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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3. Online ‘gangsta rap’ discussion wasn’t real…

Law Firms

Online ‘gangsta rap’ discussion wasn’t real reason for McCarter associate’s firing, suit alleges

By Debra Cassens Weiss

January 7, 2025, 12:30 pm CST

A former McCarter & English staff associate alleges that the law firm subjected him to a hostile workplace based on his status as a military combat veteran and fired him on the pretext of violating the firm’s social media policy.

Lawyer William D. Brown Jr., a former Navy SEAL who served in the Iraq War, said he was actually fired for complaints about unequal pay and his push to include veterans in the firm’s diversity, equity and inclusion efforts.

Law.com has coverage of the Dec. 24 lawsuit (previewed here), filed in Essex County, New Jersey, superior court.

Brown said he made $100,000 per year in 2023 after six years at the firm as a career bankruptcy associate, compared to $170,000 in base pay for newly hired regular associates. His bankruptcy work was trimmed after a new chairman took over, and he was assigned to child sexual-abuse defense work despite his distaste for the matters, the suit says.

The LinkedIn post that purportedly led to his firing discussed the glorification of violence and drugs in “gangsta rap” lyrics and “radical culture within the Islamic world” that glorifies violence, Law.com previously reported. The firm said the post promoted negative stereotypes of Muslim and Black Americans.

Brown claimed that there were separate standards of conduct at McCarter & English in its interaction with employees “who adhered to political left orthodoxy” and those “who happened to not endorse the same leftist worldview.”

Brown cited an incident in which a tax partner asked him how many people he had killed. The partner later apologized. But the question led Brown to think that rather being perceived as an honorable person who served his nation, he was “feared, loathed and discounted as a mere ‘killer,’” the suit says.

Brown also said a partner asked him “if he was mentally sound” after he asserted on LinkedIn that veterans are paid less than others for substantially the same work and denied opportunities when they speak up for themselves.

A McCarter & English spokesperson provided a statement to Law.com.

“As always with an initial complaint, it tells one side of the story,” the statement said. “Once the full history is brought to light, we are confident we will be fully vindicated. We intend to defend this case against the firm and clear the names of those individuals referenced within the complaint.”

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3. Wife convicted of murdering prominent attorney…

Criminal Justice

Wife convicted of murdering prominent attorney husband claimed to reveal real killer at her sentencing

By Debra Cassens Weiss

December 9, 2024, 1:04 pm CST

A Georgia woman convicted of murdering and burning the body of her husband, a prominent Atlanta-area attorney, was sentenced to life in prison after a Dec. 5 sentencing hearing in which she claimed that the real killer was the man’s son.

Melody Walker Farris, 64, of Georgia was convicted last month for the 2018 murder of lawyer Gary Wayne Farris, who was the 58-year-old managing partner of the Atlanta office of midsize law firm Burr & Forman at the time of his death, Law360 reports.

Gary Wayne Farris was the chair of Burr & Forman’s lending practice and a member of the executive committee, the article reports. He was a graduate of the University of Alabama School of Law.

Publications with coverage besides Law360 include Court TV, WXIA-TV, Courthouse News Service, Fox 5 Atlanta and the Independent.

Witnesses said Farris had two affairs before her husband’s death at their farm in Alpharetta, Georgia. She and her husband had also argued about money, and she stood to benefit if he died, prosecutors said. The Independent cited a report by the Cherokee Tribune & Ledger News that Farris was the beneficiary of a $2 million life insurance policy.

During the sentencing hearing, Farris said she has kept the real killer’s identity secret for six years. Courthouse News Service reported on her words.

“I want the world to know who did this. Not only did I not do this, I know who did,” Farris said. “I know Scott killed his father.”

Farris said her mother had advised her to take the blame for the killing, but she would no longer protect her son Scott Farris. Farris said she saw Scott Farris coming from the burn pile, where the remains had been found, and described other circumstances that she found suspicious.

The defense previously suggested that Scott Farris could be involved in the murder because he was missing a gun that had the same kind of bullets used in the killing, according to Courthouse News. Defense lawyer Michael Ray said investigators did not search for evidence in Scott Farris’ room, which was filthy in contrast to his spotless bathroom.

Investigators first thought that Gary Wayne Farris may have fallen onto the burn pile during a medical emergency. They later found a bullet in his rib cage.

Hunter Biden’s legal team released a report over the weekend that included a “stark warning” that the first son may face retribution at the hands of incoming President-elect Donald Trump. With the election of the 45th and soon-to-be 47th president, the “threat against Hunter is real,” his lawyers claim. The report was released on Saturday ahead of President Joe Biden issuing a full federal pardon for his son on Sunday night.

The 52-page report, obtained by the Washington Post and Washington Examiner, laid out the criminal prosecutions that led to convictions for Hunter Biden.

“Here, in one place, is the complete and reprehensible history of the political persecution of Hunter Biden,” one of Biden’s lawyers, Abbe Lowell, said in a statement. “This is a seven-year saga propelled by an unrelenting political desire to use a son to hurt his father.”

More coverage from Law&Crime: ‘Unprofessional and unwarranted hostility’: Ex-Overstock CEO says Hunter Biden’s request for sanctions violates court rules and is ‘factually and legally baseless’

With Trump coming to power in January, things could have become dicey for the president’s son if he weren’t pardoned. Per the Post, the report contains a timeline of the allegations against Hunter Biden.

“It is a wild and terrifying story that serves as a stark warning of what is to come as some of the same Republicans who targeted Hunter prepare to resume power and have stated their intention to use the government’s vast power to pursue their perceived enemies,” Lowell said.

Hunter Biden could have faced serious jail time for crimes ordinary citizens would not be prosecuted, his lawyers argue.

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3. Florida can’t enforce law blocking real estate…

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.

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3. Disbarred lawyer married to ‘Real Housewives’…

Criminal Justice

Disbarred lawyer married to ‘Real Housewives’ star found competent to stand trial for alleged $15M embezzlement

By Debra Cassens Weiss

January 4, 2024, 2:24 pm CST

Disbarred plaintiffs lawyer Tom Girardi has been found competent to stand trial in Los Angeles for allegedly stealing $15 million from clients.

U.S. District Judge Josephine Staton of the Central District of California noted the competency finding in a docket entry, report Law.com, Law360 and Reuters. His lawyers have said he suffers from dementia.

Girardi, 84, is the estranged husband of Erika Girardi, who appeared on The Real Housewives of Beverly Hills reality TV show. He was also an adviser to the movie Erin Brockovich and part of the successful legal team portrayed in the film that sued over contaminated groundwater. He currently lives in an assisted living facility.

Girardi is accused of stealing more than $15 million in Los Angeles. In Chicago, he is accused of misappropriating more than $3 million in settlement funds for five relatives of victims killed in the October 2018 crash of Indonesia’s Lion Air Flight 610.

Staton’s competency order is under seal. She has asked the parties to identify which parts of her order should remain sealed.

Girardi and his former law firm, Girardi Keese, have been forced into bankruptcy, according to Law360.

“Since Girardi Keese went bankrupt,” the article reports, “the trustee has filed over 100 complaints against casinos, former Girardi Keese employees and other law firms and companies, seeking a total of more than $140 million.”

See also:

“Ex-lawyer Tom Girardi lashes out at prosecutor in competency hearing; brain shrinkage reported”

“State bar finds ‘shocking past culture of unethical and unacceptable behavior’ in its handling of Girardi complaints”

“More than 1,700 California lawyers suspended for failure to comply with new trust account rules”