Legal Analysis of TikTok Inc. v. Garland (2025): Constitutional Challenges and the Future of Digital Governance

Introduction

The Supreme Court's decision in TikTok Inc. v. Garland (2025) presents a critical inflection point in First Amendment jurisprudence, national security, and the governance of digital platforms. The case revolves around the Protecting Americans from Foreign Adversary Controlled Applications Act ("the Act"), which seeks to address concerns about data security and foreign influence by banning certain applications unless ownership is severed from foreign adversaries. While the Court upheld the Act under intermediate scrutiny, the ruling raises profound questions about the scope of constitutional protections, the intersection of technology and sovereignty, and the balancing of free expression against national security.

Case Overview

The Act makes it unlawful for entities to provide services for "foreign adversary-controlled applications" unless there is a qualified divestiture ensuring no foreign influence. TikTok, with its massive U.S. user base and ties to ByteDance Ltd., a Chinese company subject to Chinese intelligence laws, was designated as such an application. TikTok and a group of creators challenged the law, arguing that it infringed upon their First Amendment rights to expression and association.

The Court granted certiorari and upheld the Act, reasoning that the government’s interests in preventing foreign adversary access to sensitive data justified the restrictions. However, the judgment's nuances, including the treatment of First Amendment scrutiny and the law’s national security rationale, warrant further exploration.

Key Legal Issues and Analysis

1. First Amendment Framework: Content Neutrality and Scrutiny

The Court assumed, without deciding, that the Act triggered First Amendment scrutiny because of its disproportionate burden on expressive activity. Petitioners argued that the Act effectively banned TikTok, impacting users' rights to access information, associate, and generate content.

• Content Neutrality: The majority found the Act content-neutral, emphasizing its focus on data security and foreign adversary control rather than the platform's expressive content. This distinction shielded the Act from strict scrutiny, instead subjecting it to intermediate scrutiny, requiring that the law serve an important governmental interest and not burden substantially more speech than necessary.
• Intermediate Scrutiny Analysis: The Court upheld the Act, finding that the government’s interest in preventing data collection and espionage was compelling. The narrowly tailored divestiture requirement ensured the law targeted only platforms under foreign adversary control.

2. Data Sovereignty and National Security

The Court framed the Act as a response to China's expansive data-gathering capabilities. TikTok’s data practices, including access to detailed user information, were deemed a substantial risk. The Court deferred to Congress's findings, emphasizing the predictive judgment inherent in national security legislation. Justice Gorsuch, in concurrence, stressed the unique threats posed by foreign adversaries’ access to sensitive U.S. data, justifying the law's stringent measures.

3. Regulatory Overreach and Precedential Concerns

The decision raises concerns about the broader implications of allowing Congress to regulate platforms with foreign ties. Critics argue that labeling an application as a "foreign adversary-controlled" entity could set a precedent for similar laws targeting other platforms or technologies, potentially leading to overreach and chilling effects on free expression.

Questions of Law and Implications

The ruling prompts significant legal and policy questions:

What Constitutes Content Neutrality in the Digital Age? The Court’s reliance on the Act’s data-security justification avoided strict scrutiny. However, dissenting opinions could argue that targeting specific platforms inherently reflects a content preference, given their unique role in speech dissemination. Future cases may need to refine when government action targeting platforms’ operations crosses into content-based regulation.

How Should Courts Balance Predictive National Security Judgments with Individual Rights? The Court deferred heavily to Congress’s predictive judgments about national security. This approach may embolden legislative bodies to justify broad restrictions under the guise of security concerns. How courts navigate this deference while ensuring robust protection for constitutional rights will remain a contentious issue.

Does the Act Set a Precedent for Expanding Governmental Authority Over Private Platforms? The Act’s framework for regulating foreign adversary-controlled entities could serve as a model for future legislation targeting private platforms. This raises concerns about the potential misuse of such laws to suppress competition or restrict foreign entities without clear evidence of harm.

How Should Divestiture Requirements Be Implemented Without Violating Free Expression? The divestiture requirement effectively forces platforms to sever foreign ties (where there is an adversarial classification under US national interest), which can significantly impact their operations and users’ access to information. Balancing this requirement with First Amendment protections will likely require further judicial refinement.

What Are the Broader Implications for Global Internet Governance? The Act’s targeting of a foreign-controlled platform highlights the growing trend of digital sovereignty, where nations regulate online platforms based on their geopolitical interests. This trend may fragment the internet, creating distinct spheres of influence based on national security concerns.

Diverging Opinions

Concurring Opinions

Justice Sotomayor concurred with the judgment but underscored that the Act clearly implicated First Amendment rights, given TikTok’s role in curating and disseminating user content. She highlighted that the divestiture requirement directly impacted expressive activities, warranting heightened scrutiny.

Justice Gorsuch, while concurring in the judgment, raised concerns about the Court’s deference to classified evidence and the potential overreach of predictive judgments in national security cases. He also questioned whether the Act was genuinely content-neutral, emphasising the need for clarity in analyzing mixed-motive justifications.

Dissenting Opinions

Although not included in the judgment, potential dissenters might argue that the Act disproportionately burdens expressive activity and reflects a discriminatory preference against certain speakers, warranting strict scrutiny. They might also contend that the law is overly broad and risks stifling innovation and competition.

Policy Implications and Future Directions

The decision reinforces the government’s authority to regulate digital platforms in the name of national security. However, it also sets a high bar for legislative clarity and tailoring in such regulations. Policymakers must balance these measures with safeguards against overreach to avoid chilling effects on speech and innovation.

Furthermore, the ruling underscores the need for international collaboration on data security and digital governance. A fragmented internet, governed by nationalistic policies, could undermine global connectivity and cooperation, exacerbating tensions among major powers.

Conclusion

TikTok Inc. v. Garland is an important decision in today's technology-driven jurisprudence that reflects the complexities of applying constitutional principles to emerging technologies and national security challenges. While the Court upheld the Act, the questions it raises about First Amendment protections, regulatory overreach, and the future of internet governance will reverberate in courts and policymaking for years. As nations grapple with the dual imperatives of security and openness, this decision serves as a reminder of the delicate balance required in preserving democratic values in a digital age.

Writer:

Desmond Israel Esq.

Lawyer | Data Privacy/Information Security Practitioner

Founder, Information Security Architects Ltd (Rapid 7 Gold Partner), Accra - Ghana

Lecturer (Ghana Institute of Management and Public Administration) Law School

Non-Executive Director (Zerone AnalytiQs, British Columbia, Canada)

Technology Policy Researcher (AI, Cybersecurity, Global Data Privacy, Metaverse, Blockchain)