The U.S. Supreme Court’s decision on Jan. 17 upholding the federal law banning TikTok continues a long history of judicial deference to claims of national security. The ruling upholds a federal statute that bans a medium of communication that is used by more than 170 million people in the United States. The speech of all who generate content for it and all who receive it is restricted by this law. It is difficult to think of any law in American history that restricted so much speech for so many people.

TikTok stopped operating in the United States for a brief time after the court’s decision. Upon taking office, President Donald Trump issued an executive order delaying the TikTok ban from going into effect for 75 days. It is questionable whether he has the authority to do this under the federal statute. But if no court enjoins his order, TikTok at least has a temporary reprieve. The ultimate fate of TikTok in this United States remains uncertain.

Factual background

On April 24, 2024, President Joe Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act into law. The act identifies the People’s Republic of China and three other countries as foreign adversaries of the United States and prohibits the distribution or maintenance of “foreign adversary controlled applications.” The law prohibited TikTok in the United States as of Jan. 19, unless its owner, ByteDance, had sold it by then.

Under the law, the president may grant a 90-day extension if there is significant progress being made toward a sale of TikTok. ByteDance has given no indication that it is interested in a sale, so it is difficult to see President Trump’s action fitting within this statutory authority.

On Dec. 6, 2024, the U.S. Court of Appeals for the District of Columbia Circuit upheld the federal law outlawing TikTok. The judges acknowledged the impact of the law on freedom of speech, but they accepted the government’s argument that national security concerns justified the ban.

First, the court said China, through TikTok, could gather information about those in the United States. Second, the court said China could attempt to use TikTok to influence attitudes, including about politics, in this country.

Supreme Court decision

The Supreme Court granted certiorari and scheduled oral argument for Jan. 10. A week later, the court unanimously affirmed the D.C. Circuit in a per curiam opinion.

At the outset, the court said there was the question of whether “heightened review” was appropriate when there was a regulation of nonexpressive activity (ownership of a platform) that disproportionately burdens those engaged in expressive activity (those who post on TikTok and receive information there). The court did not resolve that issue, instead declaring, “We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny.”

The court began by reciting the familiar principle that content-based regulations must meet strict scrutiny, while content neutral laws only need meet intermediate scrutiny. Under strict scrutiny, a law must be necessary to achieve a compelling purpose, while under intermediate scrutiny, a law only need be substantially related to an important purpose. A law is deemed content-based if either it restricts speech based on its topic or its viewpoint.

The court said that “As applied to petitioners, the challenged provisions are facially content neutral and are justified by a content-neutral rationale.” The court explained that the federal statute was content- neutral because it prohibited all speech over TikTok in the United States, whatever its topic and whatever its viewpoint.

The court identified the government’s purpose as preventing China, a foreign adversary, from gathering large amounts of information on Americans using the platform. And it expressly declared that this was a sufficiently important interest to meet intermediate scrutiny: “The act’s prohibitions and divestiture requirement are designed to prevent China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users. This objective qualifies as an important Government interest under intermediate scrutiny.”

The court said China could gather vast amounts of information about users of TikTok that could include enabling “China to track the locations of federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.” The court stressed that the case arose in the context of “national security and foreign policy,” and therefore concluded that “we must accord substantial deference to the predictive judgments of Congress.”

Notably, the court did not echo the D.C. Circuit’s conclusion that the TikTok ban was justified because China might use it to influence attitudes in the United States. The premise of the First Amendment is that more speech is inherently better, regardless of its source. Restricting speech because it might change minds is antithetical to the First Amendment. Even during the height of the Cold War, the United States allowed the Russian newspaper Pravda to be sold in this country.

The challengers argued that the purpose of the federal law was to prevent TikTok to be used to convey particular views. The court acknowledged that no prior cases had determined “the appropriate level of First Amendment scrutiny for an act of Congress justified on both content-neutral and content-based grounds.”

The court said it did not need to decide that issue, but then effectively did by declaring: “The record before us adequately supports the conclusion that Congress would have passed the challenged provisions based on the data collection justification alone.” This is an important clarification of First Amendment law: If a government action is justified by both content-based and content-neutral rationales, it will be treated as content-neutral so long as the court is convinced that the law would have been adopted anyway based on the content-neutral rationale.

Justice Sonia Sotomayor concurred in part and concurred in the judgment. She agreed with the decision but said the court should have held, not just assumed, that the ban on TikTok is expressive activity. She said, “TikTok engages in expressive activity by ‘compiling and curating’ material on its platform.”

Justice Neil Gorsuch concurred in the judgment. He questioned whether the law was actually content-neutral but said it was constitutional under any level of scrutiny. He wrote: “I am persuaded that the law before us seeks to serve a compelling interest: preventing a foreign country, designated by Congress and the president as an adversary of our oation, from harvesting vast troves of personal information about tens of millions of Americans.”

Analysis

No one in the litigation disputes that TikTok can gain a great deal of information about users of its platform. Nor was it disputed that this information potentially could be obtained by China.

What is missing in the court’s analysis is a discussion of what information China can obtain and how that information can be used to damage national security. It is certainly true that every app allows those administering it to gather information about users. But knowing how many people are watching a dance video hardly seems a basis for endangering the country. Because the federal law is a very significant restriction on speech there must be a real, proven danger, not conjecture.

None of the briefs elaborates this, either. Nor is it the case that the court relied on secret information provided by the government to justify the law. Justice Gorsuch observed: “I am pleased that the court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel.”

The court should have explained in much greater detail what information China could gain from TikTok users and how China possessing this information could harm the United States.

Ultimately then, what explains the court’s conclusion is not a proven likely harm to national security from TikTok. Rather, it is the court giving deference to the government’s claim that TikTok is a threat to national security. There have been many cases throughout American history where the court has professed such deference. But the crucial question is whether such deference is appropriate when it involves a major restriction on the exercise of a fundamental right.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Judiciary

Does judge’s reference to ‘little Chinese woman’ show bias? Appellate concurrence sees ‘pure stereotyping’

By Debra Cassens Weiss

December 19, 2024, 1:42 pm CST

A California judge who said he was almost amused when a “little Chinese woman” stared him down did not rule against her based on ethnic bias, but his comment was “pure stereotyping,” according to two concurring judges in an appellate opinion.

The California Courts of Appeal’s Second Appellate District certified the Nov. 27 opinion for publication Dec. 17 after receiving requests that it do so from the California Civility Task Force and the Orange County Asian American Bar Association, Law360 reports. Published opinions can be cited as precedent.

The case involved a dispute between the plaintiff, Natalie Lloyd Merrick, and her mother over funds from the sale of a condo in China. Merrick was awarded more than $242,000 from the sale, leading to a dispute over the amount of prejudgment interest.

Judge Randolph M. Hammock of Los Angeles County, California, ruled against Merrick on the interest issue in June 2022 and awarded mandatory attorney fees of about $2,000 to the mother.

During the final hearing, Hammock made these comments: “I already rejected those arguments. OK. I know your client was not happy with my ruling [at a previous hearing]. I mean, she was there, you know, mad dogging me, which didn’t bother me at all. It was almost amusing to see this little Chinese woman stare me down because she didn’t like the ruling. But again, it’s just business. I didn’t take it personally.”

The appeals court opinion by Judge Elizabeth A. Grimes said there is no reason to believe that Hammock harbored any bias against Merrick. She added, however, that “unnecessary references to a litigant’s ethnicity and gender are certainly to be avoided.”

In a concurring opinion, Judge Maria E. Stratton agreed that Hammock’s “gratuitous comments” did not influence his ruling. His findings were supported by evidence, and his decision was based on a realistic evaluation of facts. But his comments “cannot pass without censure,” she said in the concurrence joined by Judge Victor Viramontes.

Stratton asserted that Hammock’s “patronizing description” of Merrick violated judicial canons requiring judges to be dignified and courteous, to act in a manner that promotes confidence in the judiciary, and to refrain from conduct that would reasonably be perceived as biased.

“Beyond being generally demeaning,” Stratton wrote, “the trial judge’s fatuous comment traded on racist and sexist tropes.” Hammock found it almost amusing that Merrick, “a little Chinese woman,” stared him down, she wrote.

“Implicit in the court’s identification of these characteristics as what made Merrick’s conduct funny was the concept that her behavior was incongruous; that is, someone like Merrick was neither expected nor supposed to act in a certain manner. This is pure stereotyping. How should a ‘little Chinese woman’ have acted? Like the stereotype of an Asian woman—demure, meek, eager to please, deferential to men?”

Stratton acknowledged that Hammock’s comment may have been “unwitting” and said such remarks implicate implicit bias, which can influence behaviors without awareness.

Stratton added that “being mindful of the stereotypes we all carry” is part of a judge’s job.

“Reining in impulses, our inner autopilot, to make random comments that personally denigrate a litigant is also part of our job,” she wrote.

Hammock told the ABA Journal that he couldn’t comment because there is no final judgment yet.

Hammock apologized for his conduct to his presiding judge after the appellate opinion was issued.

“Suffice it to state, I am extremely embarrassed and regretful of those comments,” he said in a letter self-reporting his conduct to the judge.

Hammock’s letter said he accepts that his comments violated judicial canons.

“I have certainly thought long and hard as to my actions in this regard, and moreover, I have considered what I need to do myself in order to take the appropriate ‘corrective actions’ needed to ensure that such violations do not occur again by me,” Hammock wrote.

The first step, Hammock wrote, was to self-report. He has also read publications on implicit bias mentioned in the concurrence and plans to take the next judicial course offered on the subject.

“You can rest assured that I will strive to do my best to learn a serious lesson from this incident and to act accordingly,” Hammock wrote. “I must and will do better.”

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Real Estate & Property Law

Florida can’t enforce law blocking real estate purchases by Chinese citizens against 2 plaintiffs, court rules

By Debra Cassens Weiss

February 6, 2024, 1:05 pm CST

A federal appeals court has ruled that a Florida law barring real estate purchases by Chinese citizens can’t be enforced against two plaintiffs while their court challenge continues.

The 11th U.S. Circuit Court of Appeals at Atlanta said the plaintiffs had shown a substantial likelihood of success on their claim that the Florida statute is preempted by federal law. The appeals court blocked enforcement against two plaintiffs with pending real estate transactions.

Reuters and Politico have coverage of the Feb. 1 decision, while the Volokh Conspiracy has highlights.

The federal law establishes a system for security review of real estate purchases by foreign nationals, according to a Feb. 1 press release by the Asian American Legal Defense and Education Fund, which seeks to protect and promote the civil rights of Asian Americans.

The Florida law, Senate Bill 264, generally bars any real-property purchases in the state by any person whose permanent domicile is in China and who is not a U.S. citizen or lawful permanent resident.

People domiciled in other countries “of concern” who are not U.S. citizens or lawful permanent residents may buy Florida property—unless it is within 10 miles of a military installation or critical infrastructure facility.

In a concurrence, Judge Nancy G. Abudu said she agreed that the plaintiffs were likely to prevail on their preemption argument. But she would have also granted the preliminary injunction based on a second ground— that the law likely violates the equal protection clause of the 14th Amendment.

Abudu acknowledged U.S. Supreme Court precedent holding that any state can deny aliens the right to own land within its borders. But the Supreme Court has since called into question that decision, Terrace v. Thompson, and the cases that followed, Abudu said.

Abudu is an appointee of President Joe Biden. Other judges on the panel are Judge Kevin Newsom, an appointee of former President Donald Trump, and Judge Adalberto Jordan, an appointee of former President Bill Clinton.

The case is Shen v. Commissioner, Florida Department of Agriculture.

The plaintiffs are a real estate company and Chinese immigrants who can’t buy a home in Florida, even though they live, work and raise families there.

The plaintiffs are represented by the American Civil Liberties Union, the ACLU of Florida, the DeHeng Law Offices, the Asian American Legal Defense and Education Fund and Quinn Emanuel Urquhart & Sullivan.