[i]n the national security
context,” the FCC “need not wait for a risk to materialize
before revoking a section 214 authorization.” Id. at 266.

China Telecom is a present-day application of the kinds of

restrictions on foreign control that have existed in the
communications arena since the dawn of radio. That
longstanding regulatory history bears on the First Amendment
analysis here. See City of Austin, 596 U.S. at 75. That is so
even though some of that history arose in the context of
broadcast, a medium in which the Supreme Court has
“recognized special justifications for regulation.” Reno v. Am.
Civ. Liberties Union, 521 U.S. 844, 868 (1997). Some of the
relevant history also arose outside of broadcast (e.g.,
authorizations for wired transmission lines under Section 214),
and certain regulatory concerns are present to a far greater
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degree with modern communications media than with
traditional broadcast (e.g., the vastly enhanced potential for
collection of data from and about users).

To be sure, because communications media reaching mass

audiences in real time “were not present in the founding era,”
the regulatory history naturally does not date back that far. See
City of Austin, 596 U.S. at 75. But under the Supreme Court’s
decisions, regulatory history still matters so long as the relevant
kind of “regulation followed” on the heels of the emergence of
a new type of communication medium. Id. In fact, it can
matter for precisely the issue considered here: whether a First
Amendment challenge should be examined under strict or
intermediate scrutiny.

So, in City of Austin, the Supreme Court recently assessed

which of those standards should govern a challenge to a law
attaching different restrictions to off-premises and on-premises
signage. See id. at 67–69. The Court explained that
comparable regulations emerged relatively soon after outdoor
billboards first appeared in the 1800s. See id. at 65–66, 75. To
the Court, that “unbroken tradition of on-/off-premises
distinctions counsel[ed] against” subjecting the challenged law
to strict scrutiny. Id. at 75. If so there, so too here.

B.

In City of Austin, the Supreme Court considered the

longstanding regulatory history as part of its inquiry into
whether the law in question should be deemed content based or
content neutral. See 596 U.S. at 69–76. That distinction in turn
informs the standard of scrutiny. Under hornbook First
Amendment doctrine, content-based laws generally pose more
pronounced First Amendment concerns and so usually must
satisfy strict scrutiny. See Reed v. Town of Gilbert, 576 U.S.
155, 163–64 (2015); cf. City of Austin, 596 U.S. at 73 (noting
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7
that regulation of commercial speech has been subject to
intermediate scrutiny even when content based). Content-
neutral laws, on the other hand, present less substantial First
Amendment concerns and so generally trigger, at most,
intermediate scrutiny. See Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 642 (1994) (Turner I).

There can also be, though, an antecedent question:

whether the First Amendment applies at all. The question
arises here because the effect of the Act’s divestment mandate
falls most directly on foreign entities: the Act targets the PRC,
a foreign sovereign, and the divestment mechanism established
by Congress necessarily encompasses ByteDance, a foreign
company subject to the PRC’s control. That recognition brings
into play the settled understanding that “foreign organizations
operating abroad have no First Amendment rights.” Agency for
Int’l Dev. v. All. for Open Soc’y Int’l Inc., 591 U.S. 430, 436
(2020).

The Act requires TikTok to divest the corporate parent,

ByteDance, because ByteDance is subject to the PRC’s
control. ByteDance developed and maintains the source code
underlying TikTok’s recommendation engine, see Simkins
Decl. ¶¶ 52, 57, 90 (TikTok App. 738, 740, 751); Presser Decl.
¶¶ 63–64 (TikTok App. 832), so the company has the ability to
curate the content sent to TikTok users. That kind of curation
function, when the First Amendment applies, is protected
expressive activity. As the Supreme Court recently explained,
“presenting a curated compilation of speech originally created
by others” via a social media app is a form of
expression. Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2400
(2024); see id. at 2400–02. So, by forcing ByteDance to split
from TikTok, the Act abolishes the ability of ByteDance—and
ultimately the PRC, Congress’s true concern—to curate
content going to TikTok’s U.S. users.
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To the extent the PRC or ByteDance might wish to adjust
the content viewed by U.S. users of TikTok, those curation
decisions would be made abroad. See Milch Decl. ¶ 29
(TikTok App. 661) (explaining that TikTok’s proposed
security measures contemplate “continued reliance on
ByteDance engineers for . . . its recommendation engine”).
The PRC and ByteDance thus would lack any First
Amendment rights in connection with any such curation
actions. Agency for Int’l Dev., 591 U.S. at 436. That is true
even though the PRC or ByteDance, in that scenario, would
aim their curation decisions at the United States. The Supreme
Court’s decision in Agency for International Development
demonstrates the point.

That case involved foreign organizations’ speech that was

targeted in part at the United States, yet the Court still applied
the rule that the foreign speakers lack any First Amendment
rights when engaged in expressive activity abroad. The federal
statute challenged in Agency for International Development
required organizations receiving certain U.S. aid dollars to
espouse a policy opposing prostitution. Id. at 432. The Court
first held that the compelled adoption of an anti-prostitution
viewpoint violated the First Amendment as applied to U.S.
funding recipients. See Agency for Int’l Dev. v. All. for Open
Soc’y Int’l Inc., 570 U.S. 205, 214 (2013). But the Court later
rejected a parallel challenge brought by foreign funding
recipients, reasoning that foreign organizations lack any First
Amendment rights in connection with their expressive
activities abroad. Agency for Int’l Dev., 591 U.S. at 433–36.
And that was so even though the relevant speech act—the
mandated expression of opposition to prostitution—was aimed
in part at the United States: in fact, the way the funding
recipients demonstrated adherence to the funding condition
was to express opposition to prostitution in the “award
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9
documents” exchanged with the U.S. Agency for International
Development. See Agency for Int’l Dev, 570 U.S. at 210.

In short, while the Act’s divestment mandate directly

affects—and aims to eliminate—the ability of the PRC and
ByteDance to engage with U.S. users of a PRC-controlled
TikTok, it raises no First Amendment concerns vis-à-vis those
foreign actors.

C.

Even if ByteDance and the PRC lack First Amendment

rights to assert against the Act’s divestment mandate, what
about the U.S.-based petitioners’ free-speech claims? The
principal U.S. petitioners are: (i) TikTok Inc., the U.S.
subsidiary of ByteDance that provides the TikTok platform in
the United States; and (ii) U.S. TikTok users, who are both
creators and viewers of TikTok content.

1.

For TikTok Inc., the Act is designed to sever ByteDance

from the platform but leave untouched TikTok Inc.’s
expression on a post-divestment version of the app. TikTok
Inc. both creates and curates content on the platform, and the
Act does not restrict those speech and curation choices.
TikTok Inc. posts videos to its own TikTok account and would
remain fully free to continue doing so post-divestment. The
company can also engage in content moderation, including
through enforcement of community guidelines that excise
videos containing nudity, for instance. See Op., ante, at p. 27.
To the extent those choices are TikTok Inc.’s own, the
company could maintain the same editorial policies on a post-
divestment version of the app.
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TikTok also claims that TikTok Inc.’s deployment of the
platform’s recommendation engine in the U.S. is itself an
expressive decision. Even assuming so, after divestment, a
non-Chinese-controlled TikTok could still use the same
algorithm to promote the same exact mix of content presently
appearing on the app. According to TikTok, however, Chinese
law would prevent the export of the algorithm fueling the
recommendation engine without the PRC’s approval, which it
would not grant. TikTok Br. 24. The Act, though, would not
dictate that outcome. Rather, the PRC, backed by Chinese law,
would. And Congress of course need not legislate around
another country’s preferences to exercise its own powers
constitutionally—much less the preferences of a designated
foreign adversary, the very adversary whom Congress
determined poses the fundamental threat to national security
prompting the Act in the first place.

2.

The last group of petitioners bringing a First Amendment

claim are users who create and consume content on the TikTok
platform. They face the prospect of the app becoming
unavailable to them if a divestment does not occur within the
window allowed by Congress, or of an app potentially altered
in certain ways if a divestment were to take place.

A threshold question bearing significantly on the

assessment of their First Amendment challenge is which
standard of scrutiny should apply: strict or intermediate
scrutiny. The choice can be an important, potentially outcome-
determinative one, which is why the Supreme Court can devote
entire decisions to the issue. See, e.g., City of Austin, 596 U.S.
61. That choice here, as is often the case, turns in significant
measure on the rationale for the challenged law, which informs
whether the law is considered content based or content neutral.
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As my colleagues explain, the Act’s divestment mandate
rests on two justifications, both of which concern the PRC’s
ability (through its control over ByteDance) to exploit the
TikTok platform in ways inimical to U.S. national security.
See Op., ante, at p. 33. First, the PRC could harvest abundant
amounts of information about the 170 million U.S. app users
and potentially even their contacts. Second, the PRC could
direct the TikTok platform to covertly manipulate the content
flowing to U.S. users. To the government, a foreign
adversary’s ability to acquire sensitive information on
Americans and secretly shape the content fed to Americans
would pose a substantial threat to U.S. national security.

Those dual interests are manifested in the terms of the Act,

in its central provisions establishing the divestment
requirement. The Act defines a “qualified divestiture” as one
that removes any ongoing relationship with the foreign
adversary-controlled entities with which the app was
previously affiliated, including in particular “any cooperation
with respect to the operation of a content recommendation
algorithm or an agreement with respect to data sharing.”
§ 2(g)(6)(B) (emphasis added). In the central operative
provision of the Act, then, Congress established that a
divestiture must satisfy the two national-security concerns
invoked by the government in this case: data protection and
content manipulation.

An examination of those interests, separately and in

combination, shows that the Act does not raise the kinds of core
free-speech concerns warranting the application of strict
scrutiny. Instead, intermediate scrutiny should apply.
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a.

The data-protection rationale is plainly content neutral,

supporting the application of intermediate rather than strict
scrutiny. There is no sense in which the data-protection interest
relates to the content of speech appearing on TikTok. In fact,
the interest does not relate to speech at all, raising the question
whether it would even trigger intermediate scrutiny if it stood
alone.

In Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), for

instance, the Supreme Court considered a First Amendment
challenge to the proposed closure of a bookstore because
prostitution took place there. The Court declined to apply even
intermediate scrutiny. The Court explained that, while the First
Amendment claim arose from the establishment’s engagement
in the protected activity of selling books, that activity had
nothing to do with the reasons for the proposed closure. See id.
at 705. The Court analogized the circumstances to ones in
which a “city impose[s] closure penalties for demonstrated Fire
Code violations or health hazards from inadequate sewage
treatment.” Id. In such a situation, “the First Amendment
would not aid the owner of premises who had knowingly
allowed such violations to persist.” Id.

Here, similarly, the data-protection rationale has nothing

to do with the expressive activity taking place on the TikTok
platform. Any enterprise collecting vast amounts of data from
users, whatever its line of business, could pose that sort of risk.
That is not to diminish the burdens on millions of U.S. users if
the TikTok platform were to become unavailable to them as a
forum for expressive activity. All of them could be faced with
needing to find an alternate venue. The same was true, though,
of the bookstore patrons in Arcara, yet the Court still denied
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13
the First Amendment challenge to the bookstore’s closure
without even applying intermediate scrutiny.

To be sure, the Arcara Court observed that First

Amendment scrutiny would apply to a law that “inevitably
single[s] out bookstores or others engaged in First Amendment
protected activities for the imposition of its burden.” Id. Even
if that description has salience here—which is not at all clear—
the Court has explained that such a law may be “justified by
some special characteristic” of the regulated entities.
Minneapolis Star v. Minn. Comm’r of Rev., 460 U.S. 575, 585
(1983); Turner I, 512 U.S. at 660–61. The vast data-collection
practices of TikTok and similar applications subject to the Act
would seem to qualify as just such a “special characteristic.”

At any rate, there is no need to reach a firm conclusion on

whether the data-protection interest, if considered in isolation,
would trigger the application of intermediate scrutiny or
instead an even more relaxed form of review. That is because
the government makes no argument that the Act’s application
to TikTok should be sustained based on the data-protection
interest alone. It is necessary, then, to engage with the other
interest underpinning the Act, to which I turn next.

b.

Congress’s interest in preventing the PRC’s use of TikTok

to engage in covert content manipulation is self-evidently
connected to speech: it centers on the potential reactions of
American viewers to covert content-curation decisions made
by the PRC. Still, that interest does not raise heartland First
Amendment concerns about content-based restrictions for
reasons I will explain—so much so that, even if that interest
were the sole rationale for the Act, there would still be a strong
argument for applying intermediate rather than strict scrutiny.
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It is important to keep in mind, though, that Congress’s
covert-content-manipulation concern does not stand alone.
There is also its distinct data-protection interest that supports
applying (at most) intermediate scrutiny, along with the
consistent regulatory history of restricting foreign control of
mass communications channels that likewise weighs in favor
of intermediate scrutiny. So, the question ultimately is not
whether the covert-content-manipulation concern itself would
occasion applying strict scrutiny, but rather whether it so
strongly and clearly does that it overcomes the other important
considerations counseling against strict scrutiny. I believe it
does not.

First, even assuming the covert-content-manipulation

concern may bear the indicia of a content-based rationale, it
would do so only marginally. The Supreme Court has used
slightly varying formulations when describing what makes a
law content based, but this recent articulation captures the gist:
not just “any examination of speech or expression inherently”
makes a regulation content based; rather, “it is regulations that
discriminate based on ‘the topic discussed or the idea or
message expressed’ that are content based.” City of Austin, 596
U.S. at 73–74 (quoting Reed, 576 U.S. at 171); see Op., ante,
at p. 28.

Congress’s concern about the PRC’s capacity to conduct

covert content manipulation on the TikTok platform does not
“discriminate based on the topic discussed or the idea or
message expressed.” City of Austin, 596 U.S. at 73–74
(internal quotation marks omitted). Congress desires to
prevent the PRC’s secret curation of content flowing to U.S.
users regardless of the topic, idea, or message conveyed. See
Gov’t Br. 66–68. To be sure, Congress would have concerns
about the PRC covertly compelling ByteDance to flood the
feeds of American users with pro-China propaganda. But
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Congress would also have concerns about the PRC sowing
discord in the United States by promoting videos—perhaps
even primarily truthful ones—about a hot-button issue having
nothing to do with China. Indeed, because the concern is with
the PRC’s manipulation of the app to advance China’s
interests—not China’s views—one can imagine situations in
which it would even serve the PRC’s interests to augment anti-
China, pro-U.S. content. Suppose, for instance, the PRC
determines that it is in its interest to stir an impression of
elevated anti-China sentiment coming from the United
States—say, to conjure a justification for actions China would
like to take against the United States. That would qualify as
covert content manipulation of the kind that concerned
Congress and supports the Act’s divestment mandate.

Congress’s concern with covert content manipulation by a

foreign adversary in any direction and on any topic—rather
than on particular messages, subjects, or views—is evident in
the Act’s terms and design. See City of Renton v. Playtime
Theaters, Inc., 475 U.S. 41, 48 (1986); Turner I, 512 U.S. at
646–49, 652. Recall that the Act asks whether there is the
prospect of “any cooperation” with an entity controlled by a
foreign adversary “with respect to the operation of a content
recommendation algorithm.” § 2(g)(6)(B). The concern is a
general one about control of a “content recommendation
algorithm,” without regard to whether the content choices
enabled by that control might point in a specific direction or
involve a specific matter.

As is reflected in the title of the Act—“Protecting

Americans From Foreign Adversary Controlled Applications
Act”—Congress aimed not to address specific content but to
address specific actors: in particular, to prevent a “foreign
adversary” from exercising control over covered applications.
In that sense, the law operates in the nature of a speaker-based
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16
restriction. As applied here, what matters is whether a
particular potential curator, the PRC, has the ability to control
(covertly) the content fed to TikTok’s U.S. users, regardless of
what the content may be. True, “laws favoring some speakers
over others demand strict scrutiny” when the “speaker
preference reflects a content preference.” Reed, 576 U.S. at
171 (quoting Turner I, 512 U.S. at 658). But here, the speaker
(non)preference is not grounded in a content preference.

In certain respects, in fact, the Act resembles a time, place,

or manner regulation—a type of regulation generally subject to
intermediate scrutiny. Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984); Ward v. Rock Against
Racism, 491 U.S. 781, 791, 798–99 (1989). The Act restricts
only one way in which the Chinese government can project
information into the United States—the covert manipulation of
content on TikTok. The Act does not touch on the PRC’s
ability to communicate through any medium other than TikTok
(and potentially other “covered” applications, see
§ 2(g)(2)(A)). Indeed, as far as the Act is concerned, the PRC
would be free to publish its own videos—whether labeled as
such or camouflaged as cutout accounts—on a post-divestment
version of TikTok itself. So understood, the Act does not
prevent Americans from receiving any message from the PRC;
it only prevents the PRC from secretly manipulating the
content on a specific channel of communication that it
ultimately controls.

Those circumstances are far removed from Lamont v.

Postmaster General, 381 U.S. 301 (1965), on which petitioners
heavily rely. Lamont concerned a law requiring anyone in the
United States who desired to receive mail deemed by the
Secretary of the Treasury to be “communist political
propaganda” to affirmatively notify the Postal Service. Id. at
302–03. The Supreme Court invalidated the statute, resting its
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17
decision “on the narrow ground that the addressee in order to
receive his mail must request in writing that it be delivered.”
Id. at 307. That obligation amounted to “an unconstitutional
abridgement of the addressee’s First Amendment rights,”
because “any addressee is likely to feel some inhibition in
sending for literature which federal officials have condemned
as ‘communist political propaganda.’” Id.

This case does not involve the “narrow ground” on which

the Court rooted its decision in Lamont: an affirmative
obligation to out oneself to the government in order to receive
communications from a foreign country that are otherwise
permitted to be here. Moreover, whereas this case, as
explained, addresses what amounts to a speaker-based
regulation without a content preference underpinning it, the
law in Lamont drew a viewpoint-based distinction based on
whether the government deemed mailed material “communist
political propaganda.” Finally, Lamont was not a case about
covert content manipulation, the concern driving the Act’s
divestment mandate. In that regard, while counterspeech is an
available response in the case of a publication designated as
“communist political propaganda,” counterspeech is elusive in
response to covert (and thus presumably undetected)
manipulation of a social media platform.

* * *

For all those reasons, Congress’s concern with the PRC’s

potential exercise of covert content manipulation should not
give rise to strict scrutiny. That concern does not bear the
hallmarks of a content-based rationale; the Act’s other
justification concerning data protection is plainly a content-
neutral one; and there has been a long regulatory history of
restrictions on foreign control of mass communications
channels.
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D.

To satisfy intermediate scrutiny, a law needs to meet two

requirements: (i) the law must further “important” (or
“substantial” or “legitimate”) governmental interests; and (ii)
the means must be narrowly tailored to serve those interests.
See Turner I, 512 U.S. at 661–62; Ward, 491 U.S. at 791, 796,
798–99. Under strict scrutiny, by comparison: (i) the
governmental interests must be “compelling”; and (ii) the
means must be the least-restrictive way of serving them. E.g.,
McCullen v. Coakley, 573 U.S. 464, 478 (2014). As to the
second prong, the Supreme Court has explained that the
“narrow tailoring” test under intermediate scrutiny requires
less than the least-restrictive-means test under strict scrutiny,
with the former met “[s]o long as the means chosen are not
substantially broader than necessary to achieve the
government’s interest.” Ward, 491 U.S. at 800.

Here, the Act satisfies both prongs of the intermediate

scrutiny test.

1.

Recall that, as manifested in the Act’s terms and design,

see § 2(g)(6)(B), Congress mandated TikTok’s divestment in
order to prevent the PRC from capturing the personal data of
millions of Americans and surreptitiously manipulating the
content the app serves them. Each of those objectives qualifies
as an important governmental interest.

a.

The data-protection interest aims to protect U.S. national

security by depriving the PRC of access to a vast dataset of
granular information on 170 million Americans. Congress’s
interest is important and well grounded.
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As TikTok does not dispute, the platform collects vast
amounts of information from and about its American users.
See TikTok App. 820; Privacy Policy, TikTok (Aug. 28, 2024),
https://perma.cc/XE6G-F86Q. The government’s national-
security concerns about the PRC’s access to that data take two
forms. First, the PRC could exploit sensitive data on individual
Americans to undermine U.S. interests, including by recruiting
assets, identifying Americans involved in intelligence, and
pressuring and blackmailing our citizens to assist China.
Second, the vast information about Americans collected by
TikTok amounts to the type of “bulk” dataset that could
“greatly enhance” China’s development and use of “artificial
intelligence capabilities.” Vorndran Decl. ¶ 32 (Gov’t App.
37).

Those national-security concerns self-evidently qualify as

important. To be sure, the fears must be “real, not merely
conjectural.” Turner I, 512 U.S. at 664. And petitioners submit
that the government’s concerns about the PRC accessing user
data from the TikTok platform are unduly speculative and
insufficiently grounded. I cannot agree.

When applying intermediate scrutiny, a court “must

accord substantial deference to the predictive judgments of
Congress,” and “[o]ur sole obligation is to assure that, in
formulating its judgments, Congress has drawn reasonable
inferences based on substantial evidence.” Turner Broad. Sys.,
Inc. v. FCC, 520 U.S. 180, 195 (1997) (Turner II) (internal
quotation marks omitted). That bar is cleared here.

In evaluating whether Congress’s national-security

concerns are adequately grounded, we can take stock of the
Executive Branch’s elaborations as submitted in declarations.
See Humanitarian Law Project, 561 U.S. at 33. As my
colleagues set out, Op., ante, at pp. 34–36, and as the
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government explains, Congress’s data-security concern arises
against a backdrop of broadscale “overt and covert actions” by
the PRC “to undermine U.S. interests,” Blackburn Decl. ¶ 23
(Gov’t App. 8). Collecting data on Americans is a key part of
that multi-faceted strategy. See id. ¶¶ 31–33 (Gov’t App. 10–
11). The PRC has engaged in extensive efforts to amass data
on Americans for potential use against U.S. interests. Id. ¶ 31
(Gov’t App. 10–11). And the PRC “is rapidly expanding and
improving its artificial intelligence and data analytics
capabilities for intelligence purposes,” enabling it to exploit
access to large datasets in increasingly concerning ways. Id.
¶ 30 (Gov’t App. 10).

“ByteDance and TikTok present powerful platforms” for

those purposes. Id. ¶ 36 (Gov’t App. 13). It is a modus
operandi of the PRC to surreptitiously access data through its
control over companies like ByteDance. While the PRC has
sometimes obtained data through aggressive hacking
operations, it also attempts to do so by “leverag[ing] access
through its relationships with Chinese companies.” Id. ¶ 33
(Gov’t App. 11). Even if the PRC has yet to discernibly act on
its potential control over ByteDance’s access to data on
American users in particular, Congress did not need to wait for
the risk to become realized and the damage to be done before
taking action to avert it. See Humanitarian Law Project, 561
U.S. at 34–35; China Telecom, 57 F.4th at 266–67. That is
particularly so in light of the PRC’s broader, long-term
geopolitical strategy of pre-positioning assets for potential use
against U.S. interests at pivotal moments. See Vorndran Decl.
¶ 12 (Gov’t App. 34); Blackburn Decl. ¶ 26 (Gov’t App. 9).

In these circumstances, in short, Congress’s data-

protection concern is hardly speculative or inadequately
grounded in this murky corner of national security.
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b.

The same is true of Congress’s concern about the PRC’s

covert content manipulation. Our duty to accord deference to
Congress’s determinations when applying intermediate
scrutiny, Turner II, 520 U.S. at 195, is all the more important
in the area of national security. Like its data-protection
concern, Congress’s content-manipulation concern “arise[s] in
connection with efforts to confront evolving threats in an area
where information can be difficult to obtain and the impact of
certain conduct difficult to assess.” Humanitarian Law
Project, 561 U.S. at 34. In matters of national security,
Congress must often rely on its—and the Executive Branch’s—
“informed judgment rather than concrete evidence.” Id. at 34–
35. And “[t]hat reality affects what we may reasonably insist
on from the Government.” Id. at 35. The government’s
“evaluation of the facts” is “entitled to deference.” Id. at 33.

As the government details and petitioners do not dispute,

the PRC engages in an aggressive, global campaign of
influence operations against U.S. interests, relying heavily on
the internet and social-media platforms. Blackburn Decl.
¶¶ 28–29 (Gov’t App. 9–10). Across the globe, the PRC seeks
to “promote PRC narratives . . . and counter other countries’
policies that threaten the PRC’s interests.” Id. ¶ 29 (Gov’t App.
10). That includes increasingly pronounced efforts to “mold”
America’s “public discourse” and “magnify” our “societal
divisions.” Id.

It was reasonable for Congress to infer from the

information available to it that, if directed by the PRC to assist
in those efforts, ByteDance and TikTok “would try to comply.”
Id. ¶ 69 (Gov’t App. 23). The government points to examples
of when “the PRC has exerted control over the content shown
on other ByteDance-managed apps.” Vorndran Decl. ¶ 33
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22
(Gov’t App. 38). And were the PRC to exert that kind of covert
control over the content on TikTok, it would be “difficult—if
not impossible—to detect, both by TikTok users and by law
enforcement personnel.” Id. ¶ 34 (Gov’t App. 38). In that
context, Congress’s concern with preventing the PRC’s covert
content manipulation of the platform readily qualifies as an
important, well-founded governmental interest.

In resisting that conclusion, petitioners contend that the

covert-content-manipulation rationale cannot be an important
governmental interest because it is “related to the suppression
of free expression.” NetChoice, 144 S. Ct. at 2407. Petitioners
are mistaken.

As an initial matter, insofar as petitioners believe that a law

can never satisfy First Amendment scrutiny if it is “related to
the suppression of free expression,” that is incorrect. The
consequence of a law’s being deemed “related to the
suppression of expression” is not that the law is then per se
invalid, but instead that it is then subject to strict rather than
intermediate scrutiny. See Humanitarian Law Project, 561
U.S. at 28 (citing Texas v. Johnson, 491 U.S. 397, 403 (1989)).
In this case, for all the reasons previously explained, the Act’s
divestment mandate is more appropriately assessed under
intermediate scrutiny than strict scrutiny.

That conclusion is fully consistent with NetChoice, as the

laws at issue there were “related to the suppression of
expression” in a way untrue of the Act. In NetChoice, two
states enacted laws addressing perceived bias against
conservative viewpoints on large social-media platforms like
YouTube and Facebook. 144 S. Ct. at 2394. The laws
restricted the platforms’ ability to remove, label, or deprioritize
posts or users based on content or viewpoint. Id. at 2395–96.
The laws did so, the Supreme Court explained, in pursuit of an
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objective “to correct the mix of speech that the major social-
media platforms present,” so as “to advance [the states’] own
vision of ideological balance.” Id. at 2407. The Court
explained that such an interest “is very much related to the
suppression of free expression, and it is not valid, let alone
substantial.” Id. (citing Buckley v. Valeo, 424 U.S. 1, 48–49
(1976) (per curiam)).

Here, by contrast, the Act is not grounded in any

congressional aim to correct a perceived viewpoint imbalance
on the TikTok platform by achieving a different ideological
mix. Congress, as discussed, did not seek to prevent covert
content manipulation by the PRC in furtherance of any
overarching objective of suppressing (or elevating) certain
viewpoints, messages, or content. Supra pp. 14–16. Instead,
Congress’s objective was to protect our national security from
the clandestine influence operations of a designated foreign
adversary, regardless of the possible implications for the mix
of views that may appear on the platform.

While that alone sets this case apart from NetChoice, see
144 S. Ct. at 2408 n.10, it also bears emphasis that the laws at
issue in NetChoice did not serve a distinct interest entirely
unrelated to the suppression of free expression. Here, on the
other hand, the Act rests in significant measure on Congress’s
data-protection interest, an interest indisputably having no
relation to the suppression of speech. For that reason as well,
NetChoice poses no obstacle to concluding that the Act serves
important governmental interests for purposes of intermediate
scrutiny.

2.

The Act’s divestment mandate is narrowly tailored to

achieve Congress’s important national-security interests in
preventing the PRC from accessing U.S. TikTok users’ data
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and covertly manipulating content on the platform. The Act
will bring about the severing of PRC control of the TikTok
platform in the United States, either through a divestment of
that control, or, if no qualifying divestment takes place, through
a prohibition on hosting or distributing a still-PRC-controlled
TikTok in the United States until a qualifying divestment
occurs. The divestment mandate is “not substantially broader
than necessary to achieve” Congress’s national-security
objectives. Ward, 491 U.S. at 800.

Congress confined the Act to applications subject to the

control of just four designated foreign adversary countries,
including China. § 2(g)(4); see 10 U.S.C. § 4872(d)(2). As
applied here, the divestment mandate is fashioned to permit the
TikTok platform—including its recommendation engine—to
continue operating in the United States. Supra p. 10. Insofar
as the PRC’s (or ByteDance’s) own decisions may prevent that
from happening, the independent decisions of those foreign
actors cannot render Congress’s chosen means substantially
overbroad.

TikTok submits that various alternate means—including

its proposed National Security Agreement (NSA), see Op.,
ante, at pp. 13–15—would equally fulfill Congress’s aims
without giving rise to the prospect of the platform’s suspended
operations in the United States. But even if we thought that
were true, it would not help TikTok under intermediate
scrutiny: under that standard, “[s]o long as the means chosen
are not substantially broader than necessary,” a law “will not
be invalid simply because a court concludes that the
government’s interest could be adequately served by some less-
speech-restrictive alternative.” Ward, 491 U.S. at 800; see
Turner II, 520 U.S. at 217–18. A court instead must “defer to
[Congress’s] reasonable determination” of how “its
interest[s] . . . would be best served.” Ward, 491 U.S. at 800.
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Here, Congress reasonably determined that attaining the
requisite degree of protection required mandating a divestment
of PRC control. A “disagreement over the level of
protection . . . to be afforded and how protection is to be
attained” does not constitute a basis for “displac[ing] Congress’
judgment” when applying intermediate scrutiny. Turner II,
520 U.S. at 224. And Congress’s resolution here is in line with
other situations in which national-security concerns can call for
divestment of a foreign country’s control over a U.S. company.
See 50 U.S.C. § 4565(d)(1); H.R. Rep. No. 118-417, at 5–6 &
n.26.

Nor could TikTok succeed under intermediate scrutiny by

pointing to evidence that, in its view, contradicts Congress’s
determination that nothing shy of divestment would be
sufficient. TikTok argues, for instance, that in concluding the
NSA was an inadequate alternative, the government
misunderstood certain aspects of its design and operation—
e.g., how difficult it would be to review TikTok’s source code.
“[R]egardless of whether the evidence is in conflict” on such
matters, a court can still sustain a challenged law when
applying intermediate scrutiny. Turner II, 520 U.S. at 211.
That is because “the relevant inquiry” under that standard is
“not whether Congress, as an objective matter, was correct to
determine [its chosen means are] necessary” to meet its
objectives. Id.; see id. at 196. “Rather, the question is whether
the legislative conclusion was reasonable and supported by
substantial evidence in the record before Congress.” Id. at 211
(emphasis added). It was here.

The Executive Branch believed, and specifically advised

Congress, that measures short of divestment would not
adequately protect against the risks to national security posed
by the PRC’s potential control of the TikTok platform. See
Newman Decl. ¶ 7 (Gov’t App. 47); Redacted Hearing Tr. 11–
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14. With specific regard to the provisions contained in the
proposed NSA, “senior Executive Branch officials concluded
that the terms of ByteDance’s final proposal would not
sufficiently ameliorate those risks.” Newman Decl. ¶ 6 (Gov’t
App. 46). The provisions, in the Executive Branch’s view,
“still permitted certain data of U.S. users to flow to China, still
permitted ByteDance executives to exert leadership control and
direction over TikTok’s US operations, and still contemplated
extensive contacts between the executives responsible for the
TikTok U.S. platform and ByteDance leadership overseas.” Id.
¶ 75 (Gov’t App. 62). And, the Executive Branch assessed, the
NSA “would have ultimately relied on . . . trusting ByteDance”
to comply, but “the requisite trust did not exist.” Id. ¶¶ 75, 86
(Gov’t App. 62, 68).

Those concerns about the kinds of provisions in the NSA

and the overarching lack of trust were discussed with Congress.
See Redacted Hearing Tr. 10–12, 40–42, 49–50. Congress’s
reliance on those Executive Branch conclusions, even if they
are now disputed by TikTok, means its “legislative conclusion
was . . . supported by substantial evidence in the record before
[it].” Turner II, 520 U.S. at 211; see id. at 198–99 (relying on
conflicted testimony before Congress).

* * * * *

While the court today decides that the Act’s divestment

mandate survives a First Amendment challenge, that is not
without regard for the significant interests at stake on all sides.
Some 170 million Americans use TikTok to create and view all
sorts of free expression and engage with one another and the
world. And yet, in part precisely because of the platform’s
expansive reach, Congress and multiple Presidents determined
that divesting it from the PRC’s control is essential to protect
our national security.
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To give effect to those competing interests, Congress
chose divestment as a means of paring away the PRC’s
control—and thus containing the security threat—while
maintaining the app and its algorithm for American users. But
if no qualifying divestment occurs—including because of the
PRC’s or ByteDance’s unwillingness—many Americans may
lose access to an outlet for expression, a source of community,
and even a means of income.

Congress judged it necessary to assume that risk given the

grave national-security threats it perceived. And because the
record reflects that Congress’s decision was considered,
consistent with longstanding regulatory practice, and devoid of
an institutional aim to suppress particular messages or ideas,
we are not in a position to set it aside.