Montana Sets Itself Up for First Amendment Lawsuits With TikTok Ban

Montana Republican Gov. Greg Gianforte has signed a highly unconstitutional statewide ban on TikTok. The measure prohibits app stores from offering TikTok for download to the phones of Montana residents and also says flatly that “Tiktok may not operate within the territorial jurisdiction of Montana.”

Any entity that violates the ban can be fined $10,000 for each violation and “an additional $10,000 each day thereafter that the violation continues” (but penalties “do not apply to users of tiktok,” the law states).

To protect Montanans’ personal and private data from the Chinese Communist Party, I have banned TikTok in Montana.

— Governor Greg Gianforte (@GovGianforte) May 17, 2023

The ban—S.B. 419—was first approved back in April by Montana’s Legislature—which managed to spell the app’s name wrong in the bill’s short title (“Ban tik-tok in Montana”), if that tells you anything about the level of ignorance at play here.

An entity—defined only as “a mobile application store or tiktok”—violates the ban anytime “the operation of tiktok by the company or users” occurs in Montana. That language suggests TikTok or app stores may be liable if people use virtual private networks or other means to skirt the state’s ban. However, the law also states that “it is an affirmative defense…if the violating entity could not have reasonably known that the violation occurred within the territorial jurisdiction of Montana.”

Nonetheless, the law may manage to be unconstitutional in multiple ways.

Not only does it violate the First Amendment rights of TikTok users, the company itself, and app stores that might want to offer it but it’s also “a clear bill of attainder, which is explicitly barred by the Constitution,” suggests Techdirt‘s Mike Masnick. (Bills of attainder single out a person or entity for punishment without court proceedings.)

In a seeming attempt to address the bill-of-attainder concerns, Gianforte initially sent the bill back to the legislature with amended language that didn’t single out TikTok.

Of course, Gianforte’s proposed changes ranged “from ‘missing the point’ to ‘profoundly idiotic,'” suggested First Amendment lawyer Ari Cohn. “The naming of TikTok was not [the] ultimate infirmity of the bill—the problem was that the bill took a sledgehammer to speech in order to kill a (potentially imaginary) fly. A bill that effectively does the same thing (just now potentially to other platforms too!) does nothing to address the First Amendment concerns.”

Gianforte’s amended version also ran the risk of banning most, if not all, social media platforms from operating in Montana, noted Cohn:

Things get especially stupid when you look at what actions will sweep a platform under the bill’s blanket ban:

(1) A social media application may not operate within the territorial jurisdiction of Montana if the social media application allows:

(a) the collection of personal information or data; and

(b) the personal information or data to be provided to a foreign adversary [N.B. as defined by federal law] or a person or entity located within a country designated as a foreign adversary.

“Personal information or data” can include things as simple as someone’s first or last name, contact information, or username—that’s how it’s defined in the federal Children’s Online Privacy Protection Act, for instance. “In other words, the types of information that accompany virtually every piece of content posted on social media,” wrote Cohn.

If a platform allows that kind of information to be provided to any foreign adversary or a person or entity located within a foreign adversary, it is banned from Montana.

Do you know who might be persons located within a country designated as a foreign adversary? Users. Users who are provided the kinds of “personal information” that are inherent in the very concept of social media.

So, effectively, the bill would ban any social media company that allows any user in China, Russia, Iran, or Cuba to see content from a Montana user (and this is a generous reading, nothing in the bill seems to require that the data/i