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

Podcast: The Lawfare Podcast
Date: September 21, 2025 (original episode September 18, 2024)
Host(s): Kevin Fraser, Alan Rosenstein
Guests: Jane Bambauer (Levin College of Law), Ramya Krishnan (Knight First Amendment Institute and Columbia Law School)

Overview

This episode brings together legal scholars Jane Bambauer, Ramya Krishnan, and Alan Rosenstein with host Kevin Fraser to analyze the constitutional arguments surrounding the "TikTok Bill" (officially the Protecting Americans from Foreign Adversary Controlled Applications Act), especially as debated in the D.C. Circuit Court of Appeals hearing for TikTok v. Garland. The panel tackles First Amendment implications, national security concerns about TikTok's Chinese ownership, questions of user and creator rights, and the broader precedential impact on U.S. internet governance and foreign media access.

Key Discussion Points and Insights

1. Background & National Security Concerns

[04:23] Jane Bambauer introduces the intertwined arguments that propelled Congress to act against TikTok:

• Congress feared China’s influence on TikTok’s curation, potentially leading to algorithmic manipulation of American discourse, disinformation, or political division.
• There were concrete data privacy concerns, namely the risk of user data being accessed or controlled by Chinese entities.
• These anxieties culminated in legislation requiring TikTok/ByteDance to divest from Chinese ownership or cease U.S. operations.

“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...”
—Jane Bambauer [04:41]

2. The Legislation: The TikTok Bill

[06:59] Ramya Krishnan outlines the bill’s operations:

• ByteDance must sell TikTok by January 2025 or face a nationwide ban.
• Empowers the President to force divestiture of other apps controlled by “foreign adversary” governments.

Project Texas ([07:51] Alan Rosenstein):

• TikTok’s attempt to placate national security fears by moving U.S. data and operations to Oracle’s servers in the U.S.
• Facing skepticism: government claims source code and some operations would remain under Chinese control, making true independence impossible.

3. The Court Case: TikTok v. Garland – National Security Arguments

[11:25] Alan Rosenstein explains complications:

• Much of the intelligence prompting action is classified, inaccessible to TikTok and the public.
• Judges appear less interested in the secret evidence than expected—a striking departure from typical deference in national security cases.
• Congress based its decisions on classified intelligence briefings that deeply affected their stance.

“There was one meeting where a bunch of very skeptical Congress people went in, were talked to by the intelligence community for an hour and walked out, you know, Ash and White all ready to vote for the TikTok bill. So clearly they heard some stuff that made a difference to them.”
—Alan Rosenstein [11:46]

4. First Amendment Arguments

• For TikTok (Platform’s curation rights):
  [16:21] Ramya Krishnan critiques TikTok’s legal strategy as “perhaps a strategic mistake,” focusing too much on the platform’s curation rights and not enough on users’ rights. The judges showed skepticism regarding the platform’s claim to “important First Amendment right” due to foreign control.

• For Users/Creators (Right to receive information):

  • The claim turns on 170 million American users’ right to access information.
  • Judges and panelists agree: the real stakes are user rights, not TikTok’s corporate interests.
  • Government faced grilling about the Supreme Court’s Lamont v. Postmaster General, which protects Americans’ right to receive even “foreign propaganda.”

“The real stakes of the case…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.”
—Ramya Krishnan [16:38]

• Judicial skepticism:
  [20:24] Alan Rosenstein: TikTok overplayed reliance on NetChoice precedent about platform curatorial rights, while failing to hammer home users’ rights. The government’s broadest argument (“no First Amendment issue at all”) was repeatedly challenged by the judges.

“TikTok is a US entity...but no one cares. What they actually care about is the right of 170 million people.”
—Alan Rosenstein [20:36]

5. Standing and the “Foreign Ownership” Question

[24:05] Jane Bambauer and panel:

• Judges questioned whether users have a legal interest in platform ownership.
• Jane emphasized users benefit from the platform’s curation styles and thus are affected by government interference.
• The government’s argument that users/lawyers lacked standing was roundly criticized as extreme, “deeply offensive,” and "silly" by Alan ([27:51]).

“Obviously there's a First Amendment issue here. Obviously they're standing. The question is just, right, what's the level of scrutiny and what are the values on both sides?”
—Alan Rosenstein [28:37]

6. Deference to Congress & National Security Precedent

[32:02] Jane Bambauer reflects:

• Judicial deference to Congress in national security was a through-line, but she warns such deference was the basis of illiberal First Amendment rulings in the early and mid-20th century.
• Urges caution: scrutiny and skepticism remain judicial duties, especially when speech is involved.

“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...”
—Jane Bambauer [32:32]

[33:45] Alan Rosenstein:

• Judges may be inclined to uphold the law, especially when the adversary is China and Congress has spoken after classified briefings.
• Courts are uncomfortable drawing bright lines on national security when the executive and legislative branches have spoken.

7. Normative Stakes & Predictions

[36:41] Ramya Krishnan:

• Argues for the value of foreign speech, even—and especially—in times of war.
• Suggests courts must resist de facto censorship and defend the principle of “more speech, not enforced silence.”

“The remedy to bad speech is more speech, not enforced silence. That's the hallmark of an open society.”
—Ramya Krishnan [37:10]

[39:10] Jane Bambauer:

• Points out the hearing revealed little new about the actual risk of manipulation; the danger might be more speculative than government claims.

8. Panel Predictions

• Alan Rosenstein: Predicts a unanimous (3-0) decision for the government, upholding the TikTok bill, with a ruling heavily reliant on China’s adversarial status ([41:03]).
• Jane Bambauer: Holds out hope for a dissent (2-1); expects at least some careful scrutiny of the speech issues ([41:51]).
• Ramya Krishnan: Sees a likely 2-1 or 3-0 loss for TikTok, but highlights the doctrinal error of separating foreign speakers from domestic listeners ([42:40]).
• Kevin Fraser (host): Also leans 3-0 for the government, citing congressional and national security deference ([43:58]).

Notable Quotes & Moments

• On the limits of government argument:
  “The government's attempt to make this case go away on legal grounds has always struck me as...I find that... there's no legal issue here... to be, like, deeply offensive. It's a ridiculous statement.”
  —Alan Rosenstein [28:02]

• On speech in wartime:
  “It is especially important during wartime that we hear foreign perspectives. And it is dangerous…to just because we're at war, give the government unfettered authority to prohibit Americans from accessing foreign sources of information.”
  —Ramya Krishnan [38:26]

• On legislative intent:
  “I think it's going to be 20 pages of the following sentence. But it's China, just over and over and over again.”
  —Alan Rosenstein [41:06]

Key Timestamps

| Timestamp | Segment / Topic | |-----------|---------------------------------------------------------------------------------------| | 04:23 | Jane Bambauer explains Congress' national security concerns | | 06:59 | Ramya Krishnan explains the TikTok bill and divestiture requirements | | 07:51 | Alan Rosenstein breaks down “Project Texas” as an alternative security strategy | | 11:25 | Alan discusses the role of classified evidence in the congressional and court record | | 16:21 | Ramya discusses flawed legal strategy in TikTok’s First Amendment arguments | | 20:24 | Alan analyzes NetChoice precedent and user rights issues | | 24:05 | Jane on users’ interest in platform ownership and curation | | 27:51 | Alan on the absurdity of government "no standing" argument | | 32:02 | Jane emphasizes caution with judicial deference to Congress on national security | | 33:45 | Alan on judges avoiding being the arbiters of national security threat thresholds | | 36:41 | Ramya on the value of foreign speech and government overreach | | 39:10 | Jane notes the lack of concrete evidence of Chinese manipulation | | 41:03 | Panelists predict court outcomes |

Takeaway

The episode offers a deeply informed and often spirited debate on whether the government’s forced divestiture or ban of TikTok on national security grounds can withstand constitutional scrutiny. The consensus is that user free speech rights deserve serious attention but are likely to be trumped by judicial deference to Congress and executive assessments of China as an adversary. The hosts and guests highlight the stakes for precedent, speech, and state power over digital platforms.