The Lawfare Podcast: How Are the TikTok Bans Holding Up in Court?

[Introduction]

Mary-Rose Papandrea: I think it is a concern. I, I would imagine from the tech company's point of view, you know, this has often been said, like we're trying to regulate state to state. There are 50 states. It's, it's somewhat of a nightmare to even imagine how they do that. You know, how they even know where the users are and that might require even more surveillance, which seems bad.

Quinta Jurecic: I'm Quinta Jurecic, a senior editor at Lawfare, and this is the Lawfare Podcast, January 3rd, 2024. Today, we're bringing you an episode of Arbiters of Truth, our series on the information ecosystem. In May 2023, Montana passed a new law that would ban the use of TikTok within the state, starting on January 1st, 2024.

But as of today, TikTok is still legal in the state of Montana, thanks to a preliminary injunction issued by a federal district judge. who found that the Montana law likely violated the First Amendment. In Texas, meanwhile, another federal judge recently upheld a more limited ban against the use of TikTok on Texas state owned devices.

What should we make of these rulings? And how should we understand the legal status of efforts to ban TikTok? We've discussed the question of TikTok bans and the First Amendment before on the Lawfare Podcast, when my fellow senior editor, Alan Rozenshtein, and Matt Perault, Director of the Center on Technology Policy at UNC Chapel Hill, sat down with Ramya Krishnan, a staff attorney at the Knight First Amendment Institute at Columbia University, and Mary-Rose Papandrea, the Samuel Ashe distinguished professor of Constitutional Law at the University of North Carolina School of Law.

In light of the Montana and Texas rulings, Matt and I decided to bring the gang back together and talk about where the TikTok bands stand with Ramya and Mary-Rose. It's the Lawfare Podcast, January 3^rd, How are the TikTok bans holding up in court?

[Main Podcast]

Matt Perault: We last chatted in April about challenges to state bans and state restrictions on TikTok.

Ramya, I'm wondering if you could bring us up to speed. What has been happening lately when it comes to litigation over attempts to ban TikTok?

Ramya Krishnan: Sure. So the major new development has been the challenge to Montana's TikTok ban, which is the broadest TikTok ban in the U.S. today. It bans TikTok from operating within Montana's borders and imposes a $10,000 penalty on TikTok or any app that hosts it for each time a user accesses the site or is offered the ability to access the site.

So that law was scheduled to take effect on January 1. It was challenged both by TikTok itself and by a group of TikTok creators. They both filed a motion for a preliminary injunction against the law and that motion was very recently granted by Judge Malloy of the U.S. District Court, the district of Montana.

That decision found that Montana's TikTok ban violates the First Amendment. It also found that the ban is preempted by federal law and violates the Dormant Commerce Clause. Separately, we at the Knight Institute at Columbia University challenged Texas's TikTok ban, which is a narrower state employee ban.

As I'm sure listeners know, there are a bunch of these bans now around the country. By our count, close to 35 of them, 20, more than 20 of them, apply to public universities in one way or another. So we challenged Texas's TikTok ban as it applies to public university faculty because we're concerned about the implications of these kinds of laws for academic research and teaching about TikTok. And unfortunately, we got a disappointing decision very recently in, in that case, upholding Texas's ban as it applies to public university faculty.

Matt Perault: So we'll talk about the Texas case a little bit more in a few minutes, but before we go back to that, Mary-Rose, can you just set the stage a little bit on the procedural posture in the Montana case?

So this was a ruling on a preliminary injunction. What does that mean and what comes next?

Mary-Rose Papandrea: Oh, sure. So it doesn't mean that TikTok and the other plaintiffs have definitively won the case. It means that they've shown a likelihood of success. And so the opinion is instructive because the court gave some pretty extensive legal analysis on various arguments that the challengers had made to the law.

And so it seems likely that if the case does continue, if Montana, I mean, I, I don't, I haven't heard that Montana is repealing the law, that the case would go into a discovery period and there would be another motion maybe a summary judgment motion to finalize the, the decision.

Quinta Jurecic: So this is kind of a follow up podcast in a way.

The three of you had convened previously with my colleague at Lawfare, Alan Rozenshtein, to discuss the sort of legal mechanisms and possibilities behind TikTok bans. And you discussed the legal standard under which any ban should be evaluated, in particular, given the First Amendment implications, whether bans should merit strict scrutiny.

And so just to focus on the Montana case to begin with. Judge Malloy, I thought it was interesting, he kind of waffles a little bit on the appropriate standard. He writes that the state, and I quote, has the better argument end quote, that intermediate scrutiny should apply, but he suggests that the plaintiffs may not actually be entirely wrong to argue for strict scrutiny either.

So I'm curious what both of you made of, of Judge Malloy's reasoning. Mary-Rose, let me start with you. And then Ramya, I'm curious for your thoughts as well.

Mary-Rose Papandrea: The district court judge noted that in 2020, another district court had applied a prior restraint framework in evaluating a challenge to a ban on WeChat.

And here, this Montana district court judge distinguished that case by saying that Chinese Americans and Chinese nationals who wanted to use WeChat to communicate in Chinese, because they had limited abilities to communicate in English, would not have another, you know, real way to communicate. Whereas here, there are other ways people can communicate aside from TikTok.

So that was an interesting way around the prior restraint argument. He also argued that, that it was, the, the ban is not directed at, you know, what people say, but where they are saying it. So I, I don't think, and we can talk about, I'm so excited to have this conversation. We can talk about what framework is right.

I think that the court makes a good point. And, and, and as I recall, Matt, in the last podcast, you were pushing us on this. What is the right framework? I think there are some interesting questions about, you know, exactly what is the correct framework? Should we think of this as a prior restraint? Should we think of this as something subject to strict scrutiny, maybe not prior restraint?

Or should it be subject simply to an intermediate scrutiny? I should add that what clearly lost, I think, was the state's argument that this was not a ban on expression at all. And this is quite common for government, I mean, obviously they love to avoid the First Amendment entirely. So if they can say, no, this isn't really about speech, this is just about, you know, conduct. That's not going to go anywhere, but I think that we can have, and I'd love to talk more about, you know, the, the pros and cons or the, the, you know, what, the arguments for prior restraint versus, you know, just a time, place and manner restriction. The court ultimately concluded that it didn't have to decide this level of scrutiny because even under intermediate scrutiny, the law failed.

Matt Perault: I would love to just pause here for a second because of my interest in understanding the First Amendment in more detail. Mary-Rose, you know, one of my goals for this summer was to finally really learn the law of the First Amendment. Mary-Rose actually gave me a casebook to help with that quest, and we talked about it a bunch.

And Ramya, you and I were at an event recently where I was talking about how challenging it is to learn First Amendment doctrine in part because of opinions like this, actually, where like, you know, when you're trying to get up to speed on First Amendment law, like one of the first questions is, well, is it content based or is it content neutral?

And the judge just sort of skirts through all of that. So I'm kind of curious, just from your, your vantage point as real experts in the First Amendment, like what does it mean that the judge moved through this? Is that sort of typical? Do you think it will have significant implications down the road?

Ramya Krishnan: Yeah. I mean, I think I found this part of the opinion a little bit frustrating because it was a little waffling. So on the prior restraint question, I didn't find the judge's analysis persuasive at all. He seemed to be conflating the question of whether the ban functions as a prior restraint with the question of whether TikTok is a unique medium of communication.

And so he found it relevant that users of TikTok might be able to use another social media app or site as a substitute for TikTok. But I don't think that there would be any question, you know, if the state banned the New York Times, for example, that that was a prior restraint and that it was no less of a prior restraint because other newspapers weren't banned.

So I didn't entirely follow that part of the judge's analysis. And I'll say on the content based, content neutral question, I think it's actually quite a common move for, to judges to sort of dodge that question and say we don't need to decide whether it's content neutral, content based, because ultimately the law fails this lesser standard of review called intermediate scrutiny, and so that's sort of what we saw here.

I will say that I actually think that on its face, I think there's a good argument that it's content neutral. But what was interesting about this ban, and one reason it was so badly drafted, was in the preamble to this statute, the legislature made it very clear that one of the reasons it passed this law is that it wanted to protect children from quote unquote dangerous content like, what was one of them, like-

Mary-Rose Papandrea: Oh, it is such a good list of reasons. Yes.

Ramya Krishnan: -boiling chicken in a nightclub or something.

Yeah, and so that seemed to be very clearly, you know, a content based purpose. And we didn't see the district court really wrestle with that question, but I would have thought that that might make this an easier case in deciding that the law was content based, but I'm not sure Mary-Rose, if you agree.

Mary-Rose Papandrea: Yes. Okay, so a hundred percent agree with you. I did not find this part of the opinion persuasive. So, what I'll add to your already wonderful analysis and criticism is that this was a challenge brought not just by users of TikTok, but TikTok itself. So they, they put the challenges together for purposes of this motion.

So you're talking about a, a speaker TikTok is, I mean, we may not think of that, but that's the whole issue that's before the Supreme Court in the NetChoice cases, you know, these, are these platforms speakers? And I will say that, this court seems to come down on the side in, in this very opinion, on the, on the, on the side that they are speakers because the court talks about how TikTok has editorial discretion and cites Hurley and Tornillo.

These are the cases that that NetChoice are citing. So the court says that, but then at the same time says this is content neutral. So the problem, number one, is that this is a speaker based ban and the court has been very suspicious of speaker based bans. So at a minimum, strict scrutiny, I would think, but also a prior restraint because now they cannot speak. So to me, that seems obvious.

The second thing I will underscore, the confusing nature of this law where they cite many, many purposes. One is very clearly content based. They're going after the types of content that will harm minors, but they also specifically in the court later in the opinion cites at length all of the legislative history going after TikTok.

This sort of goes back to my other point about the speaker, TikTok, as a Chinese entity. So I, I just add that to the, you know, already excellent criticisms. It just was not, well thought out. The other is this WeChat, I was not, I didn't buy it. I stated earlier the distinction the court made with that WeChat case, but that also was not very persuasive.

You know, the fact that WeChat is not offered, that's the same. It's the same thing as not allowing TikTok to be, to be available.

Quinta Jurecic: We've talked a bit about the, the state's reasoning behind putting this ban on, on paper and the, how the kind of, I think it's fair to say sloppy drafting of the law, the legislative history really shapes what the court is doing here. And that is crucial to the court's reasoning because under this intermediate scrutiny standard that the court decides to adopt, a law has to advance an important state interest by a means substantially related to that interest.

Montana's stated interest involves these national security concerns. They say they want to protect the state's children from NyQuil chicken and so on and so forth. And then they also advance this consumer protection reasoning. Judge Malloy seems pretty unimpressed by all of these, frankly. So he, he writes that Montana hasn't really briefed its interest in protecting children.

On the other hand, it has briefed its consumer protection interest, but it didn't really provide a good reasoning for that. That kind of leaves this foreign affairs interest, and we can talk about that, but there, there's this serious preemption issue there. So Ramya, can you maybe walk us through Judge Malloy's analysis on these different state interests?

And then I do want to dive into the foreign affairs aspect once we've kind of laid out the landscape.

Ramya Krishnan: Yeah, absolutely. So I thought that this was probably the, you know, the strongest part of the decision finding that this law fails this intermediate standard of scrutiny and that conclusion hinges on sort of two reasons as you sort of alluded to.

The first is that the state had failed to show that the ban advanced an important state interest. And, you know, what's notable here is that the state defended the ban as a data privacy measure, but as the judge noted, privacy wasn't mentioned anywhere in the act, which instead alluded to the state's interest in protecting, you know, national security and protecting minors from dangerous content.

The state didn't file any affidavits, any evidence to shore up its data privacy interests. So Judge Malloy wasn't all that persuaded that that was the real motivation here. And I think he was right to be skeptical. The second main reason he found that the ban failed First Amendment scrutiny is that it wasn't sufficiently tailored.

So even assuming the state had a, a legitimate interest in protecting data privacy here, the law wasn't tailored to that interest. Or to paraphrase Judge Malloy, the legislature used an axe to address its concerns where it should have used a scalpel. So the first reason that was the case is that you know, the state hadn't shown the ban was necessary to protect privacy.

Judge Malloy noted that in the very same legislative session that Montana passed this TikTok ban, it also passed a data privacy law, and it hadn't done anything to explain why that law didn't address its concerns about TikTok's data collection practices. But more fundamentally, it hadn't shown that the ban would be effective. You know, other social media companies also collect much the same data as TikTok.

China, the district court noted, can collect the same kind of data that TikTok collects through data brokers. It can scrape this information from the internet itself. It can, can hack. China has a track record of hacking federal agencies. And so the state just hadn't done enough to show that the TikTok ban it had enacted would at all advance the, it's purported interest in data privacy.

And so that's essentially, you know, what, what the court rested its reasoning on.

Mary-Rose Papandrea: One thing the court said is that it's not a legitimate, you know a state interest or you know important state interest for the purpose of intermediate scrutiny that the state wants to protect against Chinese espionage. So there's, one is a failure of proof that you know, it sounded like, this may have been later in the opinion, that they were just like relying on newspaper articles and just really don't have any proof that this is happening through TikTok, but the court says that that this is not something that the, a state can assert.

And so this is separate from the preemption arguments that a state cannot assert an interest in, in protecting national security. And I thought that was interesting. And I, I haven't had time to research that or think, or even honestly spend time thinking through whether that's true or whether there are other cases where that has been the case.

So I'd love to get Ramya's thoughts on that as well. If you, if you have any, I just wasn't sure whether that's right.

Ramya Krishnan: You know, I, I'm not sure either. I mean, Judge Malloy rejects, I think the state tried to draw an analogy to sort of anti-terrorism laws and there are a number of, you know, anti-terrorism laws at this state level. But the judge said, well, those laws are different because you know, ultimately a state has an interest in protecting its citizens from violence. But that's not the case where a state is primarily motivated by concerns about a, you know, a foreign adversary. I'm not sure I'm entirely convinced by that distinction, but honestly, it's not an issue I've thought a lot about.

Mary-Rose Papandrea: Yeah, it's, it's, you're exactly right. That's what he says. And it's not entirely persuasive, maybe given all the state laws that are aimed against terrorism. But he, you know, he concludes that there was pervasive anti-Chinese overtones in the case. And that seems to be maybe the bigger problem, I'm not sure.

This is the kind of thing that  I would love to see if, if this case does continue, you know, more detailed analysis of this particular issue. It may not matter because this law is a hot mess that it is not well written and this particular state interest, even the state, is not pressing because it knows it's the loser.

So we may not get, even in this case, that kind of clarity. But I did think that that was a curious part of the court's decision.

Matt Perault: So I was interested to see, and this is in line with what you just said, that Judge Malloy notes, it was almost in passing, the pervasive undertone of anti-Chinese sentiment that permeates the state's case and the instant legislation.

It wasn't clear to me to what extent that's dicta or whether it's actually shaping his decision, but it seems to inform his skepticism of what the state is going after here. Were you expecting this to feature in judicial analysis of the TikTok fans?

Mary-Rose Papandrea: Oh, I mean, I, I, I'm not sure that it is relevant. I mean, it, it, if the state can protect privacy or it can protect against espionage, which are, you know, interesting questions, I'm not sure that having animosity towards people who are engaging in, countries, engaging in espionage or stealing data is problematic.

So like, that's, that's an interesting point, you know, maybe, maybe animosity is not you know, or animus, you know, usually we don't like animus, but if the animus is directed at a country that is in fact engaged in espionage, then I'm not sure that that's problematic.

Ramya Krishnan: Yeah, I, I found the reference to animus here really interesting.

I wasn't entirely sure how it sort of like fit into the court's analysis. If I were to guess, I'd say, you know, I think animus is traditionally relevant to show that the state interest asserted is really a pretext for the state's, you know, real motivation. And I think the judge's sense that this was motivated by anti-China sentiment was probably for him further evidence that the state's purported interest in protecting Montanan’s data privacy was not a real interest, was not, you know, what was truly operating here.

And I think he's probably right about that. This just was a massive disjunct between what the, you know, apparent interest behind these, this law was on the face of the law and what the state's lawyer was saying in its briefing and, and in argument. And I think that really played, played a role in, in the court's decision here.

Mary-Rose Papandrea: Yeah, you're absolutely right. It, that, that concern that the real interest here was just going after a Chinese owned company is throughout the court's opinion, even though he mentions that this part about the pervasive anti-Chinese overtones, he mentions that specifically in this part about protecting against espionage, whether that's a legitimate state interest. But it does to your point pervade the entire opinion, this concern that really what was happening here, including a provision in the law itself, which said that if the company were sold or transferred to a non Chinese company, that the law would then be void.

I mean, that was again, later in the opinion, the court cites that as well as another clear indication that this was not about privacy, not about dangerous content, not about spying on journalists, but really anti, anti-China.

Matt Perault: Yeah, and so he deals with that sort of as a, in terms of talking about the sentiment and the animus there, but also in terms of the implications for preemption, because he says basically what you're trying to do here is essentially regulate foreign affairs, and foreign affairs is the exclusive domain of the federal government.

What do you think about that component, and is that likely to be another way that people try to address and rein in restrictions against TikTok?

Mary-Rose Papandrea: First, I'll just summarize the two, two laws that the, that the plaintiffs argued preempted the state law. One was the, Section 721 of the Defense Production Act, and the other was the International Emergency Economic Powers Act.

So I'll start with the last one first, because the court dealt with that very quickly. The International Emergency Economic Powers Act gives the president power to deal with unusual and extraordinary threats from outside the United States, but the law expressly provides the president cannot regulate personal communication.

So the court notes, there really can't be a conflict directly with this law, since the law itself does not allow the president to regulate communication, so, personal communications, which would, I think, cover TikTok. The, but, but he does find the plaintiffs do have a likelihood of prevailing on their argument that the Montana law is preempted by this Defense of Production Act.

Now they, they say that it does seem like the court isn't 100 percent sure. Again, it's a likelihood of success. This law establishes the Committee on Foreign Investment, which conducts investigations into the effect of foreign transactions on national security. And there is a pending negotiation underway.

We may, I can't remember whether we mentioned this last time. But the court says that you don't need to have express preemption, the fact that there is a Committee and there is a mechanism for considering the divestment, that was enough for there to be preemption under that law. So that's what the, that's what the court provided. I do think it's not a hundred, you know, I I think this could go the other way because there isn't exactly an express preemption on this.

It's just kind of atmospherically. This law seems to cover or address the concerns. Again, the primary concerns that the law seems to be addressed at, which is the threat this Chinese owned company poses to national security, that this law is the law that Congress has passed and created this committee to deal with this problem.

Ramya Krishnan: Yeah, I'm not sure how much I have to add, add to that. I mean, I do, I did find this, and this kind of circles back to a point we discussed earlier, this idea that a state can never regulate in the sphere of foreign affairs is interesting, and I kind of wonder what the limits of it are. You know, this issue has come up in the context of state anti-BDS boycott laws, for example, because the rationale or one of the rationales often given by state legislators and governors when passing these laws is to express, to demonstrate the state's support, you know, of Israel.

And so some have said, well, you know, this seems to be touch on a foreign policy issue. Is this really a legitimate state interest? But you can imagine other state laws, for example, imagine, you know, California passes a law that requires the supply chain or processes of a company to conform to international human rights standards, I don't know. Like, does that touch on foreign policy? So I guess I both understand, it has a kernel there that seems compelling to me. But I, but I also wonder if it just what the limits of this kind of argument are.

Quinta Jurecic: Judge Malloy also found that the ban oversteps Montana's state authority under the Commerce Clause, which I found particularly interesting in connection with this broader preemption argument because it, it points to a range of issues outside the First Amendment that, you know, I think have kind of fallen under the radar when it comes to discussing these bans.

We often focus on First Amendment concerns, but there are many, many other issues and these issues in terms of foreign affairs preemption and Commerce Clause issues in particular strike me as things that could potentially be on the table with lots of other state legislation when it comes to tech regulation.

So should we be paying more attention to these issues when it comes to state efforts to set tech policy. Mary-Rose, let me start with you.

Mary-Rose Papandrea: Yes. No, I mean, I think that so, so just to, a word about what the court held. It pretty quickly held that that this law violates the Dormant Commerce Clause, the court said the question is whether the burden on the commerce is clearly excessive in relation to the benefits.

And the court said, you know, we have a lot of discretion in doing this balancing test, but because Montana here really hasn't done a good job identifying the benefits that the court quickly held that the burdens on the users of the apps certainly outweighed any of these sort of rather undefined benefits of the law.

But you're exactly right that this should be the type of argument we see in the Texas and Florida social media cases, but they're not the, the, the, those litigants have not, at least I don't think, really made a robust, if at all, Commerce Clause argument, Dormant Commerce Clause argument. I think it is a concern.

I would imagine from the tech company's point of view, you know, this has often been said, like we're trying to regulate state to state. There 50 states. It's, it's somewhat of a nightmare to even imagine how they do that. You know, how they even know where the users are and that might require even more surveillance, which seems bad.

But it might be that that was a strategic reason, you know, that the companies strategically or NetChoice have strategically decided not to make a Dormant Commerce Clause argument because they really don't want the U.S. government making these regulations either. So they, they want to have a knockout punch more on a First Amendment grounds that, again, I'm not involved with the litigation strategy of those cases. So I'm just positing there.

Ramya Krishnan: Yeah, I think we're going to see this Dormant Commerce Clause issue rear its head in a lot of digital internet free speech cases in the coming years. Because I think, you know, the basic question posed by many of these laws, particularly the, you know, the more ambitious among them, is to what extent should a state be able to set internet policy, you know, for the entire country.

And I think that that, that, you know, that it's another issue that falls into the bucket of, I'm not exactly sure what the right answer is, because of course, the scope of the Dorman Commerce Clause affects, will affect, not only a state's ability to regulate the social media platforms or the internet more broadly, but really in any sphere.

I mean, for example, should California, through the emissions standards it sets for cars, be able to set climate policy for the entire country? So I think that these, these cases just raise, or this particular issue raises really interesting and thorny questions that are definitely going to need to be worked out and probably we will see opportunities for them to be worked out in future cases.

I don't know that this is the case we need it to be worked out just because, you know, I think the answer to the First Amendment question is so clear. I was a little bit puzzled why the judge wanted to take on all of these additional other bases when he didn't have to. Usually judges don't decide questions when they don't have to, but he seemed eager to.

But yes, definitely an interesting question.

Mary-Rose Papandrea: That's such a good point. Like why decide these, you know, especially the preemption questions, like these are somewhat tricky questions. Why not say, you know, there are these other arguments, but we need not address them at this stage. It's interesting. Good point.

Quinta Jurecic: So I also want to make sure that we talk about the Texas litigation, which Ramya, you mentioned at the beginning. This is a case filed in First Amendment grounds by Knight against the more limited Texas ban on state employees accessing TikTok on work devices. Can you talk about that ruling and how it kind of compares to the Montana ruling?

Ramya Krishnan: Yeah, absolutely. So first, just a little bit about the case. We represent the Coalition of Independent Technology Research, which is a group of academics, journalists, civil society researchers, communities, scientists that advocate for and organize in the defense of public interest research about the platforms.

Among their members are faculty at public universities in Texas whose teaching and research has been affected by Texas's ban which requires. all agencies, including public universities in the state, to prohibit their employees from accessing TikTok on state owned devices and networks, but also on personal devices that are used to conduct state business.

And essentially the court applied a very different framework in this, in this case because it did involve state property. It applied a much more lenient framework than the one, you know, we advocated for in the case. Judge Pittman applied a reasonableness test, finding that university networks and devices are what is called non-public forums.

When, you know, we argued that he should have applied the more stringent test that applies when a government imposes a broad ex ante restraint on public employee speech. And then ultimately he found that the ban was reasonable when in our view it wasn't. So, he found it was reasonable ultimately because he said the state was motivated by legitimate data privacy concerns because the ban was limited to state employees.

And because state employees could still access TikTok on personal devices that aren't used to conduct state business. So, it was a disappointing and surprising decision. You know, restricting, restricting research and teaching about TikTok isn't necessary. It's not a necessary or effective solution to data privacy concerns about TikTok.

In fact, it's counterproductive because essentially the state is hamstringing researchers from studying the very risks it says it cares about. And what was, interesting about the decision is that essentially the judge didn't bring or didn't show the same skepticism that Judge Malloy showed in, in his decision about Montana's ban.

He credited the government's concerns about data privacy. And, you know, we said all in the case that these are legitimate concerns. What we argued is that the ban was not, not a necessary or effective response to those concerns, but the judge largely didn't credit those arguments either. He said, you know, because these data privacy concerns are legitimate and the government doesn't need to adopt the most reasonable response, any reasonable response will do.

This ban is fine, but the reasonableness of this ban I think is belied by the fact that, you know, well, essentially the reasons Judge Malloy gave in his decision. TikTok bans are ineffective because other companies collect sensitive data about Americans including government employees, and the same data that TikTok collects can be collected through other means, including data brokers.

They're unnecessary because states can pass privacy laws to address any privacy concerns that they have about the company's data collection practices. And then the additional reason here is that really stifling research about the very concerns you purport to have would seem to be counterproductive.

So, yeah, an unfortunate decision. We certainly disagree with it, but it's interesting to see these two very different decisions about TikTok bans. Obviously, Montana's is a much broader ban than Texas's. And in some way, this decision validates an early concern that we had that broad bans like Montana's make other, you know, state employee bans seem reasonable in comparison when, in fact, they raise themselves very serious First Amendment consents.

Matt Perault: I'd love to just pause and go a little bit deeper on this research question specifically. I guess this isn't a question about legal analysis exactly, but it does seem like it's an important thing to consider in evaluating some of the restrictions, Ramya, that you're describing and it's something actually that Mary-Rose and I working for a state university in a state where one of these restrictions applies, where we've actually seen this like up close where researchers are actually panicking.

I remember something going around among a group of colleagues for researchers who wanted to study TikTok and are no longer able to do it, at least able to do it lawfully or without bearing some legal risk. And so, Ramya, I'm curious, in the course of your work in this case, are there examples of research that you saw that are really chilled as a result of this, particularly into, as you say, exactly the kinds of issues that are at the center of this case, such as whether there are censorship practices on TikTok or surveillance practices on TikTok that do pose national security risks.

Ramya Krishnan: Yeah, absolutely. I mean, we, in the context of bringing this case, we spoke to numerous faculty members in public universities in Texas who want to study TikTok but have been scared off by this ban for doing so. In our lawsuit, we tell the story of one of these faculty members, a member of the coalition, Dr. Jacqueline Vickery at the University of North Texas, whose work, including about youth privacy, has been chilled by the TikTok ban.

And I think her story is a good example of why saying, oh, well, you know, faculty can just use their personal devices to do this work is really not at all convincing. She, like many faculty at public universities, don't necessarily have personal devices on which, that aren't used to conduct state business.

It's important to remember state business can include anything. It could include something as simple as accessing your university email or university Zoom account or even a, you know, Word application, Microsoft Word application that has been licensed by the university. So many academics just don't have personal devices that fall outside the ban.

Or the personal devices that they have, cell phone, for example, are not devices on which they can feasibly conduct research. But more fundamentally it would seem unreasonable to expect academics like her to, to do their jobs, you know, on their own time and own dime. I mean, they, university academics should be able to conduct their research using equipment provided by the university, at the university.

So I mentioned research, but another implication of these bans is that academics like Dr. Vickery are unable to teach about or using TikTok in their classrooms. You know, she often had lesson plans where she would get her students to interact with the platform in real time to look at their community standards or privacy policies, to look at the, to be able to interact with the affordances of these platforms so that they could better critique them. And that is something that she is no longer able to do in the classroom about one of the, you know, most popular communications platforms in the world today and the platform that, is often the one that is most used by young people. So it's absolutely having a chilling effect on sort of important research about the platform, including the ways in which the platform is used for disinformation, but also where it falls short in terms of privacy.

Mary-Rose Papandrea: This case is so interesting. So first of all, I really am happy the Knight Institute brought this challenge and I hope it continues to push it. It was very disappointing that the court used the public forum doctrine to analyze, to use that as its framework, rather than focusing on the rights of public employees.

Now I say, unfortunate, I, I want to point out, there was a Fourth Circuit decision, Urofsky, that held that professor, they did use the public employee framework, and they rejected the argument that there was some sort of academic freedom to access sexually explicit materials for, on work computers.

But I was just reviewing that opinion. And even in that instance, the law had a waiver mechanism so that people who were doing bona fide research on sexually explicit material could receive a waiver. So there is the, the opinion as a whole is unfortunate because it says that academic freedom is a right that belongs to the institution and not to professors. So that part is unfortunate. Even that law did have a waiver and I don't think that the Texas law has that waiver.

I feel strongly that the government should not have a free pass to ban access to platforms and, and get analyzed under a very lenient or, you know, toothless reasonableness standard. Again, the Fourth Circuit in a different context, there was a case brought by women who thought that they, they're, they were, their Title Nine rights were violated by harassing speech on a different platform, Yik Yak, that the school should have banned. This is a public university, should have banned Yik Yak. And the district court avoided that question, but noted that it would raise some significant First Amendment issues. And similarly, the Fourth Circuit also dodged that question.

So I think whenever you're talking about banning an entire platform, you know, not here, I think the, the, the argument was styled as access to the information, but it also bans people from speaking as well. And I, and I think that for all the reasons we, we were talking in the month, in the context of the Montana law, it's highly problematic, even if it's just in the context of the state owned devices and the state owned network. And for all the reasons already said, you know, about how these laws are not even achieving remotely their goals.

I think it's very dangerous to say that the state just has this almost carte blanche power to restrict people on campus, researchers, students, staff, like anybody from accessing a website or platform, you know, absent, let's just go back to prior restraint, you know, absent of very significant showing. So I, I am very unhappy with the Texas decision and I hope that on appeal, it gets reversed.

Quinta Jurecic: So looking forward, there was an interesting story recently in the Washington Post about public support for TikTok bans, and that it's plummeted pretty sharply. So it would be supported by 38 percent of adults today as opposed to 50 percent in March. That's a pretty steep fall when it comes to public opinion on this issue.

And I'm curious what both of you think about how this decline in public support for a ban should shape our understanding of the ongoing litigation and of state and perhaps federal efforts to ban or limit access to TikTok. Would you expect to continue to see these attempted bans, like a broad Montana ban or a narrower Texas ban, or is it possible we are already kind of at the end of this trend? Mary-Rose let me start with you.

Mary-Rose Papandrea: I did not see that article. I would be interested in looking at that survey and seeing the ages of people and where the support is because, you know, I, and I am not a politician.

This does seem more like a political, you know, whether this has political valiance, you know, especially as we come into elections in the fall, 2024. You know, I, I imagine that older people, maybe they are, who are more likely to vote still love this, like China's terrible and we hate TikTok, you know. Obviously that Montana ban, you read the legislative history, like there's a lot of scoring political points there in that law.

And, and, and, you know, and I imagine that in certain parts of the country and certainly still with certain age groups, I'm just guessing, cause I didn't see the survey that, that, that there's still some political valence, but you know, is it as strong? Probably not. I think young people and other users have pointed out how important TikToK is to their business, you know, citing the business models that they're that of the, you know, users of TikTok are able to point to. That has maybe some real appeal to people who are opposed to these kinds of measures.

Quinta Jurecic: Yeah, Ramya, you get the last word

Ramya Krishnan: Yeah, I wish I could read the the tea leaves, on this one, but you know, unfortunately, our elected officials aren't always responsive to public opinion.

So I don't know how much they're going to be guided by this recent loss of, you know support for these kinds of bans, but I hope that they are. I think there has been, you know, extremely effective advocacy being done by free speech and privacy groups about you know, why these bans just aren't a good solution to the very real problems that exist around privacy here.

I wonder if, if that message is getting through, but it was certainly good to see Judge Malloy really understand, understand that point, that critical point in, in his opinion, that if you care about privacy, pass a privacy law, anything else is going to be a poor substitute.

Quinta Jurecic: All right, let's leave it there.

Ramya, Mary-Rose, thank you so much for joining us.

You've been listening to Arbiters of Truth, a Lawfare Podcast series on the information ecosystem. You can find past episodes in the Lawfare Podcast feed. 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.

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