The legal case for Montana’s TikTok ban

Montana made history with its move to ban TikTok. Given that the state has a serious penchant for deregulation, it’s kind of a shocker. To put this in perspective, Montana was the last state to institute a speed limit, and yet it is now the first state to ban the controversial app.

And for good reason. We know that ByteDance, TikTok’s Beijing-based parent company, can use and has used the data it accesses from TikTok. For instance, the Department of Justice is investigating ByteDance’s use of TikTok data to spy on American journalists. 

Montana’s law goes into effect on January 1, 2024. The law imposes a $10,000 fine on TikTok, Google and Apple for each day they make TikTok available to Montanans. (Full disclosure: I testified in favor of Montana’s bill at its House Judiciary Committee last month.)

But before the ink could even dry, TikTok and a few Montana TikTok creators sued the state, arguing that the law is unconstitutional. Both briefs assert that Montana’s ban violates the First Amendment. TikTok’s brief goes further in arguing that it violates the Constitution’s prohibition against bills of attainder and, due to TikTok’s national reach, the Commerce Clause by attempting to regulate an interstate service. But the law is very likely to pass constitutional muster.

Regarding the First Amendment, courts have consistently distinguished between conduct and speech to determine whether the First Amendment is applicable or prohibitive towards the enactment or enforcement of a particular policy. The Supreme Court held as much in Arcara v. Cloud Books, Inc. In that case, the New York state government shut down an adult bookstore for health violations because its owner used his store to facilitate prostitution. Even though we think of a bookstore as a quintessential venue for First Amendment activity, the Supreme Court ruled that the First Amendment did not prevent the government from shutting it down because the government was acting based on the owner’s decision to engage in prohibited, non-speech conduct, in this case the solicitation of prostitution.

Montana’s law wisely targets the conduct of app stores and the app itself as opposed to the content occurring on the app. Indeed, the law makes clear that TikTok can operate in the state if it cuts ties with ByteDance. Given that ByteDance has shown that it uses TikTok to spy on Americans, and the ban is not attempting to ban certain users or speech on other platforms (e.g., Instagram, Snapchat, etc.), the law will most likely pass constitutional muster under the First Amendment or avoid the issue entirely. 

What’s more, Montana’s law is far from a bill of attainder. A bill of attainder is a law that punishes individuals for past offenses without a trial, which the Constitution forbids. The Constitution’s prohibition, however, doesn’t apply to laws that regulate future offenses, only past offenses. For example, the U.S. banned the future sales of Chinese telecom giant Huawei due to its ties to the Chinese government. Huawei even sued in federal court on the same theory as TikTok. The District Court disagreed with Huawei. Why? Well, the court held that Congress’s actions against Huawei were constitutional because it was not denying Huawei a trial for past offenses. Instead, it applied only to transactions that have not yet occurred and thus falls outside the scope of the type of punishment the Constitution seeks to protect against.

So, although it is true that Montana’s law singles out TikTok, its punishment only applies to future transactions. This is made evident by the fact that the law has no immediate effect on the current version of TikTok. The law only affects the app’s functionality if and when TikTok or the app stores update their software. In that case, TikTok will just simply die on the vine and become a skeleton app. In short, TikTok may have a credible case that the law singles it out, but it will likely fail to prove that the legislation amounts to a bill of attainder given that punishment is prospective, not retrospective. 

Lastly, the Commerce Clause does not prevent, nor federal law preempt, states from enacting laws rooted in protecting its consumers and using their police powers. Montana’s law is very careful to only address those things within the purview of consumer protection and police powers, such as the health and safety of children, their citizens, and violations of Montana’s codified constitutional right to privacy —all of which are well within Montana’s jurisdiction. If we accept TikTok’s theory, then the Commerce Clause would also prohibit states from passing privacy laws or prohibiting online gambling, which is frankly a ridiculous assertion.  

Montana’s trailblazing efforts are likely the first of many we’ll see in relation to TikTok. Banning the app is not only constitutional, but an absolute necessity if we want to prohibit the Chinese government from spying on us.

Joel Thayer is president of the Digital Progress Institute and a Washington-based telecom and tech attorney.