JHR Blog

Introduction

On January 20, 2025, President Trump took office in the White House and began his second administration. One of the “hot” issues is the TikTok ban[1]. In the last administration, President Trump saw this social media having 170 million American users as hostile, but now it is assumed that he changed “his mind.” Now, TikTok and other popular Chinese apps are centered in a new Cold War whose battle field is speech platforms.[2]

This article briefly reviews the history of the TikTok ban and the recent impactful case of TikTok Inc. v. Garland—the First Amendment right of SNS users v. the Government’s national security interest—, analyzing the past Supreme Court’s decisions that balanced these competing interests. Then, examine the international context that will come next.

I.               Brief History of TikTok ban

(1)  Former Trump Administration

On August 6, 2020, Trump signed the executive order to ban transactions with ByteDance, owner of TikTok in the U.S. This would be effective in 45 days, on Sept. 20, 2020.[3] What led Trump to ban TikTok might be his desire to be reelected: his reelection campaign is driven by China-bashing to make China a scapegoat for complicated issues from COVID-19 to American job loss.[4]

In the order, Trump said Chinese apps threatened “the national security, foreign policy, and economy of the United States,” citing the potential for the Chinese Communist Party to access “Americans’ personal and proprietary information.”[5]

To avoid the forced sale of the US part of the business, ByteDance approached Microsoft as a possible partner and later chose Oracle as a “trusted technology provider.”[6] Under the corporation with Oracle, ByteDance would be able to keep TikTok’s algorithm and store user data in the U.S., but that didn’t happen.[7]

(2)  Biden Administration

Biden’s executive order revoked Trump’s two orders and asked the Secretary of Commerce to evaluate the risks caused by China-based apps and address “any unacceptable or undue risks consistent with overall national security”.[8] Like Trump’s order, Biden’s order also acknowledged that these Chinese apps can access American users’ information.[9]

On March 23, 2023, the Congress hearing inviting Shou Zi Chew, the CEO of TikTok, was held in the Committee on Energy and Commerce. In her opening Statement, Chair Cathy McMorris Rodgers (R-WA) criticized TikTok as “TikTok surveils us all and the Chinese Communist Party (CCP) is able to use this [collected data of American users] as a tool to manipulate America” and “TikTok doesn’t share America’s value.” She called for the ban on TikTok and preparation for “the next technological tool or weapon China will use for its own strategic gain.”[10] In its hearing memo, the strong connection between TikTok and CCP is addressed; though TikTok executives denied that it shares U.S. user data with the CCP, CCP actually passed laws that require all Chinese tech companies, including ByteDance, to allow CCP to access user data.[11] ByteDance also stated that any sale would need approval from Chinese Authorities.[12] Note that the Chinese government is a “golden” shareholder of ByteDance and has veto powers in the company.[13]

In April 2024, Biden signed the bill of the Protecting Americans from Foreign Adversary Controlled Applications Act, the so-called “TikTok ban,” that gave ByteDance 270 days, until January 19, 2025, to sell TikTok; otherwise, TikTok would be kicked out from the U.S. app stores, prohibited from any internet support, and restricted new app downloads.[14] The Act prohibits any entity from providing services to “distribute, maintain, or update” a “foreign adversary controlled application” in the United States and also prohibits any connection between ByteDance and TikTok after the sale.

The unique feature of TikTok is its recommendation algorithm:[15] unlike other SNS, TikTok’s algorithm recommends videos based on a user’s past engagement and personalized data, which allows TikTok to pull content not only from a user’s network but from the global pool.[16] U.S. officials warn TikTok’s algorithm is vulnerable to “manipulation by Chinese authorities, who can use it to shape content for propaganda purposes.”[17] While the bill asks TikTok to be separated from ByteDance, this separation is challenging because its algorithm is owned by ByteDance and maintained by Chinese engineers.[18] In response to the Act, TikTok began legal action against the Act, stating the law that censors freedom of speech and would devastate 170 million U.S. users is “unconstitutional.”[19]

However, the result of November changed the pathway to the TikTok ban. Biden left the implementation of the law to the next President, Trump.[20] In Congress, “saving TikTok” has become a partisan matter: Senate Democratic Leader Chuck Schumer revealed he persuaded Biden to extend the deadline to ban TikTok to ensure more time for AmericanTikTok users who live on their content revenues.[21]

(3)  Present Trump Administration

The fact that the CEO of TikTok and other social networking heroes were at Trump’s inauguration was not just a coincidence.[22] TikTok was banned on January 19, 2025, and the next day, it seemed as if it came back to life. President Trump issued an executive order on January 20 to pause the ban required by the Act for 75 days.[23] In his “new” order—completely “shifted” from that in his former administration—Trump would “pursue a resolution that protects national security while saving a platform used by 170 million Americans” in the name of the President’s constitutional responsibility for the national security.[24]

What brought such a dramatic shift to Trump? One reason might be that winning the election has reaffirmed his belief in the usefulness of SNS as TikTok enabled his team to connect with young voters, which contributed to his victory.[25] The second reason would be that the SNS giants enthusiastically donated to Trump: Jeff Yass, one of the world’s 100 richest men and a TikTok investor hedged funds to Trump.[26] Elon Musk, X owner, has spent $200 for Trump’s campaign and got the privilege to lead a new “Department of Government Efficiency.”[27] Meta CEO Mark Zuckerberg updated his platforms’ policies to loose rules against hate speech to be more “Trump-friendly.”[28]

President’s “personal” motivation to pause the TikTok ban confused the tech industry; to follow the Act that passed Congress or to ignore it? Amazon Web Service, Apple, and Google followed the law by stopping providing its direct service to TikTok and deleting TikTok on their app stores while Oracle, Akamai, and Fastly continued their services to TikTok.[29] This division is likely to come from two different types of fear: the risk of being theoretically liable for up to $850 billion or the risk of being resistant to the President’s will.[30] The situation surrounding the ban on TikTok is highly fluctuating.

II.            TikTok Inc. v. Garland

(1)  Trump’s Amicus Brief

Before the Supreme Court’s decision, Trump filed an amicus brief to the Court in December 2024. In his brief, though Trump took no position on the merits of the dispute, he asked the Court to postpone the Act’s effective date so that his next Administration can resolve a nationwide shutdown of TikTok and national security concerns and the Court can obviate the need to decide “extremely difficult questions on the current, highly expedited schedule.”[31] Trump completely changed his attitude toward TikTok from when his executive order was issued, stating he evaluated “TikTok’s importance as a unique medium for freedom of expression” and called TikTok a constitutional forum where “the First Amendment’s ‘constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’”[32] Trump posed a concern that the First Amendment right of 170 million Americans on TikTok would suffer because the ban, based largely on the government’s concerns about disfavored speech on the platform, might be a “dangerous global precedent by exercising the extraordinary power to shut down” an SNS.[33] He warned that the Court “should be deeply concerned about setting a precedent that could create a slippery slope toward global government censorship of social-media speech” with the most extreme care.[34]

(2)  Case Brief

Petitioners are ByteDance Ltd. and TikTok Inc. with two sets of TikTok users, arguing the Act’s TikTok-specific prohibitions and the divestiture requirement impose a disproportionate burden on such as content moderation, content generation, access to a distinct medium for expression, thus violating the First Amendment.

While the Court admitted that the Act is different from the normal regulations of non-expressive activity in many ways—especially, the Act focuses on a foreign adversary government—the Court assumed without deciding that the Act was subject to First Amendment scrutiny.[35] Then, the Court concluded that the Act is content neutral because it neither “target particular speech based upon its content,” nor imposes “a ‘restriction, penalty, or burden’ by reason of content on TikTok[36]. The Court took the Government’s justification that the aim of the Act is “preventing China from collecting vast amounts of sensitive data” into account, concluding it is content neutral as the justification does not relate to the content.[37]

Roughly speaking, content-neutral regulations are examined by the intermediate scrutiny standard.[38] It applies to this case too; the Court clearly concluded that the Act does not trigger strict scrutiny. The Court admitted that if a regulation discriminates some speakers from others among media, and if the legislator’s speaker preference reflects a content preference, it presents “serious First Amendment concerns.”[39] However, the Court concluded that the purpose of the Act doesn’t include “a subtle means of exercising a content preference” because of its special characteristics focusing on the foreign adversary’s ability, which justifies different treatment on TikTok, so did deny the Court petitioner’s request for strict scrutiny and state no more than intermediate scrutiny is enough.[40]

Then, the Court evaluated the Act’s prohibitions and divestiture requirement to prevent the Chinese government’s capturing the American’s personal data through ByteDance “qualifies as an important Government interest under intermediate scrutiny” because the Act does not burden “substantially more speech than necessary to further that interest.”[41] The Court focused on the ban addressing delicate “national security and foreign policy concerns” and thus afforded “the Government’s ‘informed judgment’ substantial respect. A regulation can satisfy the intermediate scrutiny standard “‘so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation’ and does not ‘burden substantially more speech than is necessary’ to further that interest,” and the Act’s provisions clearly serve to the Government’s interests “in a direct and effective way” so satisfies the intermediate scrutiny.[42]

(3)  Analysis: How has the Supreme Court assessed national security interests so far?

The Court’s decision to hold that the Act does not violate its users’ First Amendment rights surprised many people. First Amendment experts expected that the Act could be shot down by the courts given longstanding Supreme Court precedent protecting First Amendment rights; they assumed the Act would infringe on the right.[43] The battle pursuing the appropriate balance between the First Amendment rights and the national security interests has continued for decades. Why was the TikTok ban considered constitutional? Was it because of control by “foreign adversary” or because of its algorithm? I examined whether the TikTok case was in alignment with the stream of precedent that balanced national security interests and the First Amendment.

A. Members of City Council v. Taxpayers for Vincent

A group of election supporters and a sign corporation challenged an ordinance by Los Angeles prohibiting signs on public property, claiming it violated their First Amendment rights.[44] The Ninth Circuit deemed the ordinance unconstitutional on its face because the ordinance was overly broad and not the least restrictive way to achieve the city’s esthetic interest.[45] Nevertheless, the Supreme Court determined that the case was not suitable for a facial overbreadth challenge, as the ordinance did not affect third parties’ free speech in a manner different from that of the appellees.[46] The court concluded that the city’s objective of reducing visual clutter was a sufficient governmental interest that justified the content-neutral ban, and the restriction on speech was found to be narrowly tailored.[47]

However, Justice Brennan, Justice Marshall, and Justice Blackmun stated in their dissent that national security interests listed along with public health and public safety as “objective grounds” compared to aesthetic state interest that “creates difficulties for a reviewing court” in judging if government regulation does not trespass upon protections secured by the First Amendment” because judging whether the disputed matter is aesthetic or not is unavoidably subjective.[48] Such subjectivity “makes it all too easy for the government to fashion its justification for a law in a manner that impairs the ability of a reviewing court.”[49] The Justices warned that the Court “must avoid unquestioned acceptance of the City’s bare declaration of an aesthetic objective” so that the Court would not “fail in our duty to prevent unlawful trespasses upon First Amendment protections.”[50] This is one example of a case where opinions were divided over which government interests are objective and which are subjective concerning content-neutral regulations.

B. Brown v. Glines

An Air Force captain was removed from active duty after distributing petitions without approval from the base commander, violating Air Force Reg. 35-15 (3)(a)(1).[51] The captain argued the regulation violated the First Amendment and 10 U.S.C.S. § 1034 which protects servicemembers’ rights to communicate with Congress without official channels.[52] Though the district court and the court of appeals supported the captain, the Supreme Court reversed, holding that military discipline justified reasonable speech restrictions.[53] The regulation was deemed valid as it only limited speech necessary to maintain military effectiveness, not more than was reasonably necessary to protect the substantial government interest in securing military effectiveness thus violating neither the First Amendment nor § 103.[54]

The Supreme Court denied the captain’s complaint, holding that the Air Force Regulations do not impose restrictions on speech beyond those reasonably necessary to protect a substantial government interest.[55] The Air Force Regulations implement the Department of Defense Directive, which protects “right of expression . . . to the maximum extent possible, consistent with good order and discipline and the national security.”[56] The Air Force Regulations also prohibit commanders from interfering with the circulation of any materials other than those posing “a clear danger to military loyalty, discipline, or morale;” they specifically cannot interfere with material critical of the government or its policies.[57] The Regulations also permit the “[d]istribution of publications and other materials through the United States mail.”[58] The Court held that such regulations limiting speech do not violate the First Amendment.[59]

However, as in Members of City Council v. Taxpayers for Vincent, the Court’s position on government regulation in the interest of national security was once again split. Justice Brennan dissented, warning that the concept of national security or military necessity is so “seductively broad and has a dangerous plasticity” as to always seem high priority.[60] Accordingly, “[t]here is always a temptation” for the government to use this justification to encroach upon First Amendment rights, and the Court should examine the military-security argument with “a healthy skepticism.”[61]

C. Holder v. Humanitarian Law Project

In this case, the Court confirmed that it had the authority to review the Government’s national security determinations, but also acknowledged that substantial deference should be given to the Government’s judgment. The plaintiffs—two U.S. citizens and six organizations that wished to provide legal, non-violent support to the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)—challenged 18 U.S.C. § 2339B, which prohibited providing “training” and “expert advice or assistance.”[62] PKK and LTTE were designated as “foreign terrorist organizations” by the Secretary of State.[63] The plaintiffs argued that § 2339B was impermissibly vague, thereby violating the Fifth Amendment and infringing their First Amendment rights.[64] The Court concluded that § 2339B was neither impermissibly vague nor in violation of the First Amendment because the law did not prohibit independent advocacy.[65] The Court deferred to the judgment of Congress and the Executive Branch that even seemingly innocent support for a foreign terrorist organization could further its terrorist activities.[66]

In this case, the Court was confident in its ability to review the Government’s asserted authority and expertise in matters of national security, stating that the Government’s interests “do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”[67] At the same time, the Court acknowledged its limited competence in collecting evidence and drawing factual inferences in the national security context. The Court’s decision must often rest on the Government’s informed judgment rather than concrete evidence; thus, “respect for the Government’s conclusions is appropriate.”[68]

Especially when addressing a “preventive measure” aimed at preventing foreign terrorist attacks in the context of international affairs, the Court deferred to the Government’s empirical conclusions because “[t]he Government … is not required to conclusively link all the pieces in the puzzle” before the Court gives weight to those conclusions.[69] The Court gave substantial deference to the Government’s empirical conclusions because sensitive matters of national security and foreign affairs weigh heavily on Congress and the Executive in determining which activities pose serious risks to U.S. foreign policy.[70] The Court found that the number of designated organizations was limited by the Executive Branch’s designation process, and Congress “has also displayed a careful balancing” of competing interests between First Amendment rights and national security interests by clarifying the disputed terms and developing limited exceptions.[71] Citing the Framers’ words, the Court held that “Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments” by regulating the particular forms of support provided to foreign terrorist organizations. The Court relied on this evidence to support the Government’s argument.[72]

D. Analysis

There has been a split in opinions about the ability of the Court to review the Government’s interest in national security. Though national security is relatively objective rather than something as vague as aesthetic sensibilities, the Court itself acknowledged that it does not have perfect competence to review national security interests. Nevertheless, in the above cases, the Court recognized the Government’s interests. The court’s judgment in TikTok v. Garland presumably aligns with precedent because (1) TikTok’s “algorithms” were engineered in the “foreign adversary” (it is completely impossible for the Court to closely examine the actual mechanism of its algorithms) and (2) the law’s objective is a “preventative measure” against control from such an adversary Government. In addition, while not explicitly stated, the fact that the expressions on TikTok can also be made on other non-China-based platforms is likely to contribute to thedecision for this case.

III.           What will happen in the world: Speech-Platform Cold War surrounding Chinese Apps

What Trump will do is likely to invite a chain reaction from like-minded countries. In 2020, India embarked on the first TikTok ban in the world, and Trump highlighted India’s ban in his Executive Order. The present digital world is so tightly connected that if highly confidential military information is leaked from a U.S. ally country, this may badly affect the U.S. and other allies.

However, the chain of such “U.S.-way” will polarize the world’s digital expressions into “on U.S.-made platform or not,” and may fuel the Tech Cold War. There is also an inherent risk that overly drastic measures to address national security concerns may cause an ironic result. Urgency may legally allow democratic governments to take too strong of measures, such as allowing the governments to access the database to “ensure” national security. I am introducing an interesting example in India.

India

Ahead of the U.S., India banned TikTok and 58 other Chinese apps in 2020 even though India is TikTok’s biggest foreign market with an estimated 120 million users.[73] Trump cited India’s ban in his executive order.[74] Territorial disputes with China, in which twenty Indian and four Chinese soldiers were killed, led India to ban Chinese apps as a countermeasure.[75] The Indian government warned that these apps stole and transmitted users’ data in an unauthorized manner and cited privacy concerns and threats to India’s sovereignty and security.[76] Though TikTok content in India was unique in its hyperlocal aspect, since the ban, Indian content creators and users have moved on to other “U.S.” platforms.[77] After the ban, Indian alternative platforms such as MX Taka Tak and Moj were launched. Still they were soon replaced by the U.S. tech giant’s platforms, such as Instagram Reels and YouTube Shorts.[78] Though TikTok did not pursue legal action against the ban in India, Pahwa, a digital policy expert and founder of tech website MediaNama, pointed out that the situation surrounding freedom of speech in the U.S. and in India is very different in the sense that the U.S. is a bigger market for TikTok and the U.S. First Amendment is pretty strong.[79]

India’s cybersecurity law has become more like  China’s. Section 69 of the IT Act allows the government to require data to be stored in India and to issue directions for interception, monitoring, or decryption of individuals in India for the security interest, which enables law enforcement to access and use data easily.[80] This causes ironic concerns in India that people might be arrested for merely posting information on the Internet. To secure India’s security against China, India’s new law has become, ironically, similar  China’s.

Conclusion

It is difficult and meaningless to predict at this time what the Trump administration will do after the 75-day pause of the TikTok ban. Modern digital speech is now thriving on platforms including SNS. However, if those platforms are foreign-made “black boxes,” it will be challenging for First Amendment rights to override the government’s interests in national security in the courts. Given the recent dramatic advancements in artificial intelligence technology, the ability of courts to review the regulation of speech on digital black boxes is likely to become increasingly tenuous, and constitutional protection is likely to become weaker.

In addition, the major platforms today are bifurcated into U.S.-made or Chinese-made platforms, and the TikTok ban law has once again reminded us of the intensity of the information and technology cold war between these two giants. This divide is not limited to the U.S. and China alone but has spread to each side’s like-minded countries. The U.S. allies use U.S.-made platforms, even non-local ones, while China’s friends use China-made platforms. Which side a nation belongs to determines the platform on which this nation’s citizens develop their discourse. Now that online speech itself belongs to different worlds, will the day ever come when a second Malta Summit will be held?

---

[1] TikTok is operated in the U.S. by TikTok Inc., an American company headquartered in California. TikTok Inc.’s parent company is ByteDance Ltd., operated in China. 

[2] See Recent Case: U.S. WeChat Users Alliance v. Trump,  Harv. L. Rev. Blog

, Oct. 2020), https://harvardlawreview.org/blog/2020/10/recent-case-_u-s-wechat-users-alliance-v-trump_/ .

[3] See Chris Iorfida, Trump’s TikTok flip-flop: The U.S. president-elect’s social media evolution, CBC News (Jan 16, 2025, at 12:59 PM CST), https://www.cbc.ca/news/world/trump-tiktok-timeline-1.7432843.

[4] See supra note 2.

[5] Exec. Order No. 13944, 85 FR 49929 (2020), https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-addressing-threat-posed-tiktok/.

[6] See Microsoft says failed TikTok acquisition was ‘strangest thing’, BBC

 (Sep 28, 2021),  https://www.bbc.com/news/technology-58719674.

[7] Id.; See also H. Comm. on Energy & Com. , 118th Cong. 3, Full Committee Hearing Memo: TikTok Hearing, , = (March,20, 2023), available at https://d1dth6e84htgma.cloudfront.net/Memo_03_23_2023_Full_Committee_Tik_Tok_Hearing_55e129f043.pdf.

[8] See Donald Trump-era ban on TikTok dropped by Joe Biden, BBC (June 9, 2021), https://www.bbc.com/news/technology-57413227 [https://perma.cc/8NJ3-3VQD]; Exec. Order No. 14,034, 86 Fed. Reg. 31,423 (June 11, 2021). 

[9] Id.

[10] Chair Rodgers to TikTok CEO: “Your Platform Should be Banned”, H. Comm. on Energy & Com. (Mar. 23, 2023), https://energycommerce.house.gov/posts/chair-rodgers-to-tik-tok-ceo-your-platform-should-be-banned [https://perma.cc/8UTU-966J].

[11] See Committee Majority Staff supra note 7, at 2.

[12] Id.

[13] See Sonal Gupta, TikTok Ban Looms in the US: Why India Banned it 5 Years Ago, What Happened Then, The Indian Express (Jan. 17, 2025 at 22:26 IST), https://indianexpress.com/article/explained/tiktok-ban-us-india-comparison-china-9784402/ [https://perma.cc/QM25-Y5YR].

[14] Brian Fung,Biden Just Signed a Potential TikTok Ban into Law. Here’s What Happens Next, CNN Business (April 24, 2024, at 11:23 EDT) https://www.cnn.com/2024/04/23/tech/congress-tiktok-ban-what-next/index.html [https://perma.cc/VV6T-8GCK]

[15] See Sapna Maheshwari & David McCabe, Congress Passed a Bill That Could Ban TikTok. Now Comes the Hard Part, N.Y. Times (April 23, 2024) https://www.nytimes.com/2024/04/23/technology/bytedance-tiktok-ban-bill.html?searchResultPosition=1 [https://perma.cc/KBV8-7DZB]; TikTok Inc. v. Garland, 604 U.S. 56, 65 (2025).

[16]  H. Comm. on Energy & Com. , 118th Cong. 3, Full Committee Hearing Memo: TikTok Hearing,3 (March,20, 2023), available at https://d1dth6e84htgma.cloudfront.net/Memo_03_23_2023_Full_Committee_Tik_Tok_Hearing_55e129f043.pdf [https://perma.cc/BH33-9HCQ].

[17] See supra note 2.

[18] See supra note 15.

[19] See supra note 14.

[20] See Zeke Miller et al., Biden won’t enforce TikTok ban, official says, leaving fate of app to Trump, AP News (Jan 17, 2025) https://apnews.com/article/tiktok-ban-trump-executive-order-1e95d9836bf6f8c0c245ed1c3234d968 [https://perma.cc/E36Y-9R4C].

[21] Id.

[22] See Kurt Wagner, TikTok CEO joins Trump’s inauguration as app’s future remains in doubt, Financial Post (Jan 20, 2025) https://financialpost.com/news/tiktok-ceo-joins-trumps-inauguration.

[23] See Bobby Allyn, Trump signs executive order to pause TikTok ban, provide immunity to tech firms, NPR (Jan 20, 2025, at 20:22 ET) https://www.npr.org/2025/01/20/nx-s1-5268701/trump-executive-order-tiktok-ban [https://perma.cc/LH8R-M2VJ].

[24] See APPLICATION OF PROTECTING AMERICANS FROM FOREIGN ADVERSARY CONTROLLED APPLICATIONS ACT TO TIKTOK, White House (Jan 20, 2025) https://www.whitehouse.gov/presidential-actions/2025/01/application-of-protecting-americans-from-foreign-adversary-controlled-applications-act-to-tiktok/ [https://perma.cc/4BDG-BCC6].

[25] See supra note 20.

[26] See supra note 3.

[27] See supra note 23.

[28] Id.

[29] See Sapna Maheshwari et al., Tech’s TikTok Dilemma: Follow the Law or President Trump?, N.Y. Times (Jan. 25, 2025), https://www.nytimes.com/2025/01/24/technology/tiktok-ban-trump-amazon-apple-google.html [https://perma.cc/T47V-NT39].

[30] Id.

[31] See Brief of President Donald J. Trump as Amicus Curiae Supporting Neither Party at 4-5, TikTok Inc. v. Garland, 246 U.S. 656 (2024) (Nos. 24-656, 24-657).

[32] Id. at 2.

[33] Id. at 6.

[34] Id. at 16.

[35] TikTok Inc. v. Garland, 604 U.S. at 69.

[36] Id. at 1.

[37] Id. at 12-15.

[38] See Cornell Law School Legal Information Institute, intermediate scrutiny  https://www.law.cornell.edu/wex/intermediate_scrutiny.

[39] TikTok Inc. v. Garland, 604 U.S. at 15.

[40] Id. at 15-16.

[41] Id. at 16.

[42] Id. at 19-22.

[43] See supra note 14.

[44] Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 792-93, (1984).

[45] Id. at 796.

[46] Id. at 801.

[47] Id. at 809.

[48] Id. at 821-22.

[49] Id. at 822.

[50] Id. at 823-24.

[51] Brown v. Glines, 444 U.S. 348, 349(1980)

[52] Id.at 349.

[53] Id.at 355.

[54] Id.at 355.

[55] Id.

[56] Id.

[57] Id.

[58] Id. (quoting Air Force Reg. 35–15(3)(a)(1) (1970)).

[59] Id.

[60] Brown v. Glines, 444 U.S. 348, 369, 100 S.Ct. 609, 614 (1980) (Brennan, J., dissenting).

[61] Id.

[62] Holder v. Humanitarian L. Project, 561 U.S. 1, 10, 14 (2010).

[63] Id., at 9.

[64] Id., at 14.

[65] Id., at 20, 24, 39.

[66] Id., at 29, 33, 36.

[67] Id., at 34.

[68] Id., at 34–35.

[69] Id. at 2728

[70] Id. at 2728

[71] Id. at 2728

[72] Id. at 2731

[73] See India bans TikTok, WeChat and dozens more Chinese apps, BBC (June 29, 2020), https://www.bbc.com/news/technology-53225720 [https://perma.cc/PES5-2YFA].

[74] See Exec. Order No. 1394, supra note 5.

[75] See Iorfida, Trump’s TikTok flip-flop, supra note 3; Krutika Pathi, Here’s what happened when India banned TikTok, PBS NEWS (Apr. 24, 2024, at 11:30 EST) https://www.pbs.org/newshour/world/heres-what-happened-when-india-banned-tiktok.

[76] See supra note 3.

[77] See supra note 75.

[78] See Diksha Madhok, What happened when the world’s most populous nation turned off TikTok, CNN Business (Mar.15, 2024, at 9:59 EDT) https://www.cnn.com/2024/03/14/tech/india-us-tiktok-ban-analysis-intl-hnk/index.html.

[79] Id.

[80] See Madison Clausius, NOTE: THE BANNING OF TIKTOK, AND THE BAN OF FOREIGN SOFTWARE FOR NATIONAL SECURITY PURPOSES, 21  Wash. U. Global Stud. L. Rev. 273, 282-284; See also Cybersecurity Laws and Regulations India 2025, iclg (June 11, 2024) https://www.lexorbis.com/cybersecurity-laws-and-regulations-india-2025/.