In 2024, President Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act, which bans from the United States any social media application the President deems controlled by a foreign government. The Act continues a longstanding legislative tradition of curbing expression by perceived U.S. adversaries—from the Chinese Communist Party in the 1950s to the Palestine Liberation Organization in the 1980s. Today, foreign adversaries’ capacity to influence American media and elections poses one of the most urgent national security concerns. This concern contributed to the 2024 Act’s effort to bar Chinese-owned company ByteDance, with its ties to the People’s Republic of China, from operating TikTok in the United States.
Federal courts have upheld the Act and similar speech restrictions without articulating a consistent framework for determining whether, and to what extent, foreign-controlled entities enjoy First Amendment protections. In TikTok Inc. v. Garland, the Supreme Court leaned on existing precedent to hold that ByteDance lacked First Amendment rights because it spoke only through a domestic subsidiary.
This reasoning sidesteps a growing reality: foreign state-owned enterprises increasingly speak directly within U.S. borders, especially through virtual platforms. The TikTok Court did not address whether ByteDance would possess First Amendment rights if it communicated directly in the United States. As these questions multiply in frequency and urgency, federal courts must develop a coherent and principled framework for evaluating First Amendment rights of foreign state-owned enterprises.