Chief Judge Srinivasan’s “Alternate Path” to Upholding the TikTok Divestiture Mandate Against First Amendment Challenge

Here are some excerpts from Chief Judge Srinivasan’s opinion concurring in the judgment as to the First Amendment inquiry in Tiktok, Inc. v. Garland. First, Judge Srinivasan stresses the history of restrictions on foreign ownership of electronic communications media:

[C]oncerns 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.

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. 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.

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

Section 310 continues to restrict foreign control of radio licenses, including ones used for broadcast communication and wireless cellular services. And while that provision regulates wireless licenses, limitations on foreign control also exist for wired transmission lines under Section 214 of the same law.

When deciding whether to issue or revoke a Section 214 authorization, the FCC considers “the public convenience and necessity,” including the implications for “national defense.” 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…. 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…. This court has affirmed those FCC decisions….

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. 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. In fact, it can matter for precisely the issue considered here: whether a First Amendment challenge should be examined under strict or intermediate scrutiny….

Judge Srinivasan also reasons that “foreign organizations operating abroad have no First Amendment rights,” quoting Agency for Int’l Dev. v. All. for Open Soc’y Int’l Inc. (2020), and that “[t]o 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.” He acknowledges that TikTok Inc. is a U.S.-based subsidiary, and thus has First Amendment rights, but reasons that “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.”

He recognizes, though, that the divestment mandate potentially implicates the First Amendment rights of American TikTok content creators and consumers, who “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.” But he agrees with the panel majority that the concerns about the Chinese government “harvest[ing] abundant amounts of information about the 170 million U.S. app users and potentially even their contacts” and “direct[ing] the TikTok platform to covertly manipulate the content flowing to U.S. users” suffice to justify the divestment mandate.

In particular, he concludes that the law is subject to intermediate scrutiny. “The data-protection rationale is plainly content neutral, supporting the application of intermediate rather than strict scrutiny.” And, though “Congress’s interest in preventing the PRC’s use of TikTok to engage in covert content manipulation is self-evidently connected to speech,” it “does not raise heartland First Amendment concerns about content-based restrictions”:

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.” Congress desires to prevent the PRC’s secret curation of content flowing to U.S. users regardless of the topic, idea, or message conveyed.

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 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 antiChina, 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….

Those circumstances are far removed from Lamont v. Postmaster General (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. The Supreme Court invalidated the statute, resting its decision “on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered.” 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.’”

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.

He closes thus:

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.

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.

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