Strict Scrutiny has two tests: 1. Compelling Government Interest 2. Narrowly Tailored (least restrictive means)
Note the court does not say foreign actors don't have First Amendment rights.
The concurrence by Judge Srinivasan would instead hold that the law is subject to only intermediate scrutiny and uphold the law on that basis.
Why do it this way? It takes away a potential avenue of appeal for TikTok. They can’t ask the Supreme Court to hold that the law is subject to strict scrutiny, because that issue wouldn’t help them overturn this ruling.
If you had forced the rest of the panel to choose, I think they would have landed on intermediate scrutiny.
>There are reasonable bases to conclude that intermediate scrutiny is appropriate even under these circumstances. We need not, however, definitively decide that question because we conclude the Act “passes muster even under the more demanding standard.”
It's possible that either Judge Ginsburg or Judge Rao think the strict scrutiny should apply, but if forced to put money on it I would say they both land on intermediate scrutiny.
Not to say that you couldn't be right, them both landing on intermediate scrutiny is just not how I read the tea leaves.
Is there a precedence on foreign actors (either inside or outside the US) having First Amendment rights?
Outside of the US your question is moot, as the US constitution is only binding in the US.