January 22, 2025

TikTok v. Garland and Free Speech Coalition v. Paxton


This month, the Supreme Court heard oral arguments in two First Amendment cases that could have significant ramifications for free speech on the internet. TikTok v. Garland, an emergency application challenging the federal law that would ban the social media company, was heard on January 10 and a decision was released last Friday. On January 15, the Court heard arguments in Free Speech Coalition v. Paxton, a challenge to Texas’s age verification law for websites that host pornographic content. At the core of both of these cases, and nearly all freedom of speech cases, is to what extent the government can regulate speech, or speakers, it finds objectionable. The novelty presented in both cases comes from the technological advances that have occurred since the most relevant precedent available to the justices.

What You Need to Know

  • Background and Procedural History of TikTok v. Garland: On April 24, 2024, President Biden signed into law the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which effectively bans TikTok explicitly and any other app designated as a “foreign adversary controlled application” from operating within the United States unless the foreign parent company divest ownership within approximately 9 months of the designation. TikTok and its Chinese-owned parent company, ByteDance, as well as individual TikTok content creators, and a conservative nonprofit brought a pre-enforcement challenge to the law and sought a declaratory judgment that PAFACA violates the First and Fifth Amendments. Those challenges were consolidated and heard by the D.C. Circuit Court. On December 6, 2024, the D.C. Circuit Court rejected their constitutional claims and held that while PAFACA “implicates the First Amendment and is subject to heightened scrutiny,” the act serves the compelling government interest to “protect [free speech] from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States.” TikTok filed an emergency application for injunction pending Supreme Court Review, which the Court treated as a writ of certiorari and granted with expedited briefing. The TikTok sell-by date was January 19.
  • Background and Procedural History of Free Speech Coalition v. Paxton: On June 12, 2023, Texas Governor Greg Abbott signed into law HB 1181, which requires any website that hosts content that is “harmful to minors” to follow certain requirements, including verification of age before providing access to that content. A group including Free Speech Coalition, an adult industry trade association, brought a facial challenge to the law in the Western District of Texas and their motion for a preliminary injunction was granted a day before the law was to go into effect. Texas filed an emergency appeal with the Fifth Circuit which overruled the district court as it pertained to the age verification requirement and upheld that provision of the law.
  • Questions Before the Court: While the issue at hand in the TikTok case was whether PAFACA violated the First Amendment, the question before the Court in the Free Speech Coalition case is one of appropriate scrutiny to be applied in determining whether there was a First Amendment violation – namely, whether the Fifth Circuit erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech.
  • What Happened at the Oral Argument: In TikTok, the question of whether PAFACA even regulated speech dominated the time spent by the Court in hearing this expedited case. Advocates from each side faced tough questions, with Solicitor General Prelogar facing skepticism over the government’s claim that it has an interest in combatting “covert content manipulation” that doesn’t trigger heightened scrutiny, but the higher climb seemed to belong to TikTok and the cohort of content creators challenging the law. Justices from across the ideological divide seemed to accept the national security interest asserted by the government and appeared unconvinced by the argument that TikTok as a wholly owned, US-based subsidiary had a constitutionally protected free speech interest in using ByteDance’s algorithm.In Free Speech Coalition, the Justices explored the applicability of the Court’s 2003 ruling in Ashcroft v. ACLU and a 1968 ruling in Ginsburg v. New        York, the latter of which the Fifth Circuit heavily relied on in its decision to apply rational basis scrutiny to the age verification section of the Texas law. The Justices spent a significant amount of time exploring the ways in which technology has advanced—with the invention and proliferation of smartphones since Ashcroft and the entire life of the internet since Ginsburg—and has complicated the question of protecting minor children from adult material without impermissibly chilling access for adults. Keen court observers were varied in their readings of the Justices’ likely path. Several Justices seemed to entertain a specially formulated version of strict scrutiny but it was unclear the boundaries or specifics of such a test should a majority agree.
  • Potential Impact: On January 17, two days before the ban was set to go into effect, the Court denied TikTok’s appeal. The Court “assume[d] without deciding that the challenged provisions  . . . are subject to First Amendment scrutiny” but that that ban was “facially content neutral and [ ] justified by a content-neutral rationale.” The Court accepted the government’s justification that the ban was necessary to prevent sensitive data from the more than 170 million used of TikTok in America from being accessed by a foreign adversary. The Court was quick to note that its decision is this case should be read narrowly, stating that “TikTok scale and susceptibil­ity to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differ­ential treatment to address the Government’s national se­curity concerns.” Ahead of the deadline, TikTok creators had taken to the platform to express their displeasure with the looming ban and that anger has led millions of Americans to join the Chinese social media app RedNote and similar apps. Politicians from both parties who publicly supported a ban before the law was set to take effect signaled a desire to prevent or delay the ban from taking effect. On January 19, the day before Trump was set to take the oath of office, the ban took effect but just hours later the app was again available with an announcement that “As a result of President Trump’s efforts, TikTok is back in the U.S.!” After assuming office, President Trump signed an executive order pausing the ban for 75 days and purporting to provide immunity for any company that works with TikTok in violation of PAFACA.

    Meanwhile, should the Court deny the petitioners in Free Speech Coalition, age verification on websites hosting content that the state of Texas determines is harmful to minors will be allowed to go into effect. This will inevitably lead to future litigation over what content is considered by the state to be harmful to minors at a time when key state actors actively oppose access to gender-affirming care for minors, to take one example.  Additionally, the protection of the anonymity of speech will be corroded, as amici in the case point out, which could have spillover effects into other forms of online speech.