Lawfare Daily: Jane Bambauer, Ramya Krishnan, and Alan Rozenshtein on the Constitutionality of the TikTok Bill

[Intro]

Jane Bambauer: It seems to me that Judge Rao and Judge Ginsburg were scared by something, and that Judge Srinivasan was not.

Kevin Frazier: It's the Lawfare Podcast. I'm Kevin Frazier, senior research fellow in the Constitutional Studies Program at the University of Texas at Austin, and a Tarbell Fellow at Lawfare, joined by Jane Bambauer, Professor at Levin College of Law; Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute and a lecturer in law at Columbia Law School; and my colleague, Alan Rozenshtein, associate Professor of Law at the University of Minnesota Law School and a senior editor at Lawfare.

Ramya Krishnan: But more fundamentally, there seemed to be an assumption or at least an intuition that whatever First Amendment curation rights that  TikTok might have absent foreign control, that the existence of foreign control here really undermined the claimed First Amendment rights.

Kevin Frazier: Today we're breaking down the D.C. Circuit Court of Appeals hearing in TikTok v. Garland, which turned on the constitutionality of the so-called TikTok bill.

[Main Podcast]

The D.C. Circuit Court of Appeals held a hearing earlier this week in TikTok v. Garland. There's a lot to discuss, but before exploring the ins and outs of that hearing, we need to briefly unpack some things. So, Jane, TikTok is often a source of laughs and even spin-off reality TV shows such as “The Secret Lives of Mormon Wives,” but Congress is not laughing about the national security concerns presented by the app. Can you break down what Congress was so concerned about that initially animated this focus on TikTok?

Jane Bambauer: Sure. So there were two concerns that sort of melded together. One was that because TikTok is a product of an American company that is a subsidiary of a Chinese-owned entity that China would have influence and even control over the content moderation or actually the curation, I think is a better way to put it. So it would have influence over how the algorithm decides to pitch content, and so it might mean that, I mean you can imagine that if the Chinese government wants to take some sort of adversary action it might boost the presentation of content that tends to drive Americans kind of crazy or politically divide us, and then reduce dissemination of information that does the opposite of that. And then the other side of it is the data security or data privacy issue which is that some forms of data, there was some factual dispute about the nature of the data, but some data winds up in Chinese servers, or in any case, again, under Chinese control to some degree, just by nature of the ownership.

And so those together suggest that if, if the Chinese government wanted to manipulate public discourse, or to find dissidents, or take other nefarious actions, this is a very useful tool to do so. And so, out of concern for, for that, Congress required the company to either divest from the Chinese firm and find another buyer who's not from basically China or well, I think it's just China, right? Or, you know, or fold up shop for now.

Kevin Frazier: Okay. So Jane, you've teed us up well to explore the Protecting Americans from Foreign Adversary Controlled Applications Act. There's not even a good shorthand for that, right? PAFACA? It just doesn't work, so I'm a little disappointed in the interns in this case. But, we've got this gnarly divestiture act. Ramya, can you dive a little bit more into the specifics about what Congress was looking for from TikTok and ByteDance with respect to divesting. When's the deadline? What were its options? And how has TikTok tried to comply with this or change its operations slightly before this sort of Cinderella moment where it either disappears or manifests in some new form?

Ramya Krishnan: Sure. Well, so Jane is exactly right. What did you call it? PAFACA requires, is that ByteDance sell TikTok by, I think it's January 2025 or TikTok gets banned in the U.S. The act also authorizes the president to require the divestiture of other foreign adversary-controlled apps if he or she deems them to be a national security risk.

Kevin Frazier: Alan, one of the instances that came up repeatedly during the hearings earlier this week was this notion of Project Texas as potentially an off ramp to this dire situation that we see come January 2025. What is going on in Texas? What is Project Texas? Why is this relevant?

Alan Rozenshtein: Sure. So, through the magic of editing, the listeners will not hear the giggling that we all did when you first asked this question, Kevin, because none of us want to talk about it because none of us entirely understand it, it's so complicated, but I will do my best. But I will also direct listeners to some great articles that we have run by Matt Perault, who runs a Tech Policy Center at UNC that he's written for Lawfare. I think he may be, outside of TikTok and the NSA, the world expert on Project Texas. Basically, and to understand this, it's useful to recognize that TikTok has been in years long negotiations, discussions with the U.S. government to try to assuage some of these security concerns. And several years ago, TikTok came up with, you know, in consultation with the U.S. government, though, again, exactly how much the U.S. government signed off on this is itself a subject of some dispute. This plan by which it would move a bunch of the operations that are either currently happening in China or have access to from China. So the curation, the recommendation engine, a lot of the private information and move them to a Oracle cloud. So a cloud run by the U.S. company Oracle. I don't know if the cloud is in Texas or metaphysically where the cloud is, but basically the idea would be to take a bunch of the sensitive actions that occur on TikTok and move them to the United States.

And so the reason this is relevant is, and we can sort of get into this more when we get into the meat of the argument, one of the main questions that courts ask the government in First Amendment cases was, were there less restrictive alternatives to the thing you were trying to do? And one of the things that TikTok has argued was that Project Texas or something like it is an alternative that solves all these national security concerns without the extreme step of a ban. To which the government and Congress in particular said, actually Project Texas was never quite going to work because there was still going to be too much in China, in particular, a lot of the source code that runs the recommendation algorithm, that ultimately was going to be in China. That was going to be developed in China and there was really not going to be any way because the source code is so large and it's so complicated for U.S. TikTok or Oracle or whomever to appropriately vet that source code so as to make sure that the, you know, ByteDance or the Chinese are doing any funny business. So, there is something of a kind of factual dispute that you know, I'm curious to hear what Ramya and Jane have to say. I thought was going to actually be more important in the oral argument. It ended up being a little bit of a sideshow as to whether or not this Project Texas alternative was a viable way short of a, and I'm like I can't say PAFACA anymore, I'm just going to call it the TikTok bill, short of the TikTok bill’s ban to accomplish the national security objectives.

Kevin Frazier: All right. Well, now that we've changed terms to the TikTok bill, I guess we can, we can stay on that setting for you, Alan, just to make things easier. But Alan, now I'll ask you a tough question: speaking of factual disputes, something that came up repeatedly in the hearing was exactly what the nature of the government's national security concerns were and how that animated the TikTok bill to begin with. Because on one hand, we have the legislative record about why Congress went from 0 to 100 in passing the TikTok bill. And then we have the arguments that were made by the government at the hearing. Can you help us sort through the different aspects of what the underlying national security concerns were advanced at the hearing versus those that were on the factual record and kind of reconcile why that was meaningful?

Alan Rozenshtein: Sure. So one thing I should say is one additional complication in this case that is usually not present is the fact that much of the factual predicate is classified in this case. So this is both true in Congress, which received multiple classified briefings from the intelligence community, some of which as far as we can tell, though, of course, none of us know it was in those briefings were quite dramatic. They were definitely, I think there was, I should dig up the story, but there was a good story in one of the major papers about how there was one meeting where a bunch of very skeptical congresspeople went in were talked to by the intelligence community for an hour and walked out, you know, ashen white, all ready to vote for the TikTok bill. So, clearly they heard some stuff that made a difference to them.

And then also during the briefing, the government submitted a bunch of classified information, a particular set of declarations, including from the intelligence community. Now this raises the question of a) what's in those, and of course, we don't know, and neither importantly does TikTok or the users. It's only the government and the court that knows. And TikTok wrote a very angry, and in my view, quite actually effective and persuasive brief objecting to the use of this classified information. It's a high profile First Amendment case, though, as far as we can tell, it has not bothered the judges yet so far. So, one question we don't know is what's in that, in those classified documents.

And the second is we don't know what the difference is between what Congress knew and what the executive branch knew. I think the government wants to argue that basically it's all the same. Like, we're not providing really any new information. It's all the same things. Whereas TikTok wants to say that there's actually potentially quite a big difference, which is a problem because the government should not be allowed to, you know, ex post facto provide a factual record that was not before Congress. As to what is in that, you know, what that classified information consists of, again, we have no idea, none of us have inside information. But I would guess it's on the one hand not, quote unquote, smoking gun evidence, which is to say it's probably not, you know, a audio recording of Xi Jinping calling the head of ByteDance, calling the head of TikTok, telling them to screw around with the recommendation engine about Uyghurs or something like that. It's probably not that. Because if it was that, someone would have told us that. They would not have given this classification, but like, we would have known that. On the other hand, it's probably not nothing. And what I suspect it probably is, is either human or signals intelligence of the Chinese government in previous situations, leaning on its companies in a quite draconian way to achieve the Chinese geostrategic objectives, and/or the fact that there is actually more operational control of TikTok by ByteDance than TikTok would like to admit.

And we actually have some open source, some news reporting suggesting that that exists as well. So, you know, on the one hand, TikTok is probably correct that there's no smoking gun evidence. And the government is probably correct that there's a bunch of, you know, there's evidence of a gun, and there's evidence of a bullet, and there's evidence of it being loaded, right? And so the question is, and again, I'm speculating here, but how much of that evidence is enough, is close enough to quote unquote smoking gun to meet the First Amendment threshold? The one thing I will say, though, is one thing that surprised me about the argument was, not that this evidence didn't come up. I mean, it couldn't have come up because it was in open court, but that it didn't seem like, as far as I can tell, and here I'm really speculating wildly here, it didn't seem like the judges were relying that much on the evidence to drive their decision-making. I would have thought that this case would be on the one hand, TikTok making a really strong First Amendment argument, and then the judge is saying, yeah, it's in our strong argument, but we have this really scary evidence, which we can't show you and we apologize, but uhm. It actually kind of wasn't like that. It makes me almost think that had the government not provided any evidence whatsoever beyond what was in the public record, I still think that, at least based on my vibes of the argument, that the, the court could have upheld the law anyway, which I thought was just striking. But again, others may differ in how they viewed the argument.

Kevin Frazier: Jane, let's, let's keep those vibes going. What vibes are you picking up?

Jane Bambauer: So, yeah, I got the opposite impression of Alan, which is interesting, that even though the conversation in substance wasn't, was almost entirely about law applied to pretty basic facts that we all know, I was surprised at how dug in some of the judges seemed on the outcome. I mean, maybe I'm wrong and they'll surprise me, but it, it seems to me that Judge Rao and Judge Ginsburg were scared by something, and that Judge Srinivasan was not. That's the kind of vibes impression I got, and so, you know, what they can talk about or what's worth talking about in oral arguments differs from what might actually be driving their decisions.

Kevin Frazier: Speaking of vibes, Ramya, if you could give us a better sense of the specific arguments that TikTok was making under the First Amendment, and then what the creators were arguing under the First Amendment?

Ramya Krishnan: Yeah, so I, you know, didn't think this argument went particularly well for TikTok, perhaps Alan and Jane agree there. And I think that's in part because of the sort of, you know, separation or even maybe division of labor that took place between the lawyer for TikTok and the lawyer that then stood up for TikTok’s creators. So on the one hand you had the lawyer for TikTok get up and talk, you know, specifically about TikTok’s First Amendment curation rights, and I think, you know this was perhaps a strategic mistake to focus right off the bat on TikTok's curation rights, as opposed to the First Amendment rights of American users. And as I said, you know, perhaps as a matter of division of labor, this made sense, but it meant that the real stakes of the case, and in my opinion, those stakes lie in the sort of free speech rights of TikTok's 150 million users, and more broadly, the precedent that this case will potentially set for the government's ability to block Americans’ access to other foreign sources of information. These stakes basically got obscured for the first 30 to 40 minutes of the argument.

And the panel was obviously skeptical of TikTok's claim to an important First Amendment right here. And part of this, I think, had to do with the fuzzy factual record we've been talking about here, not really in terms of the sort of national security risks that are posed by TikTok. But really the sort of, you know, disputes that the parties had over the precise role that TikTok versus ByteDance has in curating and modifying the algorithm that TikTok runs on in this country. You know, there were questions about, you know, is this really, a ByteDance operation here and, you know, TikTok really isn't involved in this at all? Does TikTok have the ability to accept or reject modifications that are made by ByteDance employees in China? All of these really were not resolved, but I think led to some you know, real skepticism on part of at least some of the judges, that TikTok had real First Amendment rights at stake here.

But more fundamentally, there seemed to be an assumption or at least an intuition that whatever First Amendment curation rights that TikTok might have, absent foreign control, that the existence of foreign control here really undermined the claimed First Amendment rights. You know, you next had the lawyer for TikTok's creators get up and I think get to the, what I think should be the sort of heart of the case, which is the First Amendment rights of TikTok's many, many American users, and so that's largely what he focused on during his time. I will say the government didn't get a free pass here, and I think that the government's lawyer was asked some very smart questions about how their position could be squared with the doctrine. And in particular, the Supreme Court's decision in a case called Lamont v. Postmaster General, which recognizes the First Amendment rights of Americans to receive information and even foreign propaganda created by, or, you know, sourced from hostile foreign powers. So overall, I think they got some pretty heated questioning and, and so did the government to some extent, but it seems like the government, or at least seemed to me that the government had at least two votes and maybe even three.

Kevin Frazier: Alan, can you help further flesh out this, this expressive activity notion with respect to curation?

Alan Rozenshtein: Yeah, I think what may have happened here, I think, so I think Ramya is absolutely right that it was a huge mistake not to spend basically the entire argument about the users. It is true TikTok is a U.S. entity, it's a U.S. corporation, it has First Amendment rights, so as a doctrinal matter, it's true, but no one cares. Like, at the end of the day, no one cares about TikTok's First Amendment rights. What they actually care about is the right of 170 million people. And honestly, the entire argument should have just been the lawyers for TikTok literally just saying 170 million Americans over and over and over again. I mean, that was the way that they were going to win this case, right? And still might at the Supreme Court, though, I'm doubtful, but we can get to that.

Part of it may, as Ramya said, be a division of labor thing. Part of it may be that I think TikTok may have overread the recent NetChoice opinion by the Supreme Court in which the Supreme Court, and again, it's complicated whether it was holding or dicta, but certainly suggested that it is very likely that platforms do have kind of a classic First Amendment curatorial right, and so I think TikTok said, oh, we have NetChoice, let's go in and, and kind of forgot, a) that reading between the lines, no one cares about the company. They care about the users. But also that Justice Barrett in the NetChoice decision wrote a concurrence in which she sort of very weirdly, at least at the time, you know, had this thing about, but maybe if there was foreign control that changes the First Amendment, it's just like a really weird thing to say in retrospect. I mean, it was pretty clear at the time in retrospect, it's really clear what that was, which was an inter-office memo from Justice Barrett to the D.C. Circuit saying, you know, by the way, you're going to hear this TikTok case. I think that also harmed very much TikTok's argument here.

You know, just one, one thing to say on the, the government side, I agree with Ramya that it's not that the government got a free pass, but what I thought was interesting about the government, the government argument was that although the court in particular Judges Srinivasan and Rao did push the government on one part of its argument, it was the particularly extreme part of the government's argument that the government didn't need. Which was the government's argument that actually there's no First Amendment issue at all here, because all this does, all that this law does is regulate corporate foreign ownership which is, by itself, not really a First Amendment issue, to which the judges then correctly said, yeah, but come on, this is corporate ownership of a platform on which 170 million people talk, surely there must be a First Amendment issue somewhere? And they sort of got the government lawyer to admit that. And that's a victory, of a sort.

Well, it's a victory for, like, First Amendment scholars who care about this, because when the court writes its opinion, it will almost certainly not accept the government's extremely broad there's no First Amendment issue here, everyone, you know, keep walking. Everyone move along, good citizens, right, kind of argument. But of course, the government doesn't need to win on there's no First Amendment issue here. They just have to win on whatever the First Amendment issue here is, we can overcome it. And in the argument, you know, that First Amendment issue is going to have to be the First Amendment rights of the users. And again, as Ramya pointed out, it's the argument kind of gave relatively short shrift to that just because of sort of when it went in and you know by minute 30 when we're talking about the users, the court has already been you know beating up on TikTok for 30 minutes and it's kind of hard to recover from that.

Kevin Frazier: You know the number of times we heard is this a waste of time from the bench was, was quite interesting. But putting that potential waste of time aside, Jane, I'm curious, a lot of this argument about the user's First Amendment rights, at least from the perspective, in my opinion, of Judge Rao, often turned on, is there any user interest in the platform ownership itself? What were the arguments going on there about do the users really care or have any legal interest in who owns a platform?

Jane Bambauer: Yeah. So, both TikTok's representative and, and the content creators’ lawyer tackled this, I thought pretty well. So, first of all, obviously by January, if there hasn't been a sale and it's infeasible or, you know, economically, whatever, for whatever reason, there's not a sale, then of course the users are going to be left without their favorite platform and for some of them, it will be their favorite platform, and that will, you know, they will care for that reason. But, but the more abstract idea, I think is the, maybe the more important one, which is that users, even if they're not fully aware even, of where ideas come from, they are affected by it, and they, they kind of move around that, you know, that they have the freedom to move around and to decide what sort of content to seek out or which platforms and venues to make themselves available at.

So the fact that TikTok is popular means that users are deriving some benefit from both the, you know, the sort of tools made available, like the style of videos, the format, but also from the curation itself. And so, they have an interest, I think, in the curation being managed without government interference and burdens. So I, agree with Alan that TikTok's lawyers over relied on NetChoice. But I do think that the government over relied on Murthy. I'm curious what Alan and Ramya think because the government's position, I think is just flat wrong. They said basically now that Murthy's been decided, listeners don't have standing and that is not what Murthy decided. Murthy, it wasn't, it fell on standing, but it fell on standing because they thought that the plaintiffs had not provided sufficient evidence of causation. So there was no harm caused by the government, not that the listeners had no stake in any social media content and curation whatsoever. And so, I really hope that, you know, the judges who did not press, I, you know, I was surprised to see they didn't, nobody really corrected that record, but I hope they don't go for that.

Alan Rozenshtein: Yeah, it's, it's just to plus one what Jane just said, the standing argument is so silly that I almost have to, I almost wonder if it's like a psyop on the government's part where they're, you know, they, they feel like they need to say something insane, just so the court can rule against them on something and make it feel more balanced, but then ultimately uphold them on the core thing that they actually care about, which is that this law is constitutional. I mean, it just gets me back to my general observation that I just, the government's attempt to make this case go away on legal grounds has always struck me as, I mean, honestly, and I say this as one of the, maybe like the legal academy's loudest defender of this law, which I've gotten a lot of flak from, I find that tick on the part of the government of there's no legal issue here, right? There's no problem at all, to be like deeply offensive. It's a ridiculous statement.

And the sooner the government stops saying crazy things like there's no First Amendment issue here or 170 million Americans don't have standing, not on this, who owns their platform, but on does the platform exist in the United States? I find that personally offensive. Like, obviously there's a First Amendment issue here. Obviously there’s standing. The question is just, right, what's the level of scrutiny and what are the values on both sides? And just do it that way. But like, let's no one insult our intelligence here, right? Just as TikTok should stop insulting our intelligence by saying, you know, everything is speculative in the nth degree, and how could you possibly imagine China could do anything? I think the government should stop insulting our intelligence here by saying, there's no First Amendment issue, there never was, this is just, you know, a boring financial regulation of corporate ownership. Rant over.

Kevin Frazier: Ramya, Alan just gave us a lot to go off of. I don't want you to poke a bear that's already been enraged, but it's up to you how you'd like to respond.

Ramya Krishnan: Well, the bear's ire is not directed on me, I’m not so much worried, you know, plus one to, you know, Jane and, and Alan on really all of that. I will say it was, it was kind of funny that on the one hand, the government, you know, was making this really quite extreme argument that you know, the plaintiffs don't have standing or if they do, there is no First Amendment scrutiny because there are no First Amendment interests really at stake here in this case.

I mean, I think at one point, the government's lawyer even said something like, well, if the speaker, and it was referring here to TikTok, doesn't have a claim, it's strange to say that the listener does, which of course is just completely wrong First Amendment doctrine. But so, it's funny to see it makes such extreme arguments on the one hand. But when sort of questioned by the judges, and I think it was Judge Srinivasan in particular, you know, posing sort of, scenarios to really all of the counsel here to like kind of push them and see like where their arguments lead, was kind of scared to embrace the full implications of his argument. I think Judge Srinivasan asked something like, well, if the government says it's concerned about foreign content manipulation does that mean it could require the divestiture of any media company owned or controlled by a foreign entity? Or can it just like flat out bar foreign entities from sending speech inside of the U.S.? And I think that that kind of was the implication of saying that there is no First Amendment interest at stake where you have a foreign speaker, like TikTok. But he was clearly unwilling to embrace that conclusion, which is quite an extreme one. So I thought that that was kind of interesting too.

Kevin Frazier: Yeah, so it's impossible not to bring up the very China-centric nature of this case. And Jane, I'm wondering if you could comment on folks like Judge Ginsburg, for example, seem to really lean into the fact that it's not the role of the judiciary to overstep Congress when it's making some determination about how to respond to a national security threat. So, how much do you think that may serve as the ultimate cover or the really guiding animus for how this decision may come out one way or the other?

Jane Bambauer: Well, unfortunately, I think it's going to matter a lot, at least to this panel of judges. And the reason I say that's unfortunate is that all, you know, the modern First Amendment started with a series of cases where prosecutions were allowed to go forward on exactly this theory that national security was at stake. The content was too dangerous, the coordination with foreign powers with adverse interest to our own. You know, yes, there's a speech interest, but it's easily overridden, so said the court until Holmes and Brandeis started to wake up, by the national security interest.

And so, you know, Whitney, as a turning point, I think should be a lesson to this panel that it's entirely appropriate to be a little bit scared about the content and even the organized, you know, the sort of organized nature of dissemination of content in the U.S. But that that does not mean they should defer to Congress, or the president, in completely defining the risk and responding to it, that in fact they have an obligation under scrutiny, which yes, I agree with Alan that that whether it's intermediate scrutiny or strict scrutiny, that's the question, is how the scrutiny comes out right and national security should absolutely be a reason to uphold a law that is serving a good purpose but we should be you know, I would, I think I would have liked to see the judges ask more about how speculative or not the nature of this threat is. Even if we assume that the Chinese government is trying to take advantage of its control over the algorithm.

Alan Rozenshtein: One part that really struck out to me in the argument and why I think this will actually be 3-0, why I think Chief Judge Srinivasan will also ultimately rule against TikTok was, he asked both advocates for TikTok and the users a version of the sort of this question of, are you really saying that if the United States and China were at war, like in a hot shooting war, you know, this law would be unconstitutional? And to their credit, the advocates didn't quite take the bait. They said, that's not what we’re saying, but we are saying that strict scrutiny should still apply, which I think is, is fair as far as that goes. And, but then they also said, and here's where I think the wheels kind of came off the bus a little bit for them, just in the China-centric nature of this argument, they said, and I guess if we were actually at war with China, then yeah, I could imagine this law being constitutional.

The problem with that is, well, if it's constitutional then, then presumably, right, and this is the classic lawyer, where do you draw the line on the spectrum problem, if it's constitutional then, then it's probably constitutional, you know, some epsilon less scary than then and less scary than then. Of course, at some point, it becomes unconstitutional. The problem is, who's going to draw that line? And while I totally agree with Jane, that it's not that courts have no role to play. I mean, there's no national security exception to the First Amendment. It is true, at least as a descriptive matter, and we can argue whether it should be true as a normative matter, that courts get very squeamish about making those determinations, right?

And given that and this is, I think, a response to some of the concerns that TikTok raised, given that, you know, China is not being singled out because it is a foreign nation. It is being singled out because it is one of the four, I forget what they're called in the statute, adversary nations, China, North Korea, Russia, and Iran, right? In which there is, and we can discuss, is it a cold war? Is it a geo-strategic adversarial relationship? Are we frenemies, right? I mean, I don't know exactly how to call the U.S.-China relationship. I don't think the judges want to be in the position of having to say, you know, being the ones who decide, right, at what point we get close enough to war that, you know, the strict scrutiny comes out in favor of the government.

Now, again, you have to draw the line somewhere and, and by deferring to the government, the court is not not acting. It is deferring to the government, and has to own that decision. But it's much more comfortable for a court to own a decision that the political, democratic, foreign intelligence, national security branches have come to than to go out on its own and say, we're going to override what the political branches, what the national security people are telling us. And then we're going to have to own, you know, some horror, you know, some horror story that may happen when we get into a shooting war with Taiwan. Right? If that occurs. And I think that's kind of the psychology, for lack of a better term, of what I think what is going on, or at least what struck me as was going on in Judge Srinivasan's head, which then I assume was also going on in Judge Rao and Ginsburg's head as well.

Ramya Krishnan: I think for me, this is one of the most disappointing aspects of the argument, not the fact that this question was asked. I think it's a really good question. But I was sort of hoping for a more full-throated defense of First Amendment principles from counsel for TikTok, you know, for all the talk of content manipulation, you know, the fact is that foreign speech is not uniquely manipulative. Domestic propaganda can, of course, be just as harmful, and yet the fundamental premise of a lot of modern First Amendment doctrine is that the remedy to bad speech is more speech, not enforced silence. That's the hallmark of an open society. That's what we pride ourselves on being.

And so when you had, you know, Judge Rao ask TikTok's lawyer, something like, you know, are you really saying that disclosure or counter-speech is really always the least restrictive means? I mean, of course, it isn't, and facts matter, but there was sort of some shrinking away by TikTok. And I wish it would have said, well, almost always, yes, it is. You know, that's the whole sort of theory of the disclosure provisions in FARA, right? And that there is value in the government telling the American public when something is foreign propaganda, but ultimately leaving it up to Americans to decide whether to consume that information, what value to give it. And that's really the right solution in most cases because foreign speech often can be valuable and especially valuable during wartime. It is especially important during wartime that we hear foreign perspectives. And it is dangerous, I think to, just because we're at war, give the government unfettered authority to prohibit Americans from accessing foreign sources of information.

Kevin Frazier: Jane, I think one thing that commentators have so far highlighted also about this hearing was perhaps we didn't get as much clarity around just what sort of manipulation by China of TikTok we may actually be seeing. So, we talked earlier about so much of the record being redacted. Did you get a stronger sense from this hearing about what we're specifically fearful of from the government's perspective?

Jane Bambauer: No in fact, I mean there was less in the hearing than there was in the briefing even so no, we don't have sort of specific examples of anything that, from the hearing we didn't get specific examples of what we know has happened in the past. But, and yeah, and I don't think there was, I agree with Ramya that there wasn't sufficient time I think to really, exploring the question of what China could be doing with their algorithm that could be worse than the meta-message that the government is sending now. The message, the meta-message that the government is sending now is you can't be trusted with this speech venue that you like, right? You know, I would think that that's one of the most manipulative things, I guess, that the Chinese government could do to cause strife and distrust. Whereas, you know, sending either obviously politically motivated content to the point where people sort of get bored and leave, or being so subtle that almost no one notices, and therefore it probably makes very little difference. Like, neither of those seem quite as bad as this to me, which is probably why Alan and I are at such polar opposites about how this case should come out, even with the shared premise that this should be done under scrutiny, under either strict or intermediate scrutiny.

Kevin Frazier: So we have some normative disagreements, but I'm keen to hear, putting on our respective forecaster hats, now that everyone's a super forecaster. We've heard a bit from Alan's forecast. But just Alan, why don't you, in case listeners somehow forgot your angry rant from earlier, what is your prediction about how this is going to turn out in the D.C. Circuit? And then we'll go to Jane and Ramya.

Alan Rozenshtein: I think it's going to be 3-0. I think it's going to be supporting the government. And I think it's going to be 20 pages of the following sentence: But it's China. Just over and over and over again. And of course, I'm joking, but only kind of, right? I really think this is going to be a relatively narrow opinion, upholding that there is a First Amendment issue, but just emphasizing with many sites to, you know, cases like Holder v. Humanitarian Law Project and the Palestine Liberation Information Office. I don't remember exactly the case was called, but the one that Judge Rao cited a lot that look, no one's trying to ban domestic, no one's even trying to ban Spotify or Sweden or de Tocqueville, anything like that, this is very specific foreign actors that are enemies, and that's just what it is.

Kevin Frazier: Jane, where's this going to go?

Jane Bambauer: I still am holding out hope for Judge Srinivasan. So, I think it's going to be 2-1. I agree that probably the majority opinion will apply scrutiny, but I'm not even positive of that, at least from the questioning there, you know, perhaps there are more tea leaves to read. But from the questioning, I thought that Judge Srinivasan was trying to help strengthen the arguments of two of the attorneys fighting on behalf of TikTok and asked all the right questions of the government.

Kevin Frazier: Ramya, how do you come out? You gotta pick a winner here. Is it 2-1, 3-0? Or perhaps you, you could really throw everyone for a loop and say 1-2 or 0-3.

Ramya Krishnan: I think for my money, I want to believe it's 1-2 but it's definitely not that, or at least, you know, I don't think it's that. And so I think much more likely it's 2-1 or 3-0 and I can't really, I just, I want to believe that at least Judge Srinivasan, at least some of his questions suggested that he kind of saw the stakes of the case. And so I think there's at least a possibility he comes out the other way, but by no means is that a given. And I mean, I think if the TikTok bill does go down, it really is going to turn on this idea that what the bill is targeting is purely sort of, you know, foreign ownership conduct not speech. So at most, this gets a lower level of scrutiny. But I will say, I think that that's just, it's so, so wrong-headed. You can't separate foreign speakers from their domestic listeners and I hope that that persuades Judge Srinivasan and hopefully another judge as well, but I'm not optimistic.

Alan Rozenshtein: Kevin, what do you think? I'm curious. What do you think? You listened to the argument too. What's your opinion?

Kevin Frazier: I gotta say, I'm thinking it's 3-0. I'm going with Alan as well. I think the deference to Congress to weigh in on national security decisions and framing this really around China. Even though I agree that Judge Srinivasan at times seemed a little more careful about the level of threat to the U.S. and to U.S. users from China. To me, that China narrative is just too strong, and that sort of separations of power argument is just going to weigh too heavily. So I'm in the 3-0 camp. But either way, regardless of who ends up being right from this excellent panel, TikTok users, you may be on notice, now is the time to work on that Reel profile. So, head on over to Reels, start working on that new content game now, but we'll have to leave it there in the interim. So, thank you again to this excellent panel.

Ramya Krishnan: Thank you.

Jane Bambauer: Thanks everyone.

Alan Rozenshtein: Thanks.

Kevin Frazier: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies, and the Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja. Our theme song is from Alibi Music. As always, thank you for listening.