## The Ban That Every Justice Upheld ### JD Morris Published Mar 30, 2026 HOW WOULD THE JUSTICES LIKELY RULE | INSTALLMENT 2 TikTok v. Garland and What Nine Unanimous Votes Reveal About the Future of Platform Regulation Brian Firebaugh served in the Marine Corps, then spent years homeless and addicted before getting treatment and taking a job at a hospital. He saved enough to buy a small ranch in Texas. He started posting on TikTok in 2019 — agricultural content, ranch products, charitable work for the ranching community. By January 2025, he had 430,000 followers, income from the TikTok Creator Fund, and a livelihood that the platform had made possible. On the evening of January 18, 2025, TikTok went dark. Firebaugh was not just a user watching the notice appear on his screen. He was a named plaintiff. His lawsuit — consolidated with TikTok’s as Firebaugh v. Garland — had argued that the Protecting Americans from Foreign Adversary Controlled Applications Act violated his First Amendment right to reach an audience through his chosen platform. Jeffrey L. Fisher argued his case before the Supreme Court on January 10, 2025, nine days before the January 19 deadline. On January 17, the Court ruled against him, 9-0. The app came back the next day. Then, over the following year, the thing everyone had been pretending was impossible happened: ByteDance sold TikTok’s U.S. operations. Oracle, Silver Lake, and MGX closed an 80-percent acquisition on January 22, 2026, forming TikTok USDS Joint Venture LLC. Firebaugh is still posting. His 430,000 followers still see his agricultural content. The algorithm the Supreme Court refused to call content-based now runs on American servers. Nine days of deliberation produced not only a ruling on one platform. The per curiam erected a doctrinal framework — incomplete by the Court’s own admission — that will govern every future attempt to restrict a foreign-controlled communications technology on national security grounds. This is the second installment of “How Would The Justices Likely Rule,” a series applying the full arc of Supreme Court history to technology law questions courts are still working out. The question here is not only whether nine justices got TikTok right. It is what their reasoning, their silences, and the one concurrence that said it plainly reveal about where First Amendment protection for platform speech begins and ends. **What the Court Actually Held** Congress passed PAFACA in April 2024 as part of a foreign aid package. The law required ByteDance to divest TikTok or face prohibition on U.S. distribution. Congress found that ByteDance’s Chinese corporate structure gave the Chinese government effective access to data on 170 million Americans and potential control over TikTok’s content recommendation algorithm. The D.C. Circuit upheld the law in December 2024. TikTok and Firebaugh went to the Supreme Court on an emergency basis. The Court took two days to grant certiorari — an extraordinary pace for a body that normally takes months — and heard argument January 10, 2025. The per curiam opinion, issued January 17, upheld PAFACA as constitutional. TikTok Inc. v. Garland, 604 U.S. 56 (2025). The Court assumed without deciding that PAFACA implicates First Amendment rights — deliberately avoiding the threshold question that Thomas and Kagan both pressed at argument — then held that even under First Amendment scrutiny, the law survived because it was content neutral and narrowly tailored to the government’s data-collection security interest. The data collection rationale was ‘decidedly content agnostic.’ Id. at 10. The algorithm-manipulation rationale — whether preventing China from covertly influencing what 170 million Americans see in their feeds is itself a national security interest — was not the operative holding. The Court declined to decide it. Sotomayor concurred but would have held definitively that the Act implicates First Amendment rights rather than assuming it does, citing the platform’s content recommendation algorithm and creator collaboration as protected expression. Id. (Sotomayor, J., concurring). Gorsuch concurred but expressed what he called ‘serious reservations’ about whether the algorithm-manipulation justification was content neutral. He added something the per curiam did not: ‘Given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments and record before us.’ Id. (Gorsuch, J., concurring). That sentence is the most honest line in the opinion. **What the Argument Revealed** The oral argument on January 10, 2025, ran nearly two and a half hours and disclosed the fractures that the per curiam papered over. Chief Justice Roberts told Francisco that Congress ‘doesn’t care what’s on TikTok’ — what it objects to is a foreign adversary gathering information from millions of Americans. That framing resolves the data-collection justification cleanly. It does not resolve the algorithm-manipulation justification at all. Thomas and Kagan pressed the threshold question from the same direction: if the law targets ByteDance, a foreign corporation with no First Amendment rights, how does it implicate TikTok’s First Amendment rights at all? TikTok Inc. is a U.S. corporation, Francisco responded — it retains its own First Amendment rights regardless of its parent’s corporate nationality. The argument is legally sound but the Court ultimately did not need to resolve it, choosing instead to assume First Amendment implication and decide the case on scrutiny. Jackson asked whether the case was really about the right of association — the right to work with a foreign editor — rather than speech itself. Francisco acknowledged the association dimension but maintained the law also violated free speech rights directly. The Court did not adopt Jackson’s framing. It also did not reject it. The association question, like the algorithm-manipulation question, survived the opinion unresolved. **The Justices — What Each Would Write** **John Roberts — The Most Consequential Analysis** Roberts authored the digital-age opinions that frame TikTok: Riley v. California, 573 U.S. 373 (2014), requiring warrants for cell phone searches, and Carpenter v. United States, 585 U.S. 296 (2018), requiring warrants for historical cell site location data. His framework from Carpenter is directly relevant: the third-party doctrine requires reconsideration when digital architecture makes third-party routing a structural condition of communication rather than a deliberate choice. Id. at 310. On TikTok’s specific facts, Roberts would affirm without difficulty. Firebaugh voluntarily posted on a platform whose parent company structure gave the Chinese government data access. Congress documented that access. The law addresses it. The data-collection justification is content agnostic and the law survives scrutiny. What Roberts would write that the per curiam did not: there is a line between Heppner’s voluntary disclosure — the defendant who chose to type his defense strategy into a consumer AI with non-confidentiality terms — and the attorney who uses an enterprise-tier platform with contractual confidentiality protections while government compelled surveillance architecture defeats those terms on the backend. TikTok is on the voluntary side of that line. The FISA Section 702 question — whether government-compelled modification of communication infrastructure creates different doctrinal exposure — sits on the other side. Roberts planted that seed in Carpenter. TikTok does not resolve it. His concurrence in TikTok would signal that it remains unresolved. **Sonia Sotomayor — The Structural Critique** Sotomayor’s actual concurrence in the judgment refused to let the Court assume without deciding that PAFACA implicates the First Amendment. Her argument is not procedural formalism. It is structural: ‘assume without deciding’ is not a stable doctrinal foundation. The next administration that wants to restrict a platform will structure its justification to satisfy whatever the Court assumed without deciding. Future courts will not know whether to apply First Amendment scrutiny at all, because the Court that decided the foundational TikTok case never said. She would have held that the Act implicates First Amendment rights through two mechanisms: Kagan’s editorial-judgment doctrine from Moody v. NetChoice, 603 U.S. 707 (2024), covering TikTok’s algorithm as protected expressive activity; and the associational rights of creators like Firebaugh who chose TikTok as their publisher. Sotomayor, J., concurring, 604 U.S. at 1. Having established First Amendment implication, she would then uphold the law on the national security record. Same result. Honest foundation. **Neil Gorsuch — The Most Candid Opinion** Gorsuch’s actual concurrence is more valuable than most commentary acknowledges. He raised ‘serious reservations’ about whether the content-manipulation justification is content neutral. If the government’s second rationale is that China could covertly manipulate what content gets amplified to 170 million people, that rationale is not content agnostic. It is a government claim to restrict a private editorial system because a foreign adversary might use it to influence American political opinion. Gorsuch called the First Amendment implication of that justification ‘censoring disfavored speech online.’ 604 U.S. at 1 (Gorsuch, J., concurring). He would have applied strict scrutiny to the content-manipulation justification — and found the government satisfied it anyway. But his rationale would have drawn the line that the per curiam avoided: the data-collection justification is content agnostic and survives on straightforward national security grounds. The content-manipulation justification raises First Amendment concerns that require strict scrutiny precisely because it is the government arguing it should control what an algorithm amplifies. That argument has no limiting principle when applied to domestic platforms. Gorsuch planted the flag. The per curiam’s silence did not erase it. **Hugo Black — The Absolutist’s Discomfort** Black spent thirty-four years insisting that ‘Congress shall make no law’ means no law. He would join this majority and document the cost of doing so. His alignment with the result does not require intellectual dishonesty — the law targets corporate ownership by a documented foreign adversary, not the content of speech on TikTok. The data-collection rationale is content agnostic, as the per curiam correctly found. What would have troubled Black: Gorsuch’s concern about the content-manipulation justification. Black wrote West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943): no official can prescribe what shall be orthodox. A government that uses ‘preventing foreign algorithm manipulation’ as authority to control what a platform amplifies is approaching the prescription of orthodoxy by indirect means. Black would join the result on the data-collection rationale. He would write separately that the content-manipulation rationale requires the strict scrutiny Gorsuch demanded, because that rationale, if permitted to expand, approaches the condition Barnette was written to prevent. **William O. Douglas — The Warning No One Else Would Write** Douglas wrote Terminiello v. Chicago, 337 U.S. 1, 4 (1949): free speech ‘may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ His First Amendment jurisprudence was the most libertarian in Court history. He would affirm — the national security record on data collection is specific and uncontested — and write the opinion that Gorsuch gestured at without completing. The government’s content-manipulation justification, Douglas would write, is a government claim that it can restrict a platform because a foreign adversary might use it to spread speech the government finds dangerous. That claim proves too much. A foreign government can theoretically influence any platform that operates in markets where foreign capital participates. If that influence justifies restriction, then any platform a foreign government might theoretically reach is subject to Congressional action on national security grounds. Douglas would affirm and write: this Court today upholds a ban built on two justifications. One is sound. One has no limiting principle. We have not drawn the line between them. We have only said that on these facts, both justifications together satisfy scrutiny. The cases that test only the second justification are coming. Black would have joined the majority but would have expressed discomfort about the potential expansion of government authority through content manipulation justifications, emphasizing the importance of strict scrutiny when such justifications threaten free speech principles.

Originally published on LinkedIn Newsletter: The Technology Blind Spot