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 ...
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