To recap: due to unsubstantiated fear-mongering about TikTok, the lack of a real federal privacy law, and a weird obsession with China, Montana passed a blatantly unconstitutional law banning TikTok in the state. Last week, governor Greg Gianforte signed the bill into law and we predicted his doing so would cost Montana taxpayers a ton of money for the lawsuits they would soon have to deal with. The same day that the law was signed, a group of TikTok users sued the state.
And, now, this week, TikTok itself has also sued. The complaint is pretty clear and an easy read. It lays out the basics:
The State has enacted these extraordinary and unprecedented measures based on nothing more than unfounded speculation. Specifically, the State claims that the government of the People’s Republic of China (“China”) could access data about TikTok users, and that TikTok exposes minors to harmful online content. Yet the State cites nothing to support these allegations, and the State’s bare speculation ignores the reality that Plaintiff has not shared, and would not share, U.S. user data with the Chinese government, and has taken substantial measures to protect the privacy and security of TikTok users, including by storing all U.S. user data by default in the United States and by erecting safeguards to protect U.S. user data. TikTok has also implemented safeguards to foster a safe environment for all users, including teens.
Ignoring these facts and the federal statutory framework already in place to address any purported concerns about foreign government access to TikTok user data, the State has mandated a complete and total ban of TikTok in Montana. It has done so despite the availability of more targeted measures to address its purported concerns. In less than eight months, no resident of, visitor to, or worker passing through Montana will be able to download TikTok on his or her phone or mobile device, post any videos to TikTok for others to see, or view any content on the platform.
Acknowledging “legal concerns” about the TikTok Ban, the Montana Governor suggested changes to the legislation after it had already been passed by the Montana Legislature. Those changes would have shifted the Ban’s focus from TikTok specifically (and the content on the TikTok platform) to social media applications connected to foreign entities more generally. But the Legislature did not consider the Governor’s suggested changes—which were legally problematic in their own right—and yet the Governor signed the TikTok Ban into law anyway. This unprecedented and extreme step of banning a major platform for First Amendment speech, based on unfounded speculation about potential foreign government access to user data and the content of the speech, is flatly inconsistent with the Constitution
It then lays out all the many ways in which the law is bullshit, which reads like a much better written, and more detailed, version of the list I put together when the bill was first passed.
The TikTok Ban is unlawful and should be enjoined for multiple, independent reasons. Specifically:
a. First Amendment. The TikTok Ban violates Plaintiff’s First Amendment rights. Through TikTok, Plaintiff exercises its constitutionally protected editorial judgment on whether, and how, to host, disseminate, and promote third-party speech created by others, and also shares its own content with users in Montana about a variety of issues and current events. The TikTok Ban, however, effects a prior restraint on the speech of Plaintiff and other TikTok users, unconstitutionally shutting down the forum for speech for all speakers on the app and singling these speakers out for disfavored treatment with the content-based rationale that videos on TikTok are harmful to minors.
b. Federal Preemption. The TikTok Ban is preempted by federal law because it intrudes upon matters of exclusive federal concern. The TikTok Ban is based on the State’s purported concern about the security of U.S. user data vis-à-vis the Chinese government. But foreign affairs and national security are matters over which the U.S. Constitution vests exclusive authority in the federal government, not the States. Indeed, Congress has created a specific federal regulatory process by which the purported national security concerns that have animated this legislation may be addressed. The TikTok Ban would necessarily disrupt and interfere with that process, which is currently underway.
c. Commerce Clause. The TikTok Ban violates the Commerce Clause of the U.S. Constitution, which limits the authority of States to enact legislation that unduly burdens interstate and foreign commerce. By banning Plaintiff from operating TikTok within Montana, the TikTok Ban imposes a state-specific ban on a communication platform that is national (indeed, international) in scope. The Ban interferes with TikTok’s operation and availability to users in other States and it risks disrupting the flow of travel and commerce between States.
d. Bill of Attainder. The TikTok Ban is an unconstitutional bill of attainder. Rather than regulate social media companies more generally, the Ban banishes TikTok, and just TikTok, from the State for purely punitive reasons, as evidenced by the State’s decision to single out Plaintiff for harsh penalties based on speculative concerns about TikTok’s data security and content moderation practices.
I’m also wondering if more lawsuits are coming, including from Google and Apple, given that the law is also written to hit them with fines if their mobile app stores make TikTok available in the state (after the law goes into effect in 2024).
Either way, this law is bad, and clearly unconstitutional, but Gianforte and the Montana legislature don’t care about rights. They care about culture wars and moral panics. And this is what they get.
