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The ruling suggests that a shell corp might not be quite enough, even though TikTok as a US operating entity is sufficient. > The Government suggests that because TikTok is wholly
owned by ByteDance, a foreign company, it has no First
Amendment rights. Cf. Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, Inc., 591 U.S. 430, 436 (2020) (explaining that
“foreign organizations operating abroad have no First
Amendment rights”). TikTok, Inc., however, is a domestic
entity operating domestically. See NetChoice, 144 S. Ct. at
2410 (Barrett, J., concurring) (identifying potential “complexi-
ties” for First Amendment analysis posed by the “corporate
structure and ownership of some platforms”). The Government
does not dispute facts suggesting at least some of the regulated
speech involves TikTok’s U.S. entities. See TikTok App. 811–
12, 817–18 (explaining that promoted videos are “reviewed by
a U.S.-based reviewer,” that an executive employed by a U.S.
entity approves the guidelines for content moderation, and that
the recommendation engine “is customized for TikTok’s vari-
ous global markets” and “subject to special vetting in the
United States”). > Nor does the Government argue we should “pierce the
corporate veil” or “invoke any other relevant exception” to the
fundamental principle of corporate separateness. Agency for
Int’l Dev., 591 U.S. at 435–36. We are sensitive to the risk of a
foreign adversary exploiting corporate form to take advantage
of legal protections in the United States. Indeed, the
Government presented evidence to suggest the PRC intention-
ally attempts to do just that. See, e.g., Gov’t App. 33–35
(describing the PRC’s hybrid commercial threat and its
exploitation of U.S. legal protections for hacking operations).
Under these circumstances, however, we conclude that the
TikTok-specific provisions of the Act trigger First Amendment
scrutiny. |