



























3_Balamurugan.docx


 
 
 
 
 
Bellarmine Law Society Review 

 
Volume XV | Issue II       Article III 

 
 
 
TikTok and the First Amendment: An Analysis of the Constitutional Debate 
Regarding a TikTok Ban 
 

Kiruthiga Balamurugan  
Georgetown University, kb1359@georgetown.edu    
 
 

 

 

 

 

 



TIKTOK AND THE FIRST AMENDMENT: 
AN ANALYSIS OF THE CONSTITUTIONAL DEBATE REGARDING A TIKTOK BAN 

 

KIRUTHIGA BALAMURUGAN1 

 

Abstract: Government efforts to restrict or ban TikTok have consistently raised 
constitutional challenges across multiple levels of the judicial system, ultimately 
reaching the United States Supreme Court. This paper will trace the constitutional 
debate surrounding TikTok by examining key cases at each stage. It will begin 
with the executive actions initiated under the Trump administration, then turn to 
state level cases in Montana and Texas, and finally analyze how these precedents 
ultimately led to the Supreme Court’s final decision at the federal level. 

 
 
Congress shall make no law respecting an establishment of religion, or prohibiting the free 
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people 
peaceably to assemble, and to petition the Government for a redress of grievances. 

— The First Amendment, United States Constitution 
 
 

The word “security” is a broad, vague generality whose contours should not be invoked to 
abrogate the fundamental law embodied in the First Amendment. 
 

— Supreme Court Justice Hugo Black, Concurrence in New York Times Co. v. United States 
 

I. Introduction 

 Since 2020, few bills in Congress have received as much bipartisan support as a proposed 

ban on TikTok. Since its launch in 2016, TikTok—a social media app that allows users to create, 

share, and view short videos—has surged in popularity. In 2024, the app had over 170 million 

users in the United States and more than 1 billion monthly active users globally.2 TikTok has 

become a vibrant platform for content creation and engagement, enabling small businesses to 

2 “How many users on TikTok? Statistics & Facts (2024),” SEO, 
https://seo.ai/blog/how-many-users-on-tiktok#:~:text=TikTok%20Key%20Statistics-,TikTok%20has%20over%201
%20billion%20monthly%20active%20users%20globally%2C%20with,and%2024%20seconds%20in%202024 

1 Kiruthiga Balamurugan is a junior at Georgetown University studying Government and Economics. 

49 



promote themselves, allowing many individuals to build careers from their success and providing 

entertainment for millions. Despite the platform’s widespread popularity, the U.S. government 

has repeatedly attempted to ban the app, citing concerns that, because it is owned by the Chinese 

company, ByteDance, Americans’ data on the app may be at risk from the Chinese Communist 

Party. 

Government efforts to restrict or ban TikTok have consistently raised questions about the 

limits of executive power and the protections guaranteed by the First Amendment. Each attempt 

to justify a ban has faced legal challenges across multiple levels of the judicial system, ultimately 

reaching even the highest level—the United States Supreme Court. In the Supreme Court’s final 

decision, it unanimously upheld a law that would force TikTok to divest or be banned in the 

United States.3 This paper will trace the constitutional debate surrounding TikTok by examining 

key cases at each stage of litigation. It will begin with the executive actions initiated under the 

Trump Administration, then turn to state-level challenges in Montana and Texas, and finally 

analyze how these disputes culminated in federal appellate and Supreme Court decisions. 

 

II. Executive Actions Against TikTok 

Towards the end of President Donald Trump’s first term, a series of executive actions 

were undertaken to ban TikTok. The administration first publicly announced its consideration of 

the ban in July 2020, when former Secretary of State Mike Pompeo revealed that they were 

evaluating the possibility of prohibiting the app.4 Later, on July 31, President Trump had made 

4 Quint Forgey, “‘It’s something we're looking at’: Pompeo floats ban on TikTok,” Politico, last modified July 7, 
2020, https://www.politico.com/news/2020/07/07/mike-pompeo-tiktok-ban-350384. 

3 Antonia I. Tzinova, Andrew K. McAllister, and Sophie Jin, “U.S. Supreme Court Upholds TikTok Sale-or-Ban 
Law,” Holland & Knight, January 17, 2025, 
https://www.hklaw.com/en/insights/publications/2025/01/us-supreme-court-upholds-tiktok-sale-or-ban-law. 

50 



broad claims to reporters regarding his intent to ban the app stating, “as far as TikTok is 

concerned we’re banning them from the United States.”5 Later that year, on August 6th, Trump 

followed through with this claim by enacting Executive Order 13942, titled “Addressing the 

Threat Posed by TikTok.” Executive Order 13942 essentially directed the Secretary of 

Commerce to prevent the app from being downloaded in mobile app stores and to prohibit all 

transactions between anyone under the jurisdiction of the United States and ByteDance—the 

parent company of TikTok.6 In the Executive Order, Trump cited both the International 

Emergency Economic Powers Act (IEEPA) and the National Emergencies Act as justification for 

this action. The order reads: 

 “The spread in the United States of mobile applications developed and owned by 

companies in the People’s Republic of China (China) continues to threaten the 

national security, foreign policy, and economy of the United States. At this time, 

action must be taken to address the threat posed by one mobile application in 

particular, TikTok.”7  

The order goes on to explain the exact security concerns that the app has prompted, referencing 

both TikTok’s data collection process and the app’s alleged censorship of political information. 

The order states:  

“TikTok automatically captures vast swaths of information from its users, 

including internet and other network activity information such as location data 

and browsing and search histories. This data collection threatens to allow the 

Chinese Communist Party access to Americans’ personal and proprietary 

7 E.O 13942 of Aug 6, 2020. 
6 E.O 13942 of Aug 6, 2020. 

5 Ellen Nakashima, Rachel Lerman, and Jeanne Whalen, “Trump says he plans to bar TikTok from operating in the 
U.S.,” The Washington Post, last modified July 31, 2020, 
https://www.washingtonpost.com/technology/2020/07/31/tiktok-trump-divestiture/. 

51 



information—potentially allowing China to track the locations of Federal 

employees and contractors, build dossiers of personal information for blackmail, 

and conduct corporate espionage.”8  

The order then explains how TikTok reportedly censors political content that is deemed sensitive 

by the Chinese Communist Party and references protests against China’s treatment of Uyghur 

Muslims as an example of content that has been censored on the platform. This censorship is 

problematic to the United States government because “[TikTok] may also be used for 

disinformation campaigns that benefit the Chinese Communist Party, such as when TikTok 

videos spread debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.”9 

The order concludes by reinforcing that the threats that TikTok poses are indeed real, noting that 

the Department of Homeland Security, Transportation Security Administration, and the United 

States Armed Forces have banned the application from federal government phones and 

highlighting how the Indian government has banned TikTok in their country as well.  

This executive action was one part of a broader effort to mitigate perceived threats from 

Chinese technology companies. Soon after the order against TikTok was enacted, President 

Trump also issued Executive Order 13943 targeting another Chinese-owned app, WeChat, which 

had raised similar national security concerns.10 WeChat is an instant messaging mobile 

application with over 19 million users in the United States, predominantly among Chinese 

Americans who use it to stay in touch with family and friends in China.11 Just like the Executive 

11 Vivian McCall, “What is WeChat? Everything you need to know about the popular messaging app, including how 
to sign up,” Business Insider, last modified February 22, 2021, 
https://www.businessinsider.com/guides/tech/what-is-wechat. 
 

10 E.O 13943 of Aug 6. 2020. 
9 E.O 13942 of Aug 6, 2020. 
8 E.O 13942 of Aug 6, 2020. 

52 



Order targeting TikTok, the IEEPA and the National Emergencies Act were also cited to justify 

the President’s ability to ban a mobile application.  

Both Executive Orders were quickly challenged in court. In August 2020, TikTok filed a 

lawsuit, TikTok v. Trump, which was heard by the United States District Court for the District of 

Columbia. Likewise, another case, U.S. WeChat Users Alliance v. Trump, was brought before the 

United States District Court for the Northern District of California. In both cases, the plaintiffs 

won a preliminary injunction blocking the enforcement of the Executive Order as the courts 

found that the executive orders 1) showcased an overstep of authority under IEEPA and 2) 

created significant First Amendment implications on free speech.  

IIa. International Emergency Economic Powers Act 

To understand why the executive order oversteps its authority, it is important to 

understand what powers the IEEPA contains.The International Emergency Economic Powers Act 

is a U.S. federal law enacted in 1977 that grants the President broad authority to regulate and 

control economic transactions during national emergencies. This emergency statute falls under 

the umbrella of the National Emergencies Act.12 Under IEEPA, the President can impose 

sanctions, block assets, and restrict trade with foreign entities or nations when there is a 

perceived threat to national security, foreign policy, or the economy. The act is designed to 

provide a flexible tool for responding to international crises, allowing the government to take 

swift action to protect U.S. interests.  

In this case, the act was cited as justification to ban both TikTok and WeChat. To trigger 

the usage of IEEPA, there must first be a declaration of a national emergency or the situation 

must be linked to a previous national emergency declaration. Both orders were linked to a prior 

12 International Emergency Economic Powers Act, Public Law 223, U.S. Statutes at Large 91 (1977): 1625-1629. 

53 



Executive Order (EO 13873) titled “Securing the Information and Communications Technology 

and Services Supply Chain.”13 In this order, Trump claimed that a national emergency existed 

because: 

“foreign adversaries are increasingly creating and exploiting vulnerabilities in 

information and communications technology and services, which store and 

communicate vast amounts of sensitive information, facilitate the digital 

economy, and support critical infrastructure and vital emergency services, in order 

to commit malicious cyber-enabled actions, including economic and industrial 

espionage against the United States and its people.”14  

Therefore, while a ban of an app is an extreme route, under IEEPA, it is possible to “deplatform” 

an application. 

However, the federal district court in TikTok v. Trump found that the Executive Order was 

an overreach of executive power given the Personal Communication Limitation and the 

Informational Materials Amendment Limitation of the Act. The Personal Communication 

Limitation states that the IEEPA does not have the authority to “regulate or prohibit, directly or 

indirectly… any… personal communication, which does not involve the transfer of anything of 

value.”15 This provision is designed to safeguard the free flow of personal communication, which 

is considered crucial for maintaining personal relationships and ensuring the free exchange of 

ideas. In this case, because users on TikTok utilize the app as a platform to communicate with 

one another through its direct messaging feature, this limitation applies. However, arguments on 

15 Supak, “Political Posturing.” 
14 E.O 13943 of Aug 6. 2020. 

13 Gabrielle Supak, “Political Posturing or a Move towards ‘Net Nationalism?’: The Legality of a TikTok Ban and 
Why Foreign Companies Should Be Paying Attention,” North Carolina Journal of Law and Technology, NexisUni. 

54 



the other side have raised the point that there is indeed a transfer of value since users exchange 

their data for the ability to use the application.  

As for the Informational Materials Amendment Limitation, this provision pertains to the 

restriction of informational materials such as books, newspapers, and other printed or digital 

content. Under IEEPA, the President’s powers cannot be used to restrict the dissemination of 

informational materials.16 This means that while economic sanctions and other measures may be 

imposed, they cannot target or obstruct the exchange of informational content. In this case, the 

US District court found that TikTok’s content met the definition of informational materials 

because the central feature of the app is sharing information in the form of short videos, thereby 

invoking this limitation.  

Therefore, due to both the Personal Communication Limitation and the Informational 

Materials Amendment Limitation, it is clear how Trump’s use of the IEEPA to justify an all-out 

ban of both platforms with an executive order would not suffice. 

IIb. Implications of First Amendment Rights 

 Both US District courts also recognized implications of First Amendment rights given a 

ban of the respective platforms. In U.S. WeChat Users Alliance v. Trump, the plaintiffs relied 

strongly on a First Amendment argument claiming that the executive order banning WeChat 

infringed upon their free speech rights by disrupting their ability to communicate freely, 

particularly within communities that rely heavily on the app for both personal and professional 

interactions. The District Court in this case determined that the First Amendment challenge was 

indeed valid because “evidence demonstrated that ‘WeChat is effectively the only means of 

communication for many’ in the Chinese-speaking and Chinese-American community, and 

16 Ibid. 

55 



‘there are no viable substitute platforms or apps’” to communicate with other users of WeChat 

located in China.17 

 TikTok also made First Amendment challenges in its lawsuit as well claiming that it has 

First Amendment protections via the rights of content creators on the platform. While the rights 

of content creators on social media have not explicitly been identified by the Supreme Court, it is 

likely that their content would also be given First Amendment protections granted that the 

content is not part of an unprotected category of speech such as obscenity or “fighting words.” In 

litigation, however, the government expressed their belief that First Amendment rights are not at 

all implicated by a ban of the app. Nevertheless, both the US District Court in this case and lower 

state courts in subsequent cases have recognized the First Amendment arguments raised by 

TikTok’s lawyers. 

 After both lawsuits were granted a preliminary injunction, the suits were withdrawn when 

President Biden was elected into office and rescinded the executive orders targeting TikTok and 

WeChat. However, this transfer of power did not fully resolve the issue, as the Biden 

administration would also take further steps aimed at addressing the national security concerns 

that Chinese ownership of TikTok raises— moves which we shall examine in the next section. 

 

III. PAFACA and Lower Court Rulings 

 During President Biden’s term, Congress passed the Protecting Americans From Foreign 

Adversary Controlled Applications Act (PAFACA). The bill was first passed by the House of 

Representatives on March 13, 2024, receiving bipartisan support with a vote of 352 to 65. 

17 Ibid. 

56 



Amongst those who voted against the bill, 50 were Democrat and 15 were Republican.18 Then on 

April 23, 2024, the bill was passed by the Senate with a vote of 79–18. The bill was then signed 

by President Biden on April 24. This law would ban TikTok in the United States unless it fully 

divested from ByteDance (the Chinese-owned parent company) by January 19, 2025.19 Although 

this law is aimed to target TikTok, just as Trump’s executive order did, its approach differs in a 

significant way by calling for a divestiture rather than banning the app upfront. Nonetheless, 

even with this new approach, TikTok’s lawyers continue to challenge the constitutionality of 

such a law, claiming that a divestiture still infringes upon First Amendment rights and arguing 

that a sale would be implausible given the timeline provided in the law. Their argument relies on 

the fact that any company or investors looking to buy TikTok would have to receive confirmation 

by the Chinese government whose officials have made it clear that they are opposed to a forced 

sale.20 

 Following the passing of the law, TikTok has filed for a petition for review of 

constitutionality in the United States Court of Appeals for the District of Columbia circuit. In 

their petition, TikTok argued that a “qualified divestiture” from ByteDance is not possible, and 

even if it was, a mandated divestment would not be constitutional anyway.21 The petition states:  

“If upheld, it would allow the government to decide that a company may no 

longer own and publish the innovative and unique speech platform it created. If 

21 Petition for Review of Constitutionality of the Protecting Americans from Foreign Adversary Controlled 
Applications Act, 2024, 
https://fingfx.thomsonreuters.com/gfx/legaldocs/xmpjrzberpr/frankel-tiktokban--complaint.pdf. 

20 Bobby Allyn, “President Biden signs law to ban TikTok nationwide unless it is sold,” NPR, last modified 2024, 
https://www.npr.org/2024/04/24/1246663779/biden-ban-tiktok-us. 

19 Cristiana Lima-Strong, “Biden signs bill that could ban TikTok, a strike years in the making,” The Washington 
Post, last modified 2024, 
https://www.washingtonpost.com/technology/2024/04/23/tiktok-ban-senate-vote-sale-biden/. 

18 “HR 7521 - Protecting Americans from Foreign Adversary Controlled Applications Act - National Key Vote,” 
Vote Smart, 
https://justfacts.votesmart.org/bill/36703/98368/protecting-americans-from-foreign-adversary-controlled-application
s-act. 

57 



Congress can do this, it can circumvent the First Amendment by invoking 

national security and ordering the publisher of any individual newspaper or 

website to sell to avoid being shut down.”22  

TikTok argues that PAFACA is inconsistent with the First Amendment because it states, 

“Congress shall make no law… abridging the freedom of speech.”23 In this case, the argument is 

that because Congress is attempting to dictate a private speech forum, as opposed to “broadcast 

television and radio stations, which require government licenses to operate because they use the 

public airwaves” it cannot be consistent with First Amendment protections.24  

Moreover, TikTok claims that not only do users on the platform enjoy First Amendment 

protections but the platform itself does as well. They note how this argument was accepted by the 

government in an amicus brief filed in the case Moody v. NetChoice LLC quoting, “[w]hen 

[social media] platforms decide which third-party content to present and how to present it, they 

engage in expressive activity protected by the First Amendment because they are creating 

expressive compilations of speech.”25 They also cite the cases Hurley v. IrishAm. Gay, Lesbian & 

Bisexual Grp. of Bos. and Miami Herald Pub. Co. v. Tornillo, to highlight how TikTok’s editorial 

control (the app’s ability to decide what content to promote and the manner in which the content 

is promoted) makes the platform “more than a passive receptacle or conduit for news, comment, 

and advertising.”26 Therefore, they argue that TikTok’s exercise of editorial control and judgment 

must be protected under the First Amendment and a law such as PAFACA which hinders 

TikTok’s ability to carry out such editorial control is incompatible with Free Speech protections. 

26 Ibid.  
25 Ibid. 
24 Ibid.  
23 Ibid.  
22 Ibid.  

58 



Furthermore, TikTok argues that even if the platform is not entirely banned but just 

forced to divest from its original ownership, this would still constitute an infringement of the 

First Amendment. They claim that under new ownership, the character of the app itself would be 

altered. This argument was noted by Supreme Court Justice Kagan during oral arguments in 

Moody v. Netchoice LLC, where she observed that the sale of the social media platform Twitter 

to Elon Musk had altered the character of the app. Kagan said, “Twitter users one day woke up 

and found themselves to be X users and the content rules had changed and their feeds changed, 

and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical 

sense every morning.”27 Under TikTok’s argument they claim that by mandating the sale of 

TikTok to an entity with no connections to the Chinese Communist Party, Congress aims to alter 

the fundamental nature of the platform. They claim that this type of government action is exactly 

what the First Amendment was constructed to protect against. 

The case TikTok Inc. and ByteDance Ltd. v. Merrick was heard by the D.C. Circuit Court 

of Appeals and then by the U.S. Supreme Court. Both courts ruled to uphold the law requiring 

ByteDance to divest or face a ban. Prior to the ruling, lower court decisions dealing with similar 

issues provided useful insight into how the case might be resolved. One such case took place in 

the United States District Court for the District of Montana, where Governor Gianforte signed 

legislation banning TikTok throughout the state. TikTok challenged the law and was granted a 

preliminary injunction by Judge Malloy.28 Another relevant case emerged in Texas, where the 

U.S. District Court for the Western District of Texas dismissed a First Amendment challenge 

against Governor Abbott’s order which banned TikTok from government and University of North 

28 Bobby Allyn, “Federal judge blocks Montana's TikTok ban before it takes effect,” NPR, last modified 2023, 
https://www.npr.org/2023/11/30/1205735647/montana-tiktok-ban-blocked-state. 

27 Will Oremus, “Supreme Court revives debate over social media as a ‘public square,’” The Washington Post, last 
modified February 28, 2024, 
https://www.washingtonpost.com/politics/2024/02/28/supreme-court-revives-debate-over-social-media-public-squar
e/. 

59 



Texas (UNT) devices.29 Examining these earlier cases helps clarify the legal landscape that 

informed the D.C. Circuit’s and the Supreme Court’s reasoning in TikTok v. Merrick and 

contextualizes its final decision to uphold PAFACA. 

IIIa. Montana’s TikTok Ban 

 In May of 2023, Montana enacted Senate Bill 419 (SB 419) into law. This law was aimed 

to target the usage of TikTok within the State. This was significant as it was the first state in the 

US to impose this type of statewide ban on a social media platform.30 The legislation mandates 

that app stores, like Google Play and Apple’s App Store, must not offer TikTok for download 

within the state of Montana. Furthermore, the law also bans the app from being used by 

individuals within the state who have already downloaded the app. The law is enforced by 

punishing app stores that fail to comply with the regulation and by imposing fines and penalties 

on TikTok itself if they continue to operate within the state. The preamble of the law states, “the 

People’s Republic of China is an adversary of the United States and Montana and has an interest 

in gathering information about Montanans… TikTok gathers significant information from its 

users, accessing their data against their will to share with the People’s Republic of China.”31 This 

demonstrates that Montana shares similar security interests with Congress in banning the app, as 

the justification closely resembles that cited for PAFACA. The bill then goes on to explain 

another issue that Montana has with TikTok, writing that:  

“TikTok fails to remove, and may even promote, dangerous content that directs 

minors to engage in dangerous activities, including but not limited to throwing 

31An Act Banning TikTok in Montana, SB 419 (Mont. 2023), https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf.  
30 Allyn, “Federal judge,” NPR. 

29 Adam Chan, “Why TikTok's Victory in Montana Might be Bad News for the Platform,” LawFare, last modified 
2024, 
https://www.lawfaremedia.org/article/why-tiktok-s-victory-in-montana-might-be-bad-news-for-the-platform#:~:text
=Judge%20Donald%20W.,a%20major%20win%20for%20TikTok. 

60 

https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf


objects at moving automobiles, taking excessive amounts of medication, lighting 

a mirror on fire and then attempting to extinguish it using only one’s body parts… 

licking doorknobs and toilet seats to place oneself at risk of contracting 

coronavirus, attempting to climb stacks of milk crates, shooting passersby with air 

rifles, loosening lug nuts on vehicles, and stealing utilities from public places.”32 

 In contrast with national security concerns, these issues raised by Montana focus on a more 

public safety consideration. Finally, SB 419 asserts that the law would become effective on 

January 1, 2024 unless “TikTok [is] acquired by or sold to a company that is not incorporated in 

any other country designated as a foreign adversary” before that date.33 Therefore, in that sense, 

it is once again similar to PAFACA as the law will lift the ban if TikTok divests from its Chinese 

ownership. 

 TikTok challenged the legality of the bill, and on November 30, 2023, the US District 

Court for the District of Montana preliminarily enjoined its enforcement, citing various 

constitutional concerns including First Amendment challenges, Supremacy Clause and 

preemption issues, and the Commerce Clause.34  

Firstly, TikTok asserts that SB 419 unconstitutionally violates its First Amendment rights 

by banning the platform on a content-based justification. TikTok contends that it has a right to 

exercise editorial judgment and its users have the right to convey speech on the platform as they 

wish. These challenges are similar to those raised against the Trump administration’s Executive 

Orders against TikTok and WeChat. Secondly, TikTok’s preemption argument rests on the 

Supremacy Clause of the Constitution which establishes that in the case where state law is in 

conflict with a specific federal law, federal law must preempt the conflicting law—this is known 

34 Chan, “Why TikTok’s,” LawFare. 
33 Ibid.  
32 Ibid. 

61 



as conflict preemption. In some areas, federal interests may entirely dominate the field, making 

state legislation invalid in those areas—this is known as field preemption. TikTok argues that the 

matter of regulating a foreign-owned app for national security reasons by a state is federally 

preempted because it interferes with the reserved powers for the federal government over foreign 

affairs. Lastly, TikTok’s final challenge includes the Commerce Clause. This clause of the 

Constitution allows for Congress to regulate interstate and foreign commerce—and restricts 

states from doing so. Therefore, TikTok argues that although the ban proposed in SB 419 is state 

specific, it “risks disrupting the flow of travel and commerce between states.”35 On the basis of 

these claims, TikTok was granted a preliminary injunction against Montana’s argument that SB 

419 was a valid exercise of Montana’s police powers. The District Court found TikTok’s 

arguments compelling enough to determine that their case would likely succeed on its merits, 

which justified the granting of the injunction.  

With respect to the First Amendment argument that was brought up, the Court found that 

the law did indeed violate free speech protections from both a strict scrutiny and intermediate 

scrutiny analysis. Both strict scrutiny and intermediate scrutiny are standards of judicial review 

used to evaluate the constitutionality of laws. Strict scrutiny is the most rigorous level of judicial 

review and is applied when the law in question affects a fundamental constitutional right. Under 

strict scrutiny, a law must serve a compelling government interest and be narrowly tailored to 

achieve that interest using the least restrictive means possible. Intermediate scrutiny, on the other 

hand, is less rigorous. Under intermediate scrutiny the law only has to serve an important 

government purpose and be substantially related to that interest. While both standards are 

designed to ensure that laws do not unjustifiably infringe on individual rights, strict scrutiny sets 

a higher bar than intermediate scrutiny does. In this case, there is no question that free speech is a 

35 Ibid. 

62 



fundamental right, which is why TikTok asserted that the Court must review the case using strict 

scrutiny analysis. However, the Court chose to analyze the case from an intermediate level, 

finding that the law was not affecting TikTok in a content-based manner but was instead 

content-neutral. If the law against TikTok was content-based, it means the government is 

targeting the message or the substance of the speech itself and discriminating based on the 

specific viewpoint of the speech in question. On the contrary, content-neutral restrictions do not 

address the substance of the message but rather target something else and happen to restrict 

speech as a consequence. Because free speech is a fundamental right, laws that regulate speech 

based on their content are evaluated from a strict scrutiny perspective, while content-neutral 

regulations are evaluated using intermediate scrutiny. Although SB 419 does specify specific 

content on TikTok that Montana takes issue with, due to the fact that the law bans the entire app 

and not just that specific content, the Court decided that SB 419 is more of a content-neutral 

restriction and therefore should be analyzed under intermediate scrutiny. The District Court 

Judge Donald W. Molloy explained this decision, writing that neither TikTok’s argument for 

strict scrutiny because the law is content-based or Montana’s argument for intermediate scrutiny 

because the law is content-neutral “is completely accurate, but the State’s is closer to the legal 

mark.”36 

The test that is used for evaluating speech under intermediate scrutiny is the O’Brien test. 

United States v. O’Brien was a case decided by the Supreme Court that established a test to 

evaluate the constitutionality of content-neutral restrictions on speech, such as a law banning the 

burning of a draft card. In O’Brien, the Supreme Court determined that: 

“a government regulation is sufficiently justified if: 1) it is within the 

constitutional power of the government, 2) it furthers an important or substantial 

36 Ibid. 

63 



governmental interest, 3) the governmental interest is unrelated to the suppression 

of free expression, and 4) the incidental restriction on alleged First Amendment 

freedoms is no greater than is essential to the furtherance of that interest.”37  

Starting with the second criteria, Montana’s lawyers argued that the government did indeed have 

an important interest in protecting the data of their citizens from a “foreign adversary” and that 

this interest is indeed unrelated to the suppression of free speech. However, this interest was 

deemed invalid by Judge Malloy as he rejected the notion that national security was a legitimate 

state interest, writing that, “the State posits there is nothing precluding a state from legislating in 

the field of national security. The Founding Fathers may have viewed that proposition skeptically 

considering the Constitution’s particular provisions.”38  

Irrespective of whether Montana’s or Judge Malloy’s argument is more compelling, 

Judge Malloy also asserts that SB 419 fails the fourth criteria of the O’Brien test as he found that 

Montana had failed to demonstrate that it was not burdening more speech than necessary to 

achieve its interest. To this point, Montana’s lawyers had asserted that TikTok had not been 

compliant with a multistate investigation into the security of the platform but Malloy claimed 

that it was “unclear how this single investigation into TikTok warrants a complete ban on the 

application.”39 Judge Malloy then further justified this conclusion by explaining that Montana 

offered no evidence to show that TikTok is similar enough to other social media platforms to 

demonstrate that SB 419 still leaves alternative channels of communication open for the public. 

Lastly, in regards to the first criterion of the O’Brien test—that government regulation is 

within the constitutional power of the government—Judge Malloy held that SB 419 was not 

within the state government’s powers, upholding TikTok’s arguments that the law is 

39 Ibid. 
38 Chan, “Why TikTok’s,” LawFare. 
37 United States v. O’Brien, 391 U.S. 367 (1968). 

64 



unconstitutional for violating both the Supremacy Clause and the Commerce Clause of the 

Constitution. Therefore, following this logic, Judge Malloy granted the preliminary injunction 

which enjoined the law from taking effect.  

IIIb. Texas’ TikTok Ban 

 A case against TikTok also emerged in the state of Texas. Just like Montana, Texas 

wanted to impose restrictions on the platform in fear of user data being accessed by the Chinese 

government. This Texas law known as Senate Bill 1195 (SB 1195) was aimed at limiting the use 

of TikTok on state government devices and networks and from the University of North Texas 

(UNT) devices as opposed to an all-out ban like SB 419 in Montana. After SB 1195 was enacted 

on May 26, 2023, the Coalition for Independent Technology Research—a group of “academics, 

journalists, civil society researchers, and community scientists committed to advocating for and 

organizing in defense of research that is ethical, transparent, and privacy-preserving”40— 

challenged the legality of the ban in the U.S. District Court for the Western District of Texas for 

“blocking TikTok-related teaching research and teaching in classrooms.”41 The judge overseeing 

this case, Robert L. Pitman, had been very sympathetic to First Amendment challenges in 

previous cases he had dealt with, but that did not stop him from dismissing the First Amendment 

challenges against Texas in this case.  

 In his analysis of the case, Judge Pitman recognized the importance of the First 

Amendment’s “extra protection” for public university faculty as their unique position makes 

them both academics as well as public employees.42 The plaintiffs in the case requested that a 

First Amendment test which is generally used for public employees be utilized in this case. This 

42 Ibid. 
41 Chan, “Why TikTok’s,” LawFare. 
40 Coalition for Independent Technology Research, https://independenttechresearch.org/about-us/. 

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test would limit speech restrictions to those “necessary for their employers to operate efficiently 

and effectively.”43 Under this test, the plaintiffs would likely win because public university 

faculty would still be able to teach effectively with TikTok’s presence. However, Judge Pitman 

rejected this test and instead employed the more lenient “nonpublic forum” test.44 This test 

requires that the regulation needs to only be “reasonable in light of the purpose which the forum 

serves.”45 Under this test, Pitman found that a regulation of university-owned devices is 

reasonable because of Texas’ security concerns of data privacy. Moreover, Pitman distinguished 

this case from Montana’s ruling, arguing that the Montana law was more sweeping as it banned 

TikTok entirely in the state while the Texas law only regulated TikTok on its own governmental 

property. Therefore, while the Montana law needed to be inspected with intermediate scrutiny, 

Texas’ law did not. 

 

IV. Applying Precedent Decisions to PAFACA 

 Although these lower court rulings offer crucial insights into the federal courts’ 

interpretations of the constitutionality of PAFACA, it is important to recognize that the federal 

law is distinguished from the state cases in Montana and Texas in significant ways. In Texas, the 

ruling was highly dependent on the fact that the TikTok ban only applied to government devices. 

In contrast, PAFACA aims to ban TikTok on all devices in the United States (similarly to the 

Montana statewide ban). Nevertheless, the federal case is also distinguished from Montana’s 

because many of TikTok’s strong arguments in that case no longer apply at the federal level. For 

example, both the Supremacy Clause argument and the Commerce Clause argument would no 

45 Ibid. 
44 Ibid. 
43 Ibid. 

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longer apply. Furthermore, because Montana’s statute highlighted the concern that TikTok “fails 

to remove, and may even, promote, dangerous content that directs minors to engage in dangerous 

activity” and went on to list specific examples of this content, TikTok was also able to make the 

argument that the statute was in fact content-based and therefore would require a heightened 

level of scrutiny.46 This argument would not apply at the federal level since the language of 

PAFACA does not mention targeting dangerous content on the platform but is rather more 

focused on the national security concern that the app poses due to its Chinese-based ownership. 

Moreover, in the Montana case, Judge Malloy was able to dismiss the argument that national 

security could be considered an important state interest.47 However, at the federal level, national 

security is without a doubt a considerable interest which explains the Supreme Court’s decision 

to ultimately uphold PAFACA even if it means potentially limiting First Amendment protections 

for the sake of national security. 

 Yet, despite this outcome TikTok maintains a compelling argument. Even under the 

intermediate scrutiny standard (O’Brien test), the government must demonstrate that any 

incidental restriction on First Amendment freedoms is no greater than necessary to advance its 

interest. In this case, it could be argued that PAFACA represents an overreach by mandating that 

TikTok completely divest from its original ownership to continue operating in the United States. 

Instead of this drastic measure, an argument could be made that the government should focus on 

imposing regulations specifically targeting the data collection practices of TikTok rather than 

shutting down the platform entirely. 

Furthermore, TikTok has shown that it is willing to cooperate to remedy the government’s 

security concerns. During TikTok CEO Shou Chew’s first appearance before Congress, he 

47 Chan, “Why TikTok’s,” LawFare. 
46 An Act Banning TikTok in Montana, SB 419.  

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explained Project Texas, the plan the company had developed through several discussions with 

CFIUS (Committee on Foreign Investment in the United States) to address the government’s 

concerns. CFIUS is an “interagency committee with authority to review, block, and where 

necessary compel investment of foreign acquisitions of US business.”48 At the hearing, Chew 

told Congress members: 

“our approach has never been to dismiss or trivialize any of [your] concerns. We 

have addressed them with real action now. That’s what we’ve been doing for the 

past two years, building what amounts to a firewall. The seals of protected US 

user data from unauthorized foreign access. The bottom line is this: American 

data stored on American soil by an American company overseen by American 

personnel. We call this initiative Project Texas.”49 

Since then, TikTok has implemented many of Project Texas’ features to show the 

company’s real dedication to this issue. For example, TikTok transferred US user data to the 

cloud infrastructure of Oracle, a US company.50 Moreover, TikTok launched a campaign to 

educate their users about data security and Project Texas. On their website, TikTok writes: 

“Project Texas puts the concepts of transparency and accountability into action by 

addressing national security concerns head-on with concrete, measurable 

solutions. The framework has five key pillars: Independent Governance, Data 

Protection and Access Control, Software Assurance, Content Assurance, and 

Monitoring and Compliance. This approach is designed to address concerns that 

have been raised in the U.S. about TikTok, while also allowing us to continue to 

50 Matt Perault, “What Happened to TikTok’s Project Texas?,” LawFare, last modified 2024, 
https://www.lawfaremedia.org/article/what-happened-to-tiktok-s-project-texas. 

49 Christianna Silva, “What is Project Texas, TikTok’s best chance to avoid a ban?,” Mashable, last modified 2023, 
https://mashable.com/article/project-texas-tiktok#:~:text=Project%20Texas%20would%20restructure%20much,city
%20(Austin%2C%20Texas). 

48 Ibid. 

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offer a globally interoperable service. We have already proactively implemented 

substantial portions of this framework, and we look forward to continuing our 

work to further ensure peace of mind for our community and our stakeholders.”51  

Given the existence of this alternative route for TikTok to address the government’s security 

concerns, it can be argued that the Supreme Court’s ruling to uphold PAFACA was too 

deferential to the government without concrete evidence of legitimate national security concerns. 

Ultimately, the United States Supreme Court upheld PAFACA, confirming that a 

divestiture from ByteDance was indeed a constitutional means of advancing national security 

concerns. Despite this legal defeat, TikTok was never completely banned in the United States. 

Although US users were temporarily unable to access the app for a few hours following the 

January 19 divestiture deadline, President Trump, upon assuming office the next day issued an 

Executive Order halting enforcement for 75 days52 to allow for alternate solutions to be 

explored.53  

Overall, the outcome of this long-standing legal battle involving TikTok carries 

implications that are significant for far more than one single social media platform. This decision 

impacts not only TikTok but sets an important precedent for future disputes involving 

foreign-owned technology companies and the ongoing effort to balance security interests with 

constitutional protections for speech. Furthermore, the fact that PAFACA was never fully 

enforced also reveals important implications regarding separation of powers. Despite the 

legislative and judicial branch demonstrating a need for regulation, the final outcome still 

53 Jamali, Lily. 2025. “President Trump Signs Executive Order Delaying TikTok Ban.” BBC News, January 21, 2025. 
https://www.bbc.co.uk/news/articles/cd0j24rj4ryo. 

52 Although the initial order was for 75 days, President Trump would later extend this even further. Currently, it has 
been extended until December 16, 2025. 

51 “TikTok’s Commitment to U.S. National Security,” TikTok U.S. Data Security, 
https://usds.tiktok.com/usds-about/. 

69 



depended on the political choices of the executive branch, underscoring how intertwined law and 

policy have become. 

 

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	I.​Introduction 
	II.​Executive Actions Against TikTok 
	IIa. International Emergency Economic Powers Act 
	IIb. Implications of First Amendment Rights 

	III.​PAFACA and Lower Court Rulings 
	IIIa. Montana’s TikTok Ban 
	IIIb. Texas’ TikTok Ban 

	IV.​Applying Precedent Decisions to PAFACA 

