Article by Michael Park
In February 2025, President Trump issued an “America First Investment Policy” memorandum to several federal agencies and executive departments, including those overseeing economic policy, law enforcement, and national security. It outlines key strategies and directives aimed at fortifying economic and national security from threats posed by foreign adversaries, with particular focus on the People’s Republic of China (PRC). The memo includes a framework to mitigate the exploitation of U.S. companies involved with critical technology, personal data, “and other sensitive areas” by restricting foreign investor access to such sectors. It also underscores the national security concerns involving U.S. companies linked to foreign ownership, control, or influence (FOCI)—a situation where a foreign entity has the power to direct or influence matters of a U.S. entity’s management or operations. In a new era of great power competition—primarily between the United States and the PRC—foreign control or influence in domestic affairs, especially by foreign adversaries, has acquired renewed prominence as a national security matter.
Within this context of great power rivalry and the concerns regarding FOCI by U.S. adversaries, the U.S. Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACAA or the Act), which required the popular video-sharing platform TikTok to be divested from its foreign parent company ByteDance or face a state of inoperability. It marked the first time that a chamber of Congress passed a bill that would essentially ban or make inoperable a social media platform due to national security concerns. In TikTok Inc. v. Garland, ByteDance Ltd., TikTok, Inc., and users of the TikTok platform (TikTok petitioners) subsequently challenged the constitutionality of the Act. But the United States Court of Appeals for the D.C. Circuit upheld the Act after it ruled that the government’s national security rationales over data security and content manipulation satisfied strict scrutiny.
In January 2025, the United States Supreme Court, applying intermediate scrutiny, accepted the government’s data security rationale and upheld the constitutionality of the Act. The Court pointed out that the TikTok petitioners did not identify any precedent in which the Court treated a regulation of corporate control “as a direct regulation of expressive activity or semi-expressive conduct.” The fact that no precedent for such a proposition was identified speaks to the novelty of the foreign-divestiture requirement as a method to limit access to a speech platform. While the Court was hesitant to apply the First Amendment to the Act, the Court ultimately concluded that the Act “impose[d] a disproportionate burden upon” TikTok petitioners’ activities. The government underscored concerns that a foreign adversary government (the PRC in particular) could exploit the corporate form and employ a domestic subsidiary (like TikTok, Inc.) as a vehicle for foreign influence. Yet the divestment requirement raises critical questions about how to balance protected expressive activity on a speech platform that is burdened by the regulation of corporate control—pursuant to national security imperatives.
This Article examines the implications when the government attempts to restrict the First Amendment rights of foreign-affiliated or foreign-controlled domestic subsidiaries. It further examines the legal challenges to the PAFACAA to highlight the prioritization of national security imperatives over free speech principles. It then addresses the First Amendment implications for foreign-affiliated speakers. This Article begins with a short overview of the nation’s longstanding concerns—dating back to the constitutional era—over foreign influence in our political and civil affairs. What follows next in Part II is a modest review of corporate speech rights, the prohibition on corporate identity-based restrictions, and various ways foreign nationals can exploit the corporate form to impose foreign influence. Part III addresses the challenges that courts encounter when balancing national security concerns with speech rights of individuals and organizations that are involved with foreign entities. Finally, Part IV reviews the court decisions in TikTok Inc. v. Garland, and highlights both the D.C. Circuit and Supreme Court’s deferential treatment of the government’s national security arguments and its implications for foreign-influenced speakers.
About the Author
Michael Park, Jerry and Karla Huse Endowed Professor, University of Nebraska-Lincoln.
Citation
100 Tul. L. Rev. 137