Montana’s TikTok Ban is Unconstitutional
SB0419, was just signed into law in the State of Montana by Governor which bill essentially bans the operation of the social media app TikTok within the state’s jurisdiction.
The legislation in question engenders profound constitutional quandaries. The prohibition, impacting nearly 110 million American users, infringes upon fundamental First Amendment rights, potentially establishing a disconcerting precedent for freedom of speech in the digital domain. While the concerns pertaining to privacy and national security raised by TikTok and similar social media platforms are valid, a comprehensive ban is an injudicious, sweeping measure that unduly restricts the ability for free expression.
The First Amendment unequivocally guarantees the right to receive information free from governmental interference. A state-imposed ban on TikTok would jeopardize this fundamental right. The Supreme Court has recognized the digital realm’s significance as a forum for free expression, and citizens possess a constitutional right to communicate on the internet platform of their predilection.
In Packingham v. North Carolina (2017) the Supreme Court recognized the internet, and social media in particular, as a significant platform for a wide array of protected First Amendment activity. Justice Kennedy, writing for the majority, held that “Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights.”
Social media is the modern public square, a digital space where citizens gather to exchange ideas, express opinions, and engage in discourse. As such, individuals deserve the right to access and participate in this public square free from undue government interference. The ruling in Packingham reaffirmed the principle that the government, while it may have legitimate interests in regulation, must not infringe upon the fundamental rights of citizens access ideas, communicate, and express themselves freely on the platforms of their choosing.
The Montana Law outlines several provisions:
- It prohibits the operation of TikTok within Montana’s jurisdiction. This includes the operation of TikTok by the company or its users, and the option to download the TikTok app from any mobile application store within Montana.
- Entities (defined as either TikTok or a mobile application store such as the AppStore or Play Store) that violate this prohibition are liable for a fine of $10,000 for each discrete violation (defined as each time a user accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok). The fine increases by $10,000 each day the violation continues.
- Penalties do not apply to law enforcement activities, national security interests and activities, security research activities, or essential government uses permitted by the governor on the state’s information technology system.
- The penalties also do not apply to users of TikTok.
- The Montana Department of Justice is responsible for enforcing this law.
- The bill becomes void if TikTok is acquired by or sold to a company that is not incorporated in a country considered a foreign adversary, according to 15 C.F.R. 7.4 (Determination of foreign adversaries.), at the time TikTok is sold or acquired.
- The law is severable, meaning if a part of it is found to be invalid, illegal, or unenforceable, the remaining valid parts will still be in effect.
- The bill is set to take effect on January 1, 2024.
TikTok makes the following claims in their lawsuit:
- The TikTok Ban violates the First Amendment: TikTok argues that the ban suppresses free speech across the State of Montana.
- The TikTok Ban is an unconstitutional bill of attainder: TikTok claims that the ban punishes TikTok specifically for purely punitive reasons, based on speculative concerns about TikTok’s data security and content moderation practices.
- The TikTok Ban violates the Commerce Clause: TikTok argues that the ban disrupts the flow of travel and commerce between states.
- The TikTok Ban violates the Due Process Clause: TikTok claims that the ban is unconstitutionally vague and fails to provide a person of ordinary intelligence fair notice of what is prohibited.
TikTok seeks a declaratory judgment and order invalidating and preliminarily and permanently enjoining the Montana from enforcing the TikTok Ban.
Rather than resorting to an outright prohibition, Montana could consider more constitutionally sound alternatives that would address the concerns associated with TikTok without infringing upon individual liberties. Expedited investigations into the security risks posed by TikTok, coupled with comprehensive consumer privacy legislation, could serve as viable solutions. These approaches, which duly respect the First Amendment rights of citizens, provide a more nuanced and balanced methodology to address the serious apprehensions raised by the use of TikTok.