Court Upholds TikTok Divestiture Law

>> Eugene Volokh: Welcome to Free Speech Unmuted, the Hoover Institution podcast on free speech. My co-host is Jane Bambauer of the University of Florida. I'm Eugene Volokh of the Hoover Institution. We're gonna be talking today to lawyers that we are about the TikTok case. So Congress enacted a statute that basically requires, to oversimplify, TikTok's Chinese owners, indirect owners, to divest themselves of TikTok.

To spin it off to some non-Chinese controlled company, Chinese being of course, citizens of China. And the DC circuit, a three judge panel of the DC circuit just upheld that statute. Judge Douglas Ginsburg wrote the opinion, joined by Judge Naomi Rao and Chief Judge Sri Srinivasan mostly joined it.

But as to the free speech issues, he wrote a separate opinion which nonetheless is actually quite similar, reaches the same result, upholds this divestment mandate. And is in many ways quite similar to the majority opinion. This is not a bitter dissent, it's not a confrontational dissent. But even focusing just on the substance and not the tone, it's a different approach to things, but ultimately quite compatible with the majority's views.

So there are several issues there. We're gonna start and focus mostly on the free speech issue, but there are some other interesting questions. There's a equal protection question, there is a takings clause question, and there is the bill of attainder question, a rarely litigated but important constitutional provision.

We'll talk about each in turn. We're going to start by discussing the majority opinion because that is the controlling legal opinion. And then we'll touch on Judge Srinivasan's opinion as well. So, Jane, you wanna tell us a little bit about the big picture here?

>> Jane Bambauer: Yeah, okay, so the big picture is, I mean, first of all, we'll kind of just skate by some of the throat clearing that the court itself had to do.

That this bill, we going to assume that it will require the sale. And so the First Amendment related question then was whether, given that the statute itself is neutral as to the content of the speech that you find on TikTok. Whether it nevertheless is an impediment on free speech anyways.

So the Department of Justice was arguing that the court really shouldn't apply First Amendment scrutiny at all. It should just apply rational basis because this was a regulation of basically ownership of a firm. But if they must apply First Amendment scrutiny, it should be intermediate scrutiny. Because on its face at least, there's no indication that the rule depends on the content or the viewpoint of the speech that TikTok is hosting or pushing.

And then they argued, in any case, even if you apply strict scrutiny, the government should win for national security reasons. And the DC court said, naturally, the TikTok itself was saying sort of the converse, that at the very least, intermediate scrutiny should apply. But really, actually it's appropriate to apply strict scrutiny, given that the entire theory of what the threat is here has to do with what type of speech a particular state act or China would want to be pushing.

And so it is related to viewpoint or content in that sense. The court said that, first of all, this really is a restriction on speech. And the majority opinion was that it didn't have to decide the level of scrutiny because in the end, it thought both sides had pretty good arguments.

I'm curious with what you think, Eugene, about the level of scrutiny. But in any case, even under strict scrutiny, which is what it ended up using to analyze the facts here. It thought the government has a compelling interest in securing the country and defending it against attempts at manipulation.

And data gathering for the purpose of manipulation later, and that this was narrowly tailored to address that national security concern. And so this is one of those strict in theory, strict in fact, examples, that where the regulation actually survives the highest form of First Amendment scrutiny. Now, I have opinions, I think last time we talked about this case, I don't think it surprised either of us that it turned out this way.

But I think this sets a sort of a bad precedent, actually, about what strict scrutiny should be and how much evidence and fear of persuasion should be allowed under its auspices. But there we go. So, Eugene, what do you think?

>> Eugene Volokh: Well, I'm not sure what to think about the majority opinion.

I think I'm probably a little bit friendlier towards it than you are, but I did wanna step back a little bit and build on the description of the analysis that you gave. So when we talk about intermediate scrutiny and strict scrutiny, these are legal buzzwords. But what they really require courts to do is to ask what are the interests the government is serving with a speech restriction?

And how well are those interests sufficiently strong, and how well linked is the restriction to those interests? And at least in theory, even restrictions on core political speech might be upheld if they are narrowly tailored to compelling government interests, that's strict scrutiny. Although in practice, courts have been quite reluctant to uphold them, at least when we're talking about the core issue of Americans talking, say, about American elections or American political disputes.

But it's all about what the government interests are, that's the first question. And the court says there are two main interests that support this law. One of them has to do with data gathering. That there is evidence that the Chinese government tries to use many different kinds of means to gather data about Americans in ways that can advance their espionage interests.

Maybe help them blackmail people and so on and so forth. And because the Chinese government has considerable control over TikTok, however indirect the corporate structure is, it is able to control it in part. Because a lot of the important content moderation and other such decisions happen in China. Chinese government has power over that. There is real reason to worry that the Chinese government may essentially harvest private information about people from From TikTok. That's one rationale. Now, that is a content neutral rationale. Nothing here said, it might harvest information and use it for particular ideological purposes or some such.

It's for reasons quite unrelated to content. And there the majority says, well, that might, that's a content neutral reason. That's the kind of thing that might call for intermediate scrutiny. But there's also a second rationale that Congress pointed to, which is the concern that the Chinese government could essentially use TikTok as a means of trying to influence American political debates.

And that therefore the government has an interest in preventing covert content manipulation by an adversary nation. And now there the majority says that does sound like it's concerned about content, that they're not worried about content manipulation more cat videos, fewer dog videos, right? They're concerned about particular kind of content that might be in the interests of the Chinese government.

So that's why the majority says that's reason enough to at least consider possibly applying the strict scrutiny. But the majority says the law passes even strict scrutiny. As to data privacy, there's real reason to be concerned about this. We don't know for sure how much the Chinese government may be using this information.

But especially in an area of national security, we're gonna defer to what appears to be the considered judgment of Congress and the President, who have much more authority over national security issues than the courts do. And when it comes to content manipulation, there too, the law is sufficiently well tailored to that concern.

And there's a particular passage in the majority that I think is critical. It's a critical part of their argument, and I think it's worth quoting at some length. It's just a paragraph, so worth quoting the entire paragraph. So this is Judge Ginsburg writing. In this case, a foreign government threatens to distort free speech on an important medium of communication.

Using its hybrid commercial strategy, the PRC, the Chinese government has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC's ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes the domestic government, federal or state government in the US from exercising comparable control over a social media company in the United States.

And it cites NetChoice v Moody, the recent decision which struck down state laws that tried to constrain editorial discretion on the part of social media platforms. Here, the Congress, as the Executive proposed, acted to end the PRC's ability to control TikTok understood in that way, the act actually vindicates the values that undergird the First Amendment.

So the argument here is that the First Amendment is about restricting government, but not just the US Government, that it's at least legitimate, maybe not necessary, but legitimate, for the US Government to try to restrict foreign governments ability to constrain American speech. So that when the government says essentially, we wanna keep not foreign companies but foreign governments out of the area where they can substantially constrain what is said by Americans on platforms.

That's something that the First Amendment should not frown on maybe it should even applaud. So that is I think the heart of the panel majority's argument with regard to this interest in keeping the Chinese government out of moderation and control over American speech.

>> Jane Bambauer: So I mean, so the same concept could apply to the Digital Services Act of the European Union then?

Is that?

>> Eugene Volokh: Well, yes, so this is actually an interesting question. It is of course not con raised in this case directly. And I think politically I think there's going to be a lot fewer fights probably in between America and Europe.

>> Jane Bambauer: Understood, I do agree there's a difference between allies?

Yes.

>> Eugene Volokh: Right, it's kind of like-

>> Jane Bambauer: I completely agree.

>> Eugene Volokh: Siblings bickering, right? We can sound like we really hate them, but unbalance, we're on the same side.

>> Jane Bambauer: I agree with that.

>> Eugene Volokh: So let's say for example, that the US Government were concerned that the European regulatory system is now restricting speech by Americans to Americans on various platforms.

Let's say the Europeans do start sharply restricting what can be said on Facebook or on X or wherever else by Americans to Americans in order to enforce European rules about supposed hate speech or supposed misinformation or blasphemy or whatever else. And therefore, we're going to restrict the platform's ability to go along with those European restrictions.

Or perhaps we might insist that American platforms not have any assets in Europe.

>> Jane Bambauer: Right, yeah.

>> Eugene Volokh: That would expose them to such constraint.

>> Jane Bambauer: Right.

>> Eugene Volokh: Again, politically it's very unlikely.

>> Jane Bambauer: I agree politically it's very different. Although I could have.

>> Eugene Volokh: I do think that could be up rationale.

>> Jane Bambauer: Okay.

>> Eugene Volokh: That's why it's an important rationale. So that's I think the heart of the free speech argument. And one can of course disagree with that. One can say, let me just step back and identify one other entity we haven't talked at all about, but which actually Judge Srinivasan's concurrence does talk about it.

And that is what about American users of TikTok, right? You could talk about the rights of the TikTok parent company. Judge Srinivasan's concurrence says, well, it's a foreign company making editorial decisions in a foreign country that's actually not subject to the First Amendment. You can talk about the rights of the Tic Tac subsidiary, which is a US Corporation, but you could say, well, they could if they are divested, and of course they may not be divested, but if they are divested, they could make the same editorial decisions.

But one really important actor here is the set of all of these American users of TikTok. Both people who create things that are posted on TikTok and people who simply consume things that are posted on TikTok. They face the prospect of possibly losing access to their TikTok audience if indeed TikTok is not spun off by, I think January 19th is the deadline, so it's coming right up.

And that is a serious restriction on their free speech rights. It's not a direct restriction. It's not the government saying, well, you're not allowed to say certain things. They still will be free to say it on other platforms, but they may not be platforms that have the same audience that they want or the same feature set that they want.

So I think there is a real restriction on their free speech interests of those groups, but at least Judge Srinivasan says in concurrence, and I think the majority agrees on that. That restriction is justified by these interests in preventing the Chinese government, this foreign adversary, from being able to harvest all of this information about American users and preventing it from being able to try to constrain, in a secret, clandestine way, constrain communications by Americans to Americans.

>> Jane Bambauer: Yeah, okay, so can I give you my take on why I still-

>> Eugene Volokh: You can and you should.

>> Jane Bambauer: Lament this, so, by the way, I don't feel strongly, in fact, I feel extremely. I have high humility, I guess, about what the right outcome in this type of case would be.

>> Eugene Volokh: Right, and just one other thing I should just stress to people. We're recording this a few hours after the opinion was handed down. So in addition to this being a complicated case, maybe we should sleep on it, right, but we wanna-

>> Jane Bambauer: Let's shoot from the hip.

>> Eugene Volokh: Right, right, but we bought into the gospel of timeliness and news hooks. It's certainly possible that on mature reflection, a lot of people will change their views on this. But we're trying our best.

>> Jane Bambauer: Right, but-

>> Eugene Volokh: Cut us some slack here.

>> Jane Bambauer: Yeah, so I have been worried since even before understanding what the reasoning of this opinion was going to be.

I've been worried about giving too much credence to this idea of covert manipulation being something that American audiences just kind of take in, soak in and it kind of relies on something close to the injection theory of beliefs. You can just kind of the idea that a company can will people into holding certain beliefs or taking certain actions.

It's true to an extent, actually. In fact, I think the data on people organizing better and taking actions is better than the theory that people change what they think because of the way that the social media algorithms work. However, so, but this case, by saying that there is a significant national security interests such that whether it's a foreign government or not, that it's a tool, a weapon that is highly destructive of democracy.

I am not convinced that we can keep those boundaries at the foreign state level cuz that same logic could apply, couldn't it, to a national security interest that is independent of who actually owns or is exploiting the functionality of the platform. So in other words, I guess I don't buy the majority opinions distinction between foreign state manipulation being the source of threat versus any other malicious actor potentially being, or at least perceived malicious actor being seen as wielding a very powerful weapon that can turn our democracy into disarray.

And so, I mean, and just as, by the way, courts are recognized, at least in the Fourth Amendment context. Maybe it's true in First Amendment as well. But in the Fourth Amendment context, courts have recognized a national security interest even vis a vis US Citizens in the United States, right?

So there is such a thing as a domestic national security threat. And so obviously, this case is trying to stay as far as possible from that by distinguishing net choice. But the logic of it, I don't think can be distinguished that cleanly.

>> Eugene Volokh: Right, so I totally agree with you that there is real reason to worry about giving the government too much power to restrict speech in the interests of national security.

In principle, you could imagine in a situation where the same arguments could be deployed against Americans, say, condemning some war that the US is involved in. And the government says, this is bad for morale, it's bad for our troops, it emboldens the enemy, it leads the enemy to wanna fight until the next election because maybe the pro pacifist side will win here.

We have to suppress that. And I agree that that is not something the US government should be able to do. I think the majority at least thinks that they wrote an opinion that is quite far removed from authorizing that. That they do stress, first of all, it's foreign government power and not even just foreign corporate or foreign citizen power.

They also stress that this is something that basically limits the ability of foreign governments to subtly control this sort of behavior and doesn't outright forbid anybody from expressing any views. The Chinese government could, in some divested TikTok, could put up a channel with PRC propaganda on the new American TikTok and they would.

Nothing in the law would prohibit that. So Judge Srinivasan has the separate concurrence and I wanted to turn to it a little bit more. So he says that this law should be evaluated just under intermediate scrutiny because it is partly because it's content neutral, but also partly because of history and tradition.

Now Chief Judge Srinivasan is a noted liberal judge. He was, I believe, appointed by President Obama. And history and tradition is often associated with the conservative justices and conservative judges. And I think Judges Ginsburg and Rao are thought of as somewhat more conservative. But in fact, judges care a lot about history and tradition on both sides of the aisle.

Maybe sometimes they care about it. Some care about it more in some cases, others care more about it in other cases.

>> Jane Bambauer: What, judges being instrumental? No.

>> Eugene Volokh: Judges being human, right?

>> Jane Bambauer: Yes, okay, fair.

>> Eugene Volokh: But in general, even in free speech cases, I do think that judges have cared a lot about what history is like.

And Judge Srinivasan says, look, ever since immediate mass communication technology, essentially electronic communication technology, emerged basically with creation of radio, the invention of radio. Ever since then, there's been a long standing tradition to try to constrain foreign ownership of American channels of communication. Now, he's not talking about newspapers here.

I think the tradition may. I don't know what the tradition is there, but he's not stressing it, and I think it may be quite different. But when it comes to radio, to television, to various other kinds of electronic communication, there is a very long standing tradition, not of censorship. There actually is something of a tradition of government censorship. But he's not appealing to that, he's not endorsing it. But there is a tradition of restraints on foreign ownership that maybe as a purely logical matter you might say, well, a speech restriction is a speech restriction. The question is whether it interferes with American speech and it doesn't matter if it does it by restraining foreign ownership with some other means.

But I think his view is it does matter. And that when there is a more than century old tradition, tradition that emerged basically as soon as these technologies were invented, of limiting foreign ownership, that's something that we ought to be considering. So for that reason, he says he would apply only intermediate scrutiny as opposed to the majority says.

Which says we don't need to decide the level of scrutiny question because it would be upheld even under strict scrutiny. Now, maybe one of the things that Judge Srinivasan is pointing to here is that he wants to save strict scrutiny for situations that are different and have it be really very, very forceful.

Maybe, I'm not sure. But so he doesn't say this in the opinion, but maybe if he were here and were willing to talk on the record, he'd say, well, the reason that I wanted to uphold this under intermediate scrutiny is I wanted to reserve judgment-

>> Jane Bambauer: Preserve strict-

>> Eugene Volokh: On whether a law could be upheld even in national security interests under strict scrutiny.

>> Jane Bambauer: Under strict scrutiny.

>> Eugene Volokh: There, if it really is a restriction on what Americans could say, that's when we should apply strict scrutiny and strike the law down. But for these historical reasons, we should apply intermediate scrutiny.

He gives some other arguments. One of the things he says is, it's not really that content-based, even this interest in constraining the Chinese government's ability to sort of subtly spin debate. Because says, look, sometimes the Chinese government may wanna block anti-Chinese speech, but sometimes it may want to promote anti-Chinese speech.

You might say, why? Well, let's say it's trying to come up with a justification for its own some foreign policy or military actions and saying, all these Americans hate us. We have to do something. May wanna try to gin up more anti-Chinese speech. I didn't find that super persuasive, I imagine this could happen.

But I do think that when you're trying to constrain Chinese government's influence, that really is about trying to go after particular kinds of content. But he might be saying essentially that the important thing is this history of restrictions on foreign ownership of electronic communications media in the US.

And that's something that we should deal with under a very different standard than the kinds of things that you, Jane, are pointing out, which is restrictions on American speech.

>> Jane Bambauer: Yeah, well, okay, maybe. But I guess another, I'm nervous about slotting it within the broadcast tradition. Because I mean, I thought we have a pretty well established new tradition of also post-Reno versus ACLU.

>> Eugene Volokh: Right.

>> Jane Bambauer: Of understanding that the Internet is different. There are many fewer natural limitations, many more flowers can bloom. And in fact, I'd say that TikTok only got this attention because it is popular, and if it were some struggling little platform, I don't think we'd be here.

I mean, again, I can't help but I guess go back to my skepticism about the threat that if everyone started seeing nothing but pro or anti-Chinese propaganda they would not stay on TikTok. But in any case, the point is that they wouldn't stay there because they have other platforms and they have the entire Internet.

And I thought the First Amendment tradition in those fora was markedly different and meant to stay that way.

>> Eugene Volokh: So sometimes we say there is a tradition, and we say therefore things should be clear. Well, all right, but there are also counter traditions. As you point out, there's a tradition of regulation of electronic media.

The old electronic media were once new electronic media when everything electronic was new. But now are the old ones, radio, television, and such. There's a tradition of great freedom as to the Internet, but there's also this cross cutting tradition having to do with restrictions on foreign ownership. The question is which one do you focus on?

So, I'm not sure that there's a clear answer to that. Let's turn briefly to the other arguments that were made. I think we can deal with them fairly quickly but they're worth noting. So one argument was an equal protection clause argument. You're sort of singling us out as TikTok and the court says well no, there's really good enough reason to single you out.

And to the extent that the free speech clause requires equal treatment of speakers, well we've already taken care of that in upholding this law. And to the extent you're use the equal protection clause to add to that, well that's not persuasive to us. A second argument is that TikTok said this is a taking of private property.

Now the Constitution doesn't forbid taking of private property. It requires just compensation. And for the government to compensate the owners of TikTok for the value of TikTok could be a hefty, hefty bill. But the Supreme Court says this is not a taking that requires compensation. No property is being physically taken by the government.

It's not the government says we're seizing this, you're being required to sell it off to someone. But usually selling something is a form of getting you compensation, you're selling it for money. And to the extent that the claim is, this is a regulatory taking because this for sale diminishes the value of the property.

Well, really to be a regulatory taking the value has to be almost eliminated and we have no particular reason to think that that is going to be so. Then there is also the bill of attainder and I just think it's a great opportunity to talk about a clause.

The Framers cared about it so much, they mentioned bills of attainder twice. They prohibited the federal government from enacting bills of attainder and state governments from enacting bills of attainder. And remember, the original Constitution only really protected rights against the federal government, excuse me, the original Bill of Rights only applied to the federal government.

 

And there were very few provisions in the main body of the Constitution that applied to state governments too. Bill of Attainder clause is one of them. So bills of attainder were basically historically when a legislature said, we think you're a bad person, you're a danger to the state, we're gonna have you executed for your crimes against England.

Parliament used to do that, and the Framers didn't want that to happen. So the Bill of Attainder clause prohibits punishment that is implemented by the legislature aimed at a particular person or possibly entity. And the Supreme Court has at times struck down government action on bill of attainder grounds.

But the DC Circuit says this isn't one of those times, chiefly because, and I oversimplify here, but chiefly because this isn't punishment, this is a regulation. It may be a regulation that is quite burdensome on TikTok, but it is not punishment. It doesn't fit within the historical meaning of legislative punishment.

It does further non-punitive purposes, sort of remedial purposes, or perhaps remedial may be the wrong term. But just practical purposes, functional purposes of limiting the PRC's ability to threaten US national security. And there's not sufficient reason to think that Congress was just trying to punish TikTok as opposed to prevent these supposed future harms.

So, put all of that together and TikTok's out of luck. So then the question is, what comes next? Jane, what do you think comes next?

>> Jane Bambauer: I don't know.

>> Eugene Volokh: I don't know either. I don't know either. I can guess that they're going to ask for Supreme Court review.

But, of course, you guess that too.

>> Jane Bambauer: Time is of the essence.

>> Eugene Volokh: What we don't know is what the Supreme Court will say.

>> Jane Bambauer: Well, I mean, but also there's not a stay on the date, right, so.

>> Eugene Volokh: Right, the date is January 19.

>> Jane Bambauer: Yeah, so-

>> Eugene Volokh: So if they ask for Supreme Court review, they're getting ask very quickly. That, by the way, is a reason that I think they probably won't ask the DC Circuit to review it in bank.

>> Jane Bambauer: In bank, yeah.

>> Eugene Volokh: By all of the judges on the DC circuit because the clock is ticking tick tock.

>> Jane Bambauer: Yeah.

>> Eugene Volokh: So it's hard enough to get the Supreme Court to resolve to even to agree to hear the case very quickly. But it's possible. But if they first ask the DC circuit and then the Supreme Court, I don't think they're going to get anywhere. But while I don't know what the Supreme Court will do, the fact that you've got three judges voting for slightly different reasons, Chief Judge Srinivasan, but still voting in the same direction, makes it, I think, a lot less likely that the Supreme Court is going to agree to hear the case.

>> Jane Bambauer: I agree.

>> Eugene Volokh: And again, Judge Ginsburg was appointed by President Reagan, Judge Rao was appointed by President Trump. Chief Judge Srinivasan is appointed by President Obama. They are, I think, all of them viewed as highly respected. And it just, if you're thinking who in the Supreme Court would say I disagree with all three of them?

>> Jane Bambauer: Yeah.

>> Eugene Volokh: There could be some, it's certainly possible, but it just makes it a lot less likely than if it would have been a two to one split, especially two to one split.

>> Jane Bambauer: Yeah.

>> Eugene Volokh: Like imagine two Democratic appointees vote to uphold the law, one Republican votes to strike it down.

And then you might imagine maybe there are conservative justices who are of course, the majority on the court now who would go along with the dissenting judge. But that's not at all what happened here. Now it's possible the Supreme Court would agree to hear the case just because it's a matter of such great importance.

Both as a practical matter, this is a very important company. But also-

>> Jane Bambauer: And a novel theory.

>> Eugene Volokh: Right, also because it is a very important legal conceptual question. And maybe because this is the kind of issue that should be resolved because of its international implications by the highest court in the country and not just by a less high court, although very well respected.

I just don't think it's terribly likely.

>> Jane Bambauer: So I thought you were asking a different question though, and maybe this is what you're getting at.

>> Eugene Volokh: I think I was.

>> Jane Bambauer: So I wanna know.

>> Eugene Volokh: I was asking both.

>> Jane Bambauer: So-

>> Eugene Volokh: But tell me what you thought.

>> Jane Bambauer: So assuming that the court doesn't take it or in any case that the deadline comes, does TikTok, sell or fold up shop or do something else?

>> Eugene Volokh: Exactly, and there too, I think I don't know.

>> Jane Bambauer: I don't know.

>> Eugene Volokh: Is the right answer. Maybe somebody knows.

Somebody in the Chinese government might know. But, yeah, it's hard to know for sure. So the legal analysis one can agree or disagree with, again, I think it's at least defensible. And one other thing just to remind people of is both the majority opinion and Chief Judge Srinivasan's concurrence.

Just stress this is a national security matter. And in national security matters there is a good deal of deference, in part because the executive and legislative branches may know things that the judges don't and certainly they know things that I don't. So the judges were persuaded to defer to this national security judgment.

Maybe it was wrong for them to be persuaded there or maybe just the wrong national security judgment. But I am inclined to be somewhat more differential here. But one can agree or disagree.

>> Jane Bambauer: Whereas I think that they know things that they don't.

>> Eugene Volokh: Right.

>> Jane Bambauer: That's my fear.

>> Eugene Volokh: Maybe they think they know things.

>> Jane Bambauer: They think, exactly.

>> Eugene Volokh: But they don't actually know them.

>> Jane Bambauer: Yes.

>> Eugene Volokh: So speaking of knowing, there is one more thing that I know today as a result of a post on the CyberPROF discussion list. And it was, I believe by Professor Matt Lawrence at Emory Law School.

And that is about Judge Douglas Ginsburg own foray into social technology. In the middle 1960s, he was one of the co creators of the first US computer dating service.

>> Jane Bambauer: Wow.

>> Eugene Volokh: I did not know that. It's a long way from there to match.com, much less Grindr and whatever else.

But it turns out he has this technological background from back before we were even born, so.

>> Jane Bambauer: Amazing.

>> Eugene Volokh: Little known fact.

>> Jane Bambauer: Yeah, very cool.

>> Eugene Volokh: All right, well Jane, great pleasure as always.

>> Jane Bambauer: Yep, looking forward to the next one.

>> Eugene Volokh: Looking forward to the next one.

>> Jane Bambauer: Bye everyone.

>> Presenter: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work or to listen to more of our podcasts or watch our videos, please visit hoover.org.