Montana’s TikTok Ban Tees Up First Amendment Legal Battle

Montana has become the first state to institute an outright ban on TikTok, barring it from operating in the region and prohibiting app stores from providing downloads there. The move is opposed not only by the Chinese-owned TikTok, but by free speech advocacy groups including the American Civil Liberties Union. The ban is set to go into effect January 1, 2024, though legal challenges could delay that implementation. Observers say the inevitable lawsuits fighting the legislation could prove instructive as relates to proposed federal TikTok bans in development in Washington.

“TikTok and app stores would be liable for fines of $10,000 a day” for violating the law, Senate Bill 419, reports The Wall Street Journal, adding that “individual TikTok users wouldn’t be punished.”

Governor Greg Gianforte on Wednesday signed the bill into law in order to “protect Montanans’ personal, private, and sensitive data and information from intelligence gathering by the Chinese Communist Party,” according to a statement that quotes Gianforte saying “the Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented.”

The bill, which advanced to Gianforte’s desk in April, notes that TikTok “fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities, including but not limited to throwing objects at moving automobiles” and “cooking chicken in NyQuil,” and says the viral app “may allow the People’s Republic of China to track the real-time locations of public officials, journalists, and other individuals adverse to the Chinese Communist Party’s interests.”

A TikTok spokeswoman said the new law “infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok,” WSJ reports, noting that “an earlier statement from the company, which is owned by Beijing-based ByteDance, said, “the bill’s constitutionality will be decided by the courts.”

The ACLU issued a statement saying the legislation “flouts the First Amendment,” adding the law does not meet “the high bar set by the U.S. and Montana Constitutions” for imposing a total ban on a communications platform.

WSJ writes that questions remain as to how the ban will be enforced, “whether Montanans could use a workaround, such as a virtual private network, to make their devices look like they are outside the state” and what will happen to state residents “who downloaded the app before the ban’s January 1 start date.” State Senator Shelley Vance, the legislation’s Republican sponsor, “said the onus of complying with the legislation would be on TikTok itself,” according to WSJ.

Montana’s action “follows efforts in Congress, including a bipartisan bill in the Senate targeting TikTok and other apps from foreign adversaries,” writes Politico, adding that “momentum has stalled in recent weeks after libertarian members like Rand Paul (R-Kentucky) and progressive Democrats like Representative Alexandria Ocasio-Cortez (D-New York) came out against a ban.”

TikTok Users Sue Montana, Calling State Ban Unconstitutional, The New York Times, 5/18/23
TikTok’s U.S. Code Review Project by Oracle Stalls, Bloomberg, 5/18/23

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