The Trump Administration recently announced that it had reached a “framework agreement” with China for ByteDance’s divestiture of TikTok, which must still be fleshed out and implemented. Until that happens, the legislative divestiture requirement, as embodied in the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), remains the law of the land. The Supreme Court upheld the constitutionality of PAFACA in TikTok v. Garland (2025), in which it affirmed the federal government’s authority to restrict or force the divestiture of technology platforms owned or controlled by foreign adversaries. The Court concluded that the law targeted ownership and control, not the content of speech. Thus, PAFACA qualified as a content-neutral regulation that advances a vital national security interest. By applying intermediate scrutiny, the Court found the statute to be narrowly tailored; TikTok could continue operating in the United States if its ownership structure were to change. In light of the growing concerns being raised about foreign ownership and control of DeepSeek, it is timely to consider how PAFACA, as applied by the Supreme Court to TikTok, would apply to foreign-owned LLMs.
While the TikTok decision arose in the context of a social media app, its reasoning has far-reaching implications for other technologies, including large language models (LLMs) that are foreign-owned but operate domestically in the United States. Like social media platforms, LLMs collect vast amounts of user data, shape the information users receive, and can influence public discourse—making them potential focal points for national security concerns about foreign control. This article examines the key legal principles from TikTok v. Garland and explores how they might apply to the regulation of foreign-owned LLMs operating within the United States.
Legal Background
The dispute in TikTok v. Garland centered on PAFACA, enacted in April 2024. The statute prohibits applications from operating in the United States if they are owned or controlled by entities tied to foreign adversaries that pose a significant national security threat, unless they are divested to non-adversary ownership within a prescribed period. While Congress’s primary target was TikTok’s parent company, ByteDance, the law was drafted broadly, reflecting rising concerns over the national security implications of foreign-controlled technologies.
TikTok challenged the statute, arguing that the divestiture mandate violated the First Amendment by suppressing a platform that facilitates the speech of millions of Americans. The company also contended that the law was not narrowly tailored, citing less restrictive alternatives, such as data localization or contractual safeguards. The government argued that foreign ownership posed unacceptable risks of surveillance, data misuse, and covert influence over U.S. users, risks that could not be managed without significantly changing control of the platform.
Lower courts upheld the statute, and in January 2025, the Supreme Court affirmed its ruling. In a per curiam opinion, the Court applied intermediate scrutiny, reasoning that the law regulated ownership and control rather than speech content. As the Court explained, “[t]o survive intermediate scrutiny, a regulation need not be the least speech-restrictive means of advancing the Government’s interests…. [T]he standard ‘is satisfied ‘so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not ‘burden substantially more speech than is necessary’ to further that interest.” The Court recognized national security as a substantial governmental interest and held that requiring divestiture was sufficiently tailored because it allowed TikTok to continue operating under U.S. ownership. Concurring opinions diverged on the standard of scrutiny, with Justice Gorsuch favoring strict scrutiny and Justice Sotomayor criticizing the Court’s avoidance of deeper First Amendment analysis. Still, the unanimous decision highlighted the Courts’ willingness to allow ownership-based restrictions on foreign-controlled technology platforms.
The decision has drawn criticism for sidestepping important First Amendment questions. By characterizing the law as content-neutral, the Court avoided a deeper examination of whether excluding a platform from foreign ownership still suppresses speech and compromises editorial discretion.
Comparing National Security Risks
In TikTok v. Garland, the risk of foreign adversary governments accessing the sensitive data of U.S. users was sufficient to justify divestiture. The government was also concerned with a foreign adversary having control over a U.S. communications platform’s recommendation algorithm, but the Supreme Court primarily relied on the data collection justification to make its decision.
The Congressional Report on DeepSeek by the Select Committee on the Chinese Communist Party highlights similar risks to those raised in TikTok v. Garland. According to the report, investigations have revealed that DeepSeek funnels Americans’ data through infrastructure tied to China Mobile, a PRC military-linked company, making it subject to Chinese intelligence laws. The platform’s design reportedly bypasses common encryption safeguards, making U.S. user data even more vulnerable to interception.
Additionally, DeepSeek manipulates the information it provides, aligning outputs with Chinese Communist Party (CCP) censorship directives. The Congressional Report documents that in up to 85% of politically sensitive cases, the AI model suppresses or modifies responses to align with Beijing’s messaging, effectively embedding state propaganda into its generated content outputs. Unlike U.S.-based AI companies, which impose safeguards to mitigate harmful speech, DeepSeek operates as a digital enforcer of the CCP’s ideology.
These findings mirror—and in some respects surpass—the dangers highlighted in the TikTok v. Garland opinion. While TikTok raised concerns about possible misuse of user data and algorithmic control, DeepSeek has been directly associated with PRC military-linked infrastructure, illegal use of U.S. technologies, and widespread censorship aligned with state orders. Under the TikTok framework, such evidence would provide ample justification for banning a foreign-owned platform like DeepSeek, as the national security threats likely outweigh the First Amendment rights of U.S. users.
Regulating Ownership rather than Content
While the threats are comparable, there is a key difference in how the two companies are organized. TikTok has a foreign owner, but is operated by a company inside the U.S. Thus, the operating entity enjoys First Amendment protections in its own right. On the other hand, a foreign-owned and foreign-operated model, such as DeepSeek, would fall outside the First Amendment’s constitutional protection, as their speech originates outside of the U.S. territorial and constitutional reach. Applying PAFACA to a foreign-owned and foreign-controlled LLM like DeepSeek, would, therefore, be unlikely to raise First Amendment concerns relating to the foreign owner/operator itself. That said, as further discussed below, American users of the LLM would still enjoy First Amendment rights to receive information.
What happens if an LLM is foreign-owned but is operated domestically by a US-based entity? In this context, TikTok v. Garland demonstrates that courts will likely permit regulation aimed at foreign ownership based on national security concerns. The decision makes clear that Congress may regulate ownership without directly targeting content. Thus, even if a U.S. subsidiary manages day-to-day operations, ultimate foreign ownership can be treated as a conduit for adversary influence. National security concerns could well outweigh First Amendment protections, allowing divestiture or similar structural remedies under PAFACA’s framework.
In short, foreign operation places the platform itself outside the scope of the First Amendment, while foreign ownership with domestic operation triggers constitutional protection yet remains vulnerable to ownership-based regulation. Still, American users of these platforms preserve their First Amendment right to access and receive information.
First Amendment Rights to Receive Information
Although the First Amendment does not protect the foreign entities that own and control foreign-operated LLMs, the Americans who use these systems are entitled to constitutional protections. In the TikTok v. Garland opinion, the Supreme Court recognized that the First Amendment safeguards not only the right to speak but also the right to receive information. When U.S. users interact with an LLM, their right to access the model’s outputs brings the First Amendment into play.
The Court also recognized the value of editorial discretion, protecting the judgment involved in shaping, selecting, or generating content. An LLM’s generative process involves expressive functions: selecting data, structuring outputs, and filtering responses. For Americans using a domestically operated LLM, those expressive dimensions shape the flow of information, making the platform analogous to a communications forum rather than a neutral tool. Therefore, even if the model itself is not a “speaker” with constitutional rights, its domestic operation involves expressive decisions that implicate the public’s informational rights.
Moreover, the Court refused to distinguish between non-expressive regulations triggering strict scrutiny and restrictions on platforms whose core function is communication. By treating ownership restrictions as content-neutral and applying only intermediate scrutiny, the Court avoided deciding whether heightened protection should apply when regulation indirectly burdens editorial and communicative functions. For LLMs, this ambiguity is significant: while Congress may characterize restrictions as targeting ownership, those rules inevitably affect the speech available to U.S. users.
Thus, the application to LLMs is twofold: first, Americans’ right to receive information means that shutting down or restructuring a domestically operated model would directly implicate their First Amendment interests; second, because LLMs exercise a form of editorial discretion, regulating ownership may indirectly suppress expressive choices embedded in their design. Yet under the TikTok v. Garland framework, national security concerns may well outweigh these protections. Courts will likely treat foreign ownership as sufficient justification for divestiture or restructuring, even if the effect is to limit users’ access to a source of information.
Conclusion
The Supreme Court’s decision in TikTok v. Garland underscores a willingness to prioritize national security interests over First Amendment protections when foreign ownership of a communications platform is at issue. By considering ownership restrictions as content-neutral and using intermediate scrutiny, the Court allowed Congress to impose divestiture or even ban foreign-controlled technologies without conducting a detailed review of expressive harms. Applied to LLMs, this framework suggests that, as long as a model is foreign-owned and provided that government measures focus on foreign ownership, national security concerns may well outweigh First Amendment considerations, allowing the government to prohibit a foreign-owned LLM from operating in the United States on national security grounds. That said, much will depend on the facts of the individual case. The Court took pains to emphasize the “inherent narrowness” of its holding. “A law targeting any other speaker would by necessity entail a distinct inquiry and separate considerations.” The PAB team is exploring the considerations that come into play when thinking of an LLM as a “speaker.”
