Free Speech Unmuted

Can Congress require China-based ByteDance to divest itself of TikTok as a condition for TikTok continuing to be easily accessible in the US? Alan Rozenshtein, Jane Bambauer, and Eugene Volokh discuss whether the law is consistent with the First Amendment – and with the much more rarely talked about Bill of Attainder Clause. To view the full transcript of this episode, read below: Free Speech Unmuted Eugene Volokh: Hello, welcome to Free Speech Unmuted from the Hoover Institution. I'm your co host Eugene Volokh, now basically emeritus from UCLA Law School and a senior fellow at the Hoover Institution. Jane Bambauer: I'm Jane Bamberger, the Breckner Eminent Scholar and Professor of Law at University of Florida. And today we have with us Alan Rosenstein. So Alan, tell us, tell us about yourself and correct my pronunciation of your name if I just butchered it. Alan Rozenshtein: Sure. it's Rosenstein, but I, don't, I don't, wait, Eugene Volokh: wait, a minute. You, spell it Alan Rozenshtein: Rosenstein. I can't, I, I cannot, I am not responsible for my parents immigration choices. Eugene Volokh: Exactly. So Alan and I. are both of Russian Jewish extraction. I was actually born in Kiev and it came here when I was, seven. Alan's parents are from, from Russia. I don't know the former Soviet union, but he was born very [00:01:00] shortly after they came. So there is always this question of how you, how you transliterate the relic names into something that Americans can pronounce. And I, I'm not sure either of our parents did a great job with that. mu much as we love them on this particular point, they may have aired. Alan Rozenshtein: it's funny because both of our names have these silent Hs and I like to joke that there's a STL somewhere that's missing an H. There you go. Found its way into my name. It's s. Eugene Volokh: But I'm sorry to have interrupted, Alan, tell us about yourself. Alan Rozenshtein: Sure. I'm an associate professor of law at the University of Minnesota where I've taught now for seven years. And I am also a senior editor at Lawfare where I do a lot of my writing on the sorts of topics that we're going to talk about today. and before that, I was a, attorney at the Department of Justice in the law and policy section of the National Security Division. Jane Bambauer: Yeah, so we're here today to talk about the tick tock ban or so called tick tock [00:02:00] ban it will see what, whether it actually, you know what its future actually has in store. But can you tell us a little bit about the law that was passed by Congress and signed by President Biden and then. We'll figure out what the free speech issues are. Alan Rozenshtein: Sure. So the law and, this is actually one of these, cases where Congress did not use a backer name for some reason, it's the protect Americans from foreign adversary controlled applications act. So it's perfect. Jane Bambauer: Yeah. Which is, Alan Rozenshtein: which is not great. which is not great. So we're just going to tell, I'm going to call it the tick talk law. so this was a law that was introduced in the house as part of the, bipartisan select committee on China, sailed through the house, a few months ago, surprising a lot of people how quickly it went through. It seemed to stall in the Senate for a while, but then for a number of reasons, including some changes made to the [00:03:00] law and then the broader, foreign aid package that went through. To assistance to Ukraine, Israel in particular, this was, signed or enacted by Congress and signed the law by the president. I think late last month, and the law, is sometimes called a, it's called by its supporters as a divestment law, it's called by its opponents as a ban law. Basically what it does is it requires bite dance. The Chinese company that owns approximately 20 percent of TikTok to, divest itself of TikTok. And if it doesn't do so within a little less than a year. TikTok is banned now. What band means is a little complicated. really what it is that, the law actually applies to, app stores and in particular, internet providers. They're not allowed to, Host tiktok services, so it doesn't actually make for consumers using tiktok illegal or anything. But given that the vast, majority of people just want to use a, [00:04:00] social media platform without too much, fuss, once the app stores stop carrying updated versions of tiktok. And once it gets, hard to use tiktok through the website, through your internet service provider, the assumption is that tiktok will be for the vast majority of people effectively banned. Jane Bambauer: Yeah. Okay. so you've written on Lawfare about the First Amendment implications and I understand you're going to have another post coming out soon. We'll link to both of those. But what do you make of this? how would you apply First Amendment jurisprudence to this particular law? Alan Rozenshtein: Yeah, no, it's an interesting question. And to be honest, I, it's funny. I, I, have never thought of myself as a first amendment scholar, though, in the last year or two, just given how much time I spend thinking about all things internet related, I feel like I've become one. But really, I think of you two as far more expert in this than I am. So I have my own ideas, but I'm actually very curious This is what you two with kind of a much longer history of thinking about the First Amendment think, so [00:05:00] I think of myself as in the minority of scholars, not a tiny minority, but I think a minority of scholars who think that although the First Amendment arguments that TikTok and TikTok users will be making, against this law, although the arguments are strong, that ultimately the government actually has a pretty good Case and I think more likely than not that the first amendment that the government will ultimately prevail You know at the end of the day and here I'll cheat a little bit in answering your question Jane because When one traditionally starts a first minute analysis the most important thing to do once one has decided that The first time it actually applies so that this is First Amendment protected activity. And I think here there's general agreement that the first time it definitely is implicated is one has to figure out what the appropriate quote unquote tier of scrutiny is. is this a prior restraint, which is the highest level of review? Is it [00:06:00] a viewpoint based? Law. Is it a content based law? Is it a content neutral law? In which case, it's not strict scrutiny, but intermediate scrutiny. And then all these gradations in between, and again, it's something that you two who are real first known scholars know one can spend infinite brain cycles thinking about this. And I think one thing that's interesting about this law is that I think they're actually plausible arguments for all of those positions. I think you can argue that it's a prior restraint, that it's viewpoint based, that it's content based, that it's content neutral. I think part of that is because this is a, I think a pretty novel fact pattern, at least in First Amendment jurisprudence. I think it's also the fact that the tiers of scrutiny analysis has never been, I think, particularly clear. And when I said I'm gonna cheat in your answer a little bit, what I meant is that I think at the end of the day it doesn't matter all that much. Which is to say, at the end of the day, the vast majority of First Amendment cases come down to some sort of balancing of the various interests at stake. And this is particularly true at the Supreme [00:07:00] Court, where, you really, I'll be a little bit of a legal realist here. It's really all about can you count to five justices that will agree that your side's values are more important than the other side's values. and that although the tiers of scrutiny do real work in that they, function as kind of presumptions, if the court concludes that such and such is a prior restraint, then presumptively the government's going to have a big problem, though sometimes prior restraints are fine. Similarly, if the court concludes that this is merely a neutral time, place, and manner restriction, presumptively the government's probably going to be okay, though those are also struck down all the time. At the end of the day, a lot relies again, especially in really high profile, sui generous cases like this on the specific facts. in my writing on this, I have tried not to, and again, I'm happy to get pushback, from, you too. I have tried not to spend too many cycles worrying about exactly what level of scrutiny should apply here. And instead, just [00:08:00] try to outline what are the values on each side? What are the values The First Amendment interests of TikTok, and I think more importantly, the 150 million American users of TikTok on the one hand. Versus on the other hand, what are the government's interests here in potentially banning TikTok, or at least really risking a ban of TikTok? and there are two in particular. One is a data privacy concern, because in the course of personalizing the TikTok algorithm for users, TikTok collects an enormous amount of information on what it is that you are watching and clicking and liking and disliking. and TikTok and therefore ByteDance and therefore the Chinese Communist Party could potentially use that information to America's detriment. So that's the data privacy concern. And the other concern is a foreign manipulation concern. That, because TikTok is You know, entirely run by the algorithm is totally inscrutable. if [00:09:00] a foreign entity can influence that algorithm, they can influence the information ecosystem of 150 million Americans and not just 150 million Americans, but because of TikTok, because TikTok is so popular among young people. And for those young people, TikTok is not just a source of fun cat videos, but it's actually the main source of news that they get. one can imagine, just generally, or especially in a conflict, let's say o

Erwin Chemerinsky – a noted scholar, author on academic freedom, and law school dean – comes on the podcast to discuss campus free speech and academic freedom. We begin with student speech controversies (including the one that was literally in Erwin’s back yard), and then we move on to faculty academic freedom, in scholarship, public commentary, and teaching.

When can colleges and universities discipline students based on the content of their speech? When can they impose content-neutral restrictions on the time, place, and manner of demonstrations? Given that the First Amendment applies only to government operations, what rules apply to private institutions?

Is AI output generally protected by the First Amendment, even though AIs have no self to express (or so we think ...)? Can people sue if they are libeled by AIs, or if AIs give them false information that leads to physical harm? Jane and Eugene discuss this, and more. ABOUT THE SPEAKERS Eugene Volokh is a visiting fellow (soon to be senior fellow) at the Hoover Institution. For thirty years, he has been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (7th ed., 2020) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court. Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

The First Amendment protects against certain kinds of indirect government suppression of speech, as well as direct. That means the government can’t coerce bookstores, platforms, and the like, to remove material. But when does persuasion become coercion? And when, if ever, is even noncoercive persuasion aimed at the removal of speech unconstitutional? ABOUT THE SPEAKERS Eugene Volokh is a visiting fellow (soon to be senior fellow) at the Hoover Institution. For thirty years, he has been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (7th ed., 2020) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court. Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.

Newspapers have a First Amendment right to pick and choose what to publish in their pages. Phone companies, on the other hand, aren’t allowed to control what’s said on their phone lines. Where do the various functions of social media platforms fit on that spectrum?

When public school libraries remove books based on the views expressed in the books, are they violating the First Amendment? What if the librarians stocking the shelves have a political agenda? It all comes down to a precedent called Pico, and Eugene and Jane disagree about which Supreme Court justices got the rule right. ABOUT THE SPEAKERS Eugene Volokh is a visiting fellow (soon to be Senior fellow) at the Hoover Institution. For thirty years, he has been a professor at the University of California – Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (7th ed., 2020) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court. Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies. RELATED RESOURCES: Board of Ed. v. Pico (1982)