The Lawfare Podcast Lawfare Archive: TikTok Ban at the Supreme Court
Mar 22, 2026
Ramya Krishnan, a First Amendment and national security lawyer, and Alan Rozenshtein, a constitutional and national security scholar, break down the Supreme Court oral arguments over Congress’s divest-or-ban law for TikTok. They explain the statute’s mechanics, the government’s data and manipulation rationales, competing First Amendment frameworks, practicalities of divestiture, and possible judicial paths and timing.
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What The TikTok Law Actually Does
- Congress passed PFACA to force ByteDance to divest TikTok within 270 days or face an app distribution and cloud-service ban in the U.S. .
- The law targets app stores, cloud providers, and possibly DNS, imposing $5,000 per-user penalties and not directly banning individual access.
Dual Government Justifications For The Ban
- The government defended the law on two grounds: data security (espionage risks from ByteDance) and content manipulation (algorithmic influence by China).
- The D.C. Circuit upheld the law on both rationales and the Supreme Court received the classified record too.
Scrutiny Levels And Secret Evidence Issue
- The First Amendment tiers were contested: Judge Ginsburg assumed strict scrutiny but found national security strong; Chief Judge Srinivasan favored intermediate scrutiny.
- The D.C. Circuit said it did not rely on classified evidence in its public opinion.