Advisory Opinions — "What’s Next for TikTok"

The Dispatch | January 29, 2026
Hosts: Sarah Isgur & David French

Episode Overview

This episode confronts the legal and political fallout from the TikTok sale mandated by the 2024 "ban or sale" law. Sarah Isgur and David French dissect whether the transaction fulfills legislative requirements aimed at addressing national security concerns and user data privacy, as well as broader implications for the rule of law and content moderation. The hosts also touch on circuit court cases involving the Federal Tort Claims Act (FTCA), Second Amendment rights, qualified immunity, terrorism liability, and respond to a thoughtful letter from 9-year-old listener Claire about becoming a lawyer.

Main Topics & Key Insights

1. The TikTok Sale & Compliance with the Ban-or-Sale Law

[03:14 – 11:22]

• Background: The 2024 law prohibited "any cooperation with respect to the operation of a content recommendation algorithm" between ByteDance and any new American owner.
• Deal Details:
  • ByteDance maintains 19.9% ownership and a board seat (still the largest single stakeholder, but not a majority).
  • The algorithm is licensed by ByteDance to the spinoff; its recommendations are stored in Oracle’s US cloud.
  • Oracle, Silver Lake, and MGX (Emirati investment co.) each hold 15%.
  • ByteDance still controls e-commerce and marketing globally.
• Legal Question: Does this structure violate the prohibition on algorithmic cooperation?

Key Arguments:

• Sarah Isgur:
  • Stresses that an ongoing license relationship is "cooperation" (see [08:14]) and doubts full compliance.
  • Points out the failure to enforce the law for over a year undermines the rule of law:

    “For a year…a law passed by Congress signed by the President did not go into effect and was blatantly disregarded. So that's bad, regardless of what happens next.” — Sarah, [08:14]

• David French:
  • Sees the transaction as an exercise in political expediency, not legal compliance.
  • Highlights new allegations of anti-Trump content suppression under the new American-influenced owners, but is skeptical these are legal violations.

    "What it really seems more like to me is Trump sort of keeping TikTok alive while he was able to help political allies execute a deal." — David, [06:15]

  • Calls the process an “absolute failure of the rule of law” [06:55].

Free Speech & Algorithm Moderation:

• First Amendment Issues:
  • Both hosts agree private platforms can moderate content as they choose, unless compelled by the government.
  • Sarah references the NetChoice case and corporate speech, suggesting the legal status of algorithmic speech is still unsettled:

    “The decision to moderate content, as in to take down certain content, et cetera, they said that was corporate speech. So there we are. It's a mess, David.” — Sarah, [10:51]

2. Ongoing Social Media Litigation: TikTok, Meta, and Snap Trial

[13:19 – 17:49]

• Trial in Los Angeles: Parents suing Meta, Snapchat, TikTok, and YouTube for “addictive” and harmful platforms targeting children.
• TikTok Settles:
  • Sarah expresses strategic surprise TikTok would settle out while the trial proceeds.
• Key Legal Theories:
  • Negligence and negligent failure-to-warn versus First Amendment protections for third-party content.
• Addiction Debate:
  • David draws parallels with pornography regulation debates, emphasizing the precise definition and difficulty of establishing “addiction.”

    “It strikes me as sort of like suing Lucky Charms because they have a brightly colored box and they say it's magically delicious. Which, by the way, is truth in advertising. It is magically delicious." — David, [16:44]

3. Minnesota Police Shootings FTCA Deep Dive

[17:49 – 31:08]

• Clarification: Distinction between ICE (Interior Enforcement) and Customs and Border Protection (CBP) roles in recent Minnesota incidents.
• Federal Tort Claims Act (FTCA):
  • David provides an in-depth summary of FTCA applicability to law enforcement misconduct:
    • "The FTCA waives the federal government sovereign immunity from suit as to certain torts committed by federal employees acting within the scope of their employment." — David reading Gorsuch, [24:20]
    • Statutory exceptions notably include the "intentional tort exception" and "discretionary function exception", complicated further by inconsistent circuit interpretations.
  • Uncertainty prevails as to when discretionary function bars a lawsuit, particularly relating to constitutional violations.

    “It is not the case that there's no chance of recovery under the Federal Tort Claims Act. It is the case that it is an imperfect law, highly imperfect law with wide gaps in coverage... highly complicated, difficult and unclear. And other than that, is perfect.” — David, [30:38]

4. Circuit Court Roundup

A. Second Amendment Cases

[31:08 – 43:25]

• 5th Circuit (Hembury case):

  • Question: Does federal gun ban (922g) for felons apply constitutionally to simple drug possession?
  • Concurrence by Judge Willett centers on the “level of generality” in interpreting text, history, and tradition.
  • He suggests the court may eventually distinguish between violent and non-violent felons:

    “When you're 20, 25 years old, you have a felony, a nonviolent felony for drug possession... Is it really the case that this right of self-defense...you forfeited it for all time?” — David, [38:13]

  • David expects future SCOTUS rulings to address restoration of rights for non-violent felons.

• 4th Circuit (Sensitive Places):

  • Assesses Maryland bans on guns in various “sensitive places” post-Bruen.
  • Most bans (government buildings, transportation, schools) upheld; bans on private property open to public struck down.
  • Hosts skeptical of the blanket “sensitive places” application, question if bans in places like amusement parks and casinos really meet the standard.

    “I want to ban guns in those places. Do I think that that's what sensitive places means in a Second Amendment analysis? I don't know that I do, David.” — Sarah, [43:25]

B. Qualified Immunity (10th Circuit)

[46:11 – 53:54]

• Case with Framing & Tragedy:
  • Innocent man framed via murder-suicide, spends over a decade in jail before exculpatory evidence emerges.
  • Detectives denied qualified immunity due to withholding exculpatory evidence.
  • Hosts discuss trend of courts increasingly denying qualified immunity without explicitly changing doctrine rules.

    “It's not just that they're finding again, you know, they're finding no qualified immunity. I'm just seeing it in more and more circumstances where five years ago, 10 years ago, would they reach the same conclusion? I don't think so.” — David, [50:58]

C. Terrorism Liability (D.C. Circuit, TAMNA)

[54:04 – 56:39]

• Post-TAMNA Decision:
  • Court allows liability for companies that knowingly aided Hezbollah with payments and goods.
  • David, a veteran, emphasizes personal connection to attacks by Jaish al-Mahdi (JAM) and expresses approval.

    “I know first hand how deadly JAM is and I know firsthand how they attack Americans because they attacked us, they attacked my squadron, they killed people I served with and knew in Iraq.” — David, [55:43]

5. Responding to 9-Year-Old Claire: Becoming a Lawyer

[56:39 – 59:51]

• Advice Collected for Claire:
  • Be curious, ask questions, read widely, stay humble.
  • Many emphasize the “gap between the imagined world of law and the real world,” with much daily work being “drudgery” despite noble intentions.

    “The law is one of those professions where people often go into it thinking, as I'm getting paid, I am changing the world… and then you go into the actual job. And a lot of times…your work feels like drudgery, a lot of stress. You don't necessarily feel like…you’re changing the world… That gap…can really mess with your mind.” — David, [58:06]

Notable Quotes

• Sarah, on TikTok Sale:

  "If you have an ongoing license relationship, I don't know how else you would describe where someone owns something and they license the usage of it to you. That sounds like cooperation." [08:14]

• David, criticizing governance:

  “This was an absolute failure of the rule of law. This was an absolute failure. Presidential defiance for more than a year of a law passed for urgent national security reasons.” [06:55]

• Sarah, on content moderation:

  “The decision to moderate content...they said that was corporate speech. So there we are. It’s a mess, David.” [10:51]

• David, on Second Amendment ‘dangerous persons’:

  "If the bottom line of the text, history and tradition is that unusually dangerous weapons can be regulated and unusually dangerous people can be prohibited from possessing guns, it really does get into the definition of sort of who is, what is an unusually dangerous person. And I honestly think that's where the jurisprudence is headed." [38:13]

• David, on FTCA complexity:

  “It is not the case that there’s no chance of recovery under the Federal Tort Claims Act. It is the case that it is...an imperfect law, highly imperfect law with wide gaps in coverage...highly complicated, difficult and unclear.” [30:38]

Key Timestamps

• TikTok sale legal breakdown: [03:14 – 11:22]
• Social media 'addictive design' lawsuits: [13:19 – 17:49]
• FTCA and Minnesota case explained: [17:49 – 31:08]
• Second Amendment circuit decisions: [31:08 – 43:25]
• Qualified immunity case discussion: [46:11 – 53:54]
• TAMNA terrorism liability case: [54:04 – 56:39]
• Advice for aspiring young lawyers: [56:39 – 59:51]

Episode Tone & Style

Sarah and David blend serious constitutional and statutory analysis with conversational humor and the occasional personal anecdote. They maintain a collegial and explanatory tone, tackling complex legal doctrine while making them accessible and relevant to both law pros and curious lay listeners.

End of Summary