Montana is the first state to approve a full ban on TikTok

SB4119: An Unconstitutional Law to Make TikTok Discern Social Networks Legal in the U.S.

It’s illegal to download TikTok in the state, as well as any other app store, that makes the video-streaming app available, if the bill is passed.

Lawmakers in Montana’s House voted 54-43 to give final approval to the bill, known as SB419. Should Gianforte sign the bill, it would take effect in January. But the legislation could quickly face significant legal challenges.

Since TikTok is owned by ByteDance, the fear is that the Chinese Communist Party could request access to the 150 million TikTok accounts in America and potentially spy on U.S. citizens, or use the personal data to mount disinformation campaigns on the app.

The Trump administration attempted to put TikTok out of business in the U.S. over the same national security concerns. The move was stopped by federal courts due to the executive overreach and lack of evidence.

NetChoice’s vice president and general counsel, Carl Szabo, said that the Montana legislature’s move was dangerous because it set a dangerous precedent of government trying to ban businesses without clear evidence of wrongdoing. The US Constitution forbids lawmakers from criminalizing specific individuals or businesses. Gov. Greg Gianforte should veto this clearly unconstitutional law.”

Against the First Amendment, the Montana App Store, and the ByteDance app: a lawsuit against TikTok in Montana

Design it For Us, a coalition of youth activists pushing for changes to platform regulation, lamented that the perspectives of internet natives were not reflected in the bill.

The co-chairs of the group said that they believed social media to be good for young people if they were designed for them. “Bans like this one forgo a real opportunity to proactively address kids’ safety and privacy concerns on these platforms.”

A group representing app developers said Friday the bill could encourage governments to legislate on an app-by-app basis, creating a patchwork of laws that would “weigh heavily on small app companies.”

“While it might begin with TikTok, it clearly won’t end there,” said Morgan Reed, president of The App Association, which receives more than half its funding from Apple.

Content-based restrictions are not allowed under the First Amendment in exceptional circumstances. “Certainly, the Montana government has a compelling state interest in protecting the health, welfare, and privacy of its citizens, but the statute is so vague that it is virtually unenforceable. A vague statute is not narrowly tailored and will wither under First Amendment scrutiny.

Lynn Greenky, a First Amendment scholar and associate professor at Syracuse University, said that the language on TikTok raises an immediate “red flag” due to the presence of dangerous content.

A federal court challenge from TikTok is expected well before then, likely teeing up a legal brawl that supporters of the law in Montana say could eventually wind up in front of the U.S. Supreme Court.

Yet supporters highlight a 2017 Chinese intelligence law that requires private companies to hand over data about customers to the government if Beijing ever requests such information. This comes despite TikTok’s pushback that it would never comply with such a request.

The aggressive crack down on TikTok in Montana arrives as the Biden administration continues to negotiate with the company about is future in the U.S. The White House warned TikTok last month to either sell its stake in ByteDance or face a nationwide shut down.

Last month, TikTok Chief Executive Shou Zi Chew faced withering questions from lawmakers in Washington, as he attempted to mollify bipartisan fears about the social media app.

Most lawmakers said Chew’s testimony, which was at times evasive on questions about China, was unconvincing and only served to further harden their positions against TikTok.

Knudsen: Introducing the Next Frontier in First Amendment jurisprudence when the US Supreme Court inevitably gets there

“We’re under no illusions that this is not going to get challenged,” Montana attorney general Austin Knudsen told The New York Times on Wednesday. “I think this is the next frontier in First Amendment jurisprudence that’s probably going to have to come from the US Supreme Court. This is most likely headed to that location.