Tomorrow the Supreme Court will hear oral argument in TikTok v. Garland, the challenge to the federal statute that would require the social media behemoth to shut down in the United States unless its Chinese-controlled parent company sells it by January 19. Just last month, a panel consisting of a mix of highly respected D.C. Circuit judges appointed by presidents of both parties—Douglas Ginsburg, Neomi Rao, and Sri Srinivasan—unanimously upheld the law, the Protecting Americans from Foreign Adversary Controlled Applications Act of 2024. When TikTok followed with an emergency application for an injunction pending review, the Supreme Court treated the application as a cert petition, granting it on an expedited briefing schedule to consider whether the law violates the First Amendment. (The Court deferred consideration of injunctive relief.)

The law prohibits the distribution or maintenance of “foreign adversary controlled applications,” with China and three other countries identified as foreign adversaries. TikTok’s parent, ByteDance, is headquartered in Beijing, where it is beholden to the Chinese Communist Party (CCP). At least 138 employees, including the company’s chief editor, are members of a CCP committee embedded into ByteDance. By its laws and practices, the authoritarian regime maintains control over ostensibly “private” companies, which includes, as a House report noted, “the power to access and control private data” held by Chinese companies. ByteDance employees have already been caught accessing TikTok data to spy on U.S. journalists.

The D.C. Circuit took seriously the law’s implications for speech but nonetheless found it to pass muster under the First Amendment even if it were subjected to a heightened level of scrutiny (whether strict or intermediate). “On its face, the Act concerns control by a foreign adversary,” and it does not target speech based upon either its communicative content or viewpoints expressed. To be sure, a significant government objective is to prevent the Chinese government from being able to covertly manipulate content on the TikTok platform. But preventing a foreign adversary from manipulating public discourse in that way is a permissible purpose, as is countering an adversary’s efforts to collect data about Americans. China presents the greatest foreign intelligence threat to the U.S., complete with a massive hacking program and the capacity for devastating cyber-attacks on telecommunications, energy, water, and other U.S. infrastructure.

The operative statute restricts only foreign adversary control; with required divestiture, TikTok may well continue to operate in the United States with its content unchanged. The appeals court’s judgment is sound and should be affirmed by the Supreme Court. Although some may wonder why the Court would grant certiorari with the D.C. Circuit doing an admirable job and in the absence of a circuit split, I would guess that the justices wish to provide clarity on an issue of national importance. And of course, the law is written to apply to other apps that present the same issue. TikTok’s argument is so invested in reframing the law’s provisions as speech restrictions that it fails to grapple meaningfully with them for what they are—straightforward national-security measures.

To put it more bluntly, it is hard to improve upon the words of the amicus brief submitted to the Court by Senator Mitch McConnell, one of the staunchest champions of free speech on Capitol Hill: “The topsy-turvy idea that TikTok has an expressive right to facilitate the CCP censorship regime is absurd. Would Congress have needed to allow Nikita Khrushchev to buy CBS and replace The Bing Crosby Show with Alexander Nevsky? Even William O. Douglas[] would have blushed at the idea.”