Judge Srinivasan’s Alternative Justification for the TikTok Divestiture Mandate in Light of First Amendment Concerns

Chief Judge Srinivasan’s concurring opinion in TikTok, Inc. v. Garland emphasizes the historical precedent for restricting foreign ownership and control of communication mediums in the United States. He traces this history from the Radio Act of 1912, which limited radio licenses to U.S. citizens and companies, through the Radio Act of 1927 and the Communications Act of 1934, which extended these restrictions to encompass foreign control, driven by concerns about espionage and propaganda. These restrictions continue to this day, applying to both wireless and wired communication infrastructure. Judge Srinivasan argues that this long-standing regulatory tradition, while not dating back to the founding era, is directly relevant to the TikTok case, informing the appropriate level of scrutiny applied to the First Amendment challenge. The FCC’s recent actions against U.S. entities under Chinese control, affirmed by the courts, further solidify this historical and legal framework.

Judge Srinivasan addresses the First Amendment implications of the divestment mandate targeting TikTok, acknowledging that foreign entities operating abroad do not possess First Amendment rights. He notes that while TikTok Inc., a U.S. subsidiary, does hold such rights, the potential editorial decisions influenced by the Chinese government would originate abroad. Post-divestment, TikTok Inc. could, theoretically, maintain its current editorial policies. However, the divestment mandate impacts the First Amendment rights of American TikTok users and creators, who face the potential loss of the platform or alterations to its functionality if divestment fails or succeeds, respectively. Nevertheless, Judge Srinivasan concurs with the majority’s view that the potential for the Chinese government to exploit TikTok for data harvesting and covert content manipulation justifies the mandate.

The Judge asserts that the government’s rationale for the divestment mandate, centered on data protection and preventing covert content manipulation, satisfies intermediate scrutiny. He argues that the data protection rationale is content-neutral, while the concern about content manipulation, though speech-related, does not discriminate based on the content itself. The government’s objective is to prevent manipulation regardless of the specific message. He illustrates this by suggesting that the Chinese government could manipulate content to promote either pro-China or anti-China narratives, depending on its strategic objectives. This focus on manipulation, rather than specific viewpoints, distinguishes the case from content-based restrictions that would trigger strict scrutiny.

Judge Srinivasan differentiates this case from Lamont v. Postmaster General, a case relied upon by the petitioners. In Lamont, the Supreme Court struck down a law requiring individuals to affirmatively request delivery of mail deemed "communist political propaganda," finding this violated First Amendment rights. He emphasizes that the TikTok case doesn’t involve any such affirmative obligation to access content, nor does it target specific viewpoints like "communist political propaganda." Instead, the core concern is covert manipulation, an issue absent in Lamont. Furthermore, unlike the readily countered overt propaganda in Lamont, covert manipulation on a social media platform is significantly harder to detect and counter through traditional means like counterspeech.

The Judge emphasizes the gravity of the competing interests at stake: the expressive rights of millions of American TikTok users and creators versus the national security concerns raised by the potential for Chinese government influence. Congress, recognizing these competing interests, chose divestment as a means to mitigate the security threat while preserving the platform for American users. However, this approach carries the risk of the app becoming unavailable if a suitable divestment cannot be achieved.

Judge Srinivasan concludes that Congress, after careful consideration and following established regulatory practices, deemed this risk necessary given the perceived national security threat. He underscores that Congress’s decision was not motivated by a desire to suppress particular messages or viewpoints but rather by legitimate national security concerns. Therefore, the court upholds the divestment mandate, recognizing the delicate balance between preserving free expression and protecting national security in the context of a globally influential social media platform. The historical precedent for regulating foreign influence over communication mediums, coupled with the specific concerns about data security and covert manipulation, justify the government’s actions in this complex and evolving digital landscape.