Montana Won’t Be Able To Hit The Finisher On TikTok Without Addressing The Constitution

// There’s big money in TikTok — it is set to make a whopping $13.2B this year in revenue. It is far more than just the dance app for kids. As the first place that many of our younger citizens go for information, it is competing with mega giants like Google. And, for fear that its use would let competing companies scoop information on us, Montana is at the forefront of the fight to remove it from its state in toto.

The battle over TikTok access in Montana is underway, with the company suing the state over the ban of its video-sharing app on constitutional grounds that will be difficult for the state to overcome.

Montana’s targeted law, signed last week, bars app store platforms from providing TikTok for download to state residents. Individual access of the app is also a violation for which TikTok will be fined $10,000 every day its app operates on devices in Montana after the law takes effect on Jan. 1, 2024. TikTok content creators have also filed suit against the state.

Attorneys and academics expect Montana’s ban is unlikely to survive the court challenges, which broadly accuse the state of unfairly singling out TikTok and violating free-speech protections.

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It isn’t just Montana either. With the talking heads describing TikTok as a CCP psyop that will turn all the frogs gay or something, the outcome of this case will likely determine how other states respond:

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Ban @tiktok_us. The CCP is using this app to gather intelligence on Americans and wage a psyop on this country. pic.twitter.com/4GmcGbEWO9

— Anna Paulina Luna (@realannapaulina) March 24, 2023

Testifying before Congress, Shou Zi Chew, CEO of TikTok, committed to keeping user safety at the forefront of the platform’s goals. He also vowed to firewall protect US data from “unwanted foreign actors” and promised that TikTok would be a place for free expression that would not be manipulated by any government. Contextually, that claim would seem to support claims that China has nothing to do with any of TikTok’s data collection. Given their zealous defense of their continued presence in Montana, the US looks to be just as implicated in the no-manipulation clause:

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One of the largest hurdles to the Montana law surviving a legal challenge will be the high bar of the US Constitution’s free speech protections, which TikTok alleges were challenged…Specifying particular content as a basis for a ban will likely subject Montana’s law to strict scrutiny, requiring the state to show a compelling reason for the regulation. A court could also view the ban as a prior restraint on speech, something the US Constitution generally prohibits.

TikTok will also be putting forth preemption clause arguments that seem compelling:

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TikTok argued Montana’s ban violates the US Constitution because it interferes with the federal government’s purview to set foreign policy and is preempted by federal action…When state and federal policies conflict, however, courts have ruled that state laws are preempted by national actions.

“In this case it’s pretty clear there’s a strong argument in favor of preemption,” [says Elena Chachko, an incoming professor at the University of California Berkeley School of Law and a current lecturer at Harvard Law School]. “This is an area where the federal government has taken concrete steps—there’s a process going on, it’s produced a settlement that’s being implemented.”

There are a few hoops this would have to jump though before it makes the Supreme Court, but if it did, the free speech, preemption, commerce clause jurisprudence — hell, espionage jurisprudence that could come forth — would be massive. Either way this goes, I’m sure this will blow up over TikTok. If Montana’s residents can’t see the videos, trust that they can get the gist of it here.

TikTok Raises Four Big Constitutional Challenges to Montana Ban [Bloomberg Law]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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China, Constitutional Law, Free Speech, Montana, Technology, TikTok