Could the SCOTUS TikTok Ban Decision Affect Future Free Speech Claims?

This article was originally published in expanded form by the American Bar Association’s Forum on Communications Law in the Spring 2025 issue of Communications Lawyer. 

The U.S. Supreme Court upheld Congress’ law banning TikTok in the United States unless its Chinese parent company, ByteDance Ltd., divests ownership. The January decision sparked significant public debate, but little focused on how this case could affect First Amendment claims moving forward.

ByteDance, TikTok, and a group of U.S. TikTok users and content creators argued that the ban violated their First Amendment rights. The Supreme Court disagreed, but it left a fundamental question in First Amendment litigation unaddressed. It did not provide an in-depth discussion on who the relevant “speakers” were in the case and whether there was a “right to receive” the information in the social media context.

What does this ruling mean for First Amendment claims? It ties into several unsettled issues that those pursuing and defending free speech claims should be aware of, including what happens when foreign entities are involved, when the speech at issue exists only on social media, when the speakers are individuals as opposed to governments, and when the audience may have a right to receive the information.

A Fundamental Question Left Unanswered

The Supreme Court sidestepped a crucial question in its ruling: Is the First Amendment implicated? It “assume[d] without deciding” that the law was subject to First Amendment scrutiny. This assumption allowed the Supreme Court to unanimously conclude that the law withstood intermediate scrutiny under its First Amendment jurisprudence.

The justices did distinguish between laws governing corporate ownership abroad and those regulating expressive conduct. This leaves open a question of whether the government can adopt laws that would not survive First Amendment scrutiny as long as those laws only target foreign adversarial governments.

Although the decision was unanimous, Justice Sonia Sotomayor’s concurrence highlighted a division within the Supreme Court. She agreed that the law withstood intermediate scrutiny but argued there was no need to “assume” its applicability to the First Amendment. In her view, the law clearly “implicate[d] the First Amendment because” it restricts entities “from distributing TikTok’s speech in the United States” and affects content creators’ “right to associate” with their preferred publisher “for the purpose of speaking.”

The majority opinion disagreed. The majority reasoned that the law “does not regulate the creator petitioners at all” and affects only ByteDance and TikTok “through the divestiture requirement.”

During oral arguments, justices across the ideological spectrum questioned whether the law truly concerned content creators’ “expression” or was primarily about national security concerns over data collection by a foreign corporation.

Are You a First Amendment Speaker and Is Your Speech Protected?

TikTok v. Garland underscores an emerging divide over when First Amendment scrutiny should apply. It’s a good reminder that before a court can consider the merits of a free speech claim under heightened scrutiny, the plaintiff must show that the First Amendment protects the speech at issue. In TikTok v. Garland, the majority cast doubt on the First Amendment protections claimed by various purported “speakers.”

Foreign Entities

The Supreme Court first questioned whether ByteDance, a foreign-controlled and operated entity, had any First Amendment rights. Drawing on Agency for International Development v. Alliance for Open Society International Inc., the Supreme Court reiterated that “[f]oreign organizations operating abroad have no First Amendment rights.”

In Agency for International Development, a group of U.S. companies argued that any compelled speech imposed on their foreign affiliates might be wrongly attributed to the American organizations, thus infringing on the foreign companies’ First Amendment rights.

The Supreme Court rejected that argument, noting that the domestic entities voluntarily chose to affiliate with foreign entities. More importantly, these foreign organizations operating abroad “do not possess rights under the U.S. Constitution.”

Social Media and Content Moderation

TikTok v. Garland also implicates how the First Amendment interacts with U.S.-based social media companies and their content creators. The Supreme Court recently addressed this interplay in Moody v. NetChoice, LLC. It ruled that laws restricting “platforms’ selection, ordering, and labeling of” content creators’ posts infringe on those social media companies’ protected expression.

Drawing on precedent like Miami Herald Publishing Co. v. Tornillo, the Supreme Court reiterated that forcing a private entity to host speech with which it disagrees violates the First Amendment. In Tornillo, a Florida law requiring newspapers to provide a right of reply was struck down because it interfered with “exercise of editorial control and judgment.” A right of reply refers to an individual’s right to defend oneself against public criticism in the newspaper where the criticism was lodged. Forcing a newspaper or social media platform to run things like a right of reply violates that platform’s First Amendment editorial speech rights.

The NetChoice Court applied this to the social media context. It emphasized that social media platforms, like traditional media, engage in expressive activities by curating and presenting third-party content. This conduct is expressive activity protected by the First Amendment because it involves “editorial judgments influencing the content of [their] feeds.”

The Supreme Court also held that content creators have First Amendment protection for online posts. In Mahanoy Area School District v. B.L., a school suspended a cheerleader for her profanity-laden Snapchat post after she failed to make the varsity cheer team. The Supreme Court held that the suspension impermissibly infringed on the cheerleader’s off-campus free speech rights.

The Right to Receive Information

The TikTok Court also mentioned, but did not rule on, whether the right to receive information under the First Amendment was implicated. It did not directly address the question raised by TikTok: whether the “ban-or-sell” law violated the First Amendment rights of TikTok users—not just content creators.

The Supreme Court previously noted in Martin v. City of Struthers that the First Amendment protects one’s “right to receive” literature, just as “freedom embraces the right to distribute literature.” Along similar lines, in Lamont v. Postmaster General of United States, the Supreme Court held that imposing an “affirmative obligation” on plaintiffs to request access to certain literature would have an unconstitutional “deterrent effect” on speech. The Supreme Court in TikTok declined to decide whether the First Amendment “right to receive” extends into the social media context.

The Supreme Court has held that this right-to-receive principle applies to one’s private home. Individuals, according to Stanley v. Georgia, even have the right to privately view materials whose public distribution could be banned under Roth v. United States, a case that permitted laws restricting the distribution of obscene materials. The First Amendment right to receive information, obscene or otherwise, in one’s own home has not been seriously questioned since Stanley.

But how far should Stanley and Martin reach? On the one hand, the Supreme Court has emphasized the narrow application of Stanley. On the other hand, three justices in Board of Education, Island Trees Union Free School District No. 26 v. Pico argued that the right to receive information voiced in Stanley should protect students’ rights to receive particular books in school libraries. They held “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” But that case had no controlling majority opinion, and no Supreme Court case has discussed the matter since.

Is It Unprotected Government Speech?

Government speech does not carry any First Amendment implications. The Fifth Circuit is currently addressing whether a public library’s decision to remove books qualifies as such government speech or whether library patrons have a free speech right to receive information.

In that case, Little v. Llano County, a panel majority applied First Amendment scrutiny to a public librarian’s book removal decision. The opinion has since been vacated and the Fifth Circuit is considering it en banc.

The panel dissent argued the public librarian’s curation choices were government speech. It cited three opinions from separate circuits holding there was no First Amendment protection when the speaker was the government rather than a person:

• In Sutliffe v. Epping School District, a town’s decision to not include a nonprofit group’s hyperlink on its website did not implicate the First Amendment because the decision was “an expressive act by the government.”
• In Illinois Dunesland Preservation Society v. Illinois Department of National Resources, a state agency’s decision to not place a nonprofit group’s two-page pamphlet about asbestos on display racks in state parks did not implicate the First Amendment. The court ruled the agency’s choice was expressive and unprotected government speech.
• In People for the Ethical Treatment of Animals, Inc. v. Gittens, a public art program solicited designs for sculptures of animals to be displayed around the District of Columbia. The plaintiff sued the district for violating its free speech rights by rejecting one of the designs. The D.C. Circuit rejected the First Amendment implications because the district itself was speaking by choosing some designs over others. The court noted that the decision to include certain exhibits over others is the same as in the public library scenario.

These cases highlight that one’s right to receive information or ability to speak in a public setting may not be protected First Amendment speech. If the government provides the platform – such as a display rack, library shelf or public art program – then the government may be the speaker, removing it from the scope of First Amendment protection.

The Importance of Identifying the “Speaker”

TikTok v. Garland raised a common issue in First Amendment litigation: determining who the “speaker” is in free speech clause cases. That issue is crucial for asserting or defending free speech claims. Litigants must assess whether a speaker’s free speech rights are even implicated to justify heightened First Amendment scrutiny.

When drafting a free speech complaint or defending an action, it is vital to consider the interplay of facts, including whether foreign entities are involved, the context of social media, whether the speakers are individuals or the government, and whether the right to receive information is implicated.

Contact Patrick Judd or any member of the Phelps litigation, appellate or media and First Amendment law teams if you have questions or need advice or guidance.