122 F.4th 930
D.C. Cir.2024Background
- Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act) to address national‑security risks from apps operated or controlled by foreign adversaries; TikTok (ByteDance) was named specifically and the Act’s prohibitions as to TikTok take effect Jan. 19, 2025 unless a qualified divestiture occurs.
- The Act forbids U.S. distribution/hosting of a “foreign adversary controlled application” and contains a divestiture exemption if the President determines a sale removes foreign‑adversary control and operational ties (including recommendation algorithm cooperation and data sharing).
- Petitioners (ByteDance/TikTok, two user groups including creators) brought consolidated pre‑enforcement constitutional challenges seeking injunctive and declaratory relief; the D.C. Circuit has original jurisdiction under the Act.
- The government submitted classified and unclassified evidence showing multi‑year Executive/CFIUS concerns about PRC access to data and the risk of covert content manipulation; TikTok proposed a negotiated National Security Agreement (NSA) that the Executive found insufficient.
- The court held TikTok has Article III standing and ripe claims as to the TikTok‑specific provisions that will imminently take effect, but not as to the Act’s generally applicable track absent a presidential determination.
- On the merits the court rejected petitioners’ claims under the First Amendment, Equal Protection, Bill of Attainder Clause, and Takings Clause, and denied alternative relief requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Ripeness | TikTok: immediate injury from market/support cutoff; pre‑enforcement relief warranted | Gov: only TikTok‑specific provisions are ripe; general track requires future presidential steps | Court: TikTok has standing and ripeness to challenge TikTok‑specific provisions; not ripe as to general track |
| First Amendment — level of scrutiny | TikTok: strict scrutiny required because law singles out speaker and implicates content | Gov: statute content‑neutral or at most intermediate; even under strict scrutiny government prevails | Court: assumed strict scrutiny (but concurrence would apply intermediate); upheld Act as satisfying heightened scrutiny on recorded national‑security justifications |
| Narrow tailoring / less‑restrictive alternatives | TikTok: proposed NSA and other measures are viable, less restrictive | Gov: NSA and alternatives insufficient to mitigate data access and covert‑manipulation risks; divestiture is necessary | Court: divestiture requirement is narrowly tailored; alternatives would not equally or almost equally serve compelling interests |
| Equal Protection | TikTok: singled out by name, treated differently from other platforms | Gov: differential treatment justified by specific national‑security risks and prior Executive/CFIUS process | Court: differential treatment furthers legitimate government interest; no equal protection violation |
| Bill of Attainder | TikTok: Act punishes company (bars business) and thus is a legislative punishment | Gov: Act regulates line of business and leaves open divestiture; not punitive | Court: not a bill of attainder under historical, functional, or motivational tests; divestiture is sale not confiscation |
| Takings Clause | TikTok: Act effects total deprivation of economically beneficial use (platform dead) constituting per se taking | Gov: Act permits divestiture; assets retain value; not a complete deprivation | Court: no per se taking—divestiture option and remaining assets defeat complete‑deprivation claim |
Key Cases Cited
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (intermediate scrutiny standard for content‑neutral regulations of expressive platforms)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (definition and tests for content‑based regulation)
- City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61 (2022) (when historical regulatory tradition informs scrutiny choice)
- Humanitarian Law Project v. Holder, 561 U.S. 1 (2010) (deference to government judgments in national‑security speech contexts)
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (regulatory takings framework)
- Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) (physical‑invasion takings doctrine)
- NetChoice, LLC v. Moody, 144 S. Ct. 2383 (2024) (social‑media curation is speech and state action constraints implicate First Amendment)
- China Telecom (Americas) Corp. v. FCC, 57 F.4th 256 (D.C. Cir. 2022) (deference to national‑security judgments re: PRC control of communications infrastructure)
- Pacific Networks Corp. v. FCC, 77 F.4th 1160 (D.C. Cir. 2023) (upholding revocation of authorizations where PRC control posed security risk)
- Kaspersky Lab, Inc. v. DHS, 909 F.3d 446 (D.C. Cir. 2018) (Bill of Attainder and corporate‑actor treatment analysis)
- BellSouth Corp. v. FCC, 144 F.3d 58 (D.C. Cir. 1998) (restrictions on business combinations and First Amendment/equal protection context)
- Lamont v. Postmaster Gen., 381 U.S. 301 (1965) (prior restraint/compelled disclosure concerns under First Amendment)