When Midnight Strikes: On the Constitutional Fate of TikTok in Light of Montana’s State Ban

Cinderella is a beloved children’s tale that pits the princess against a curfew that threatens to derail her fanciful time at the ball. Throughout the night, Cinderella thwarts her stepmother and sisters’ attempts to embarrass her, and instead, charms the prince. Unfortunately, her luck ends right as the clock strikes midnight, which transforms her back into the humble maid she was prior to the fairy’s magic work.

TikTok has been the Cinderella of the internet for the past three years. Dazzling the American public with their innovative social media platform, the company reported in March 2023 that 150 million Americans users regularly use the app [1]. Yet, despite the app’s widespread popularity among the general public, various levels of the American government are far less enthusiastic about the platform, their chief concern being the national security threat that the app poses. Owned by the Chinese company Bytedance, legislators across the nation fear that the company will cave into the Chinese government’s demand to extract the data and information of American TikTok users.

Playing the role of the antagonistic stepmother and sisters, both the federal and state governments have firmly pushed back against TikTok. President Biden issued support for the RESTRICT Act, a bipartisan Senate bill that aims to arm the executive branch with greater power to restrict access to foreign apps that pose a national security threat [2]. More than half the states in the union have instituted a TikTok ban on state-owned devices [3]. In May 2023, Montana governor Greg Gianforte made history by issuing the first TikTok ban that applies to all citizens in a given state. Effective January 1, 2024, SB 419 outlaws the use of TikTok in the state of Montana, with violations warranting a $10,000 fine [4]. The clock is ticking for the online Cinderella, but will it suffer the same dreadful fate as the Disney princess?

In response to SB 419, TikTok launched a lawsuit under the case TikTok, Inc. v. Austin Knudsen, arguing that SB 419 violates the First Amendment and the Commerce Clause, as well as contending that SB 419 is preempted by federal law. A group of TikTok creators also challenged the state’s law by filing a class action suit under the case name of Alario et al. v. Knudsen. On June 28, 2023, the two cases were consolidated for hearing in the United States District Court for the District of Montana. The District Court will hear the plaintiffs’ motion for a preliminary injunction against SB 419 on October 12, 2023.

Before examining the arguments by the company and its users, as well as the state of Montana, it is important to summarize the brief yet essential history of TikTok bans in the United States. The federal courts have struck down three attempts by the Trump Administration to ban Chinese-owned social media apps in the United States. In TikTok Inc. v. Trump, the US District Court for the District of Columbia held that the President “lacked authority to issue an executive order to ‘regulate or prohibit, directly or indirectly’ any exchange of ‘informational materials’ or ‘personal communication[s]’ transmitted to the United States through TikTok" [5]. In Marland v. Trump, the US District Court for the Eastern District of Pennsylvania rejected the Trump Administration’s argument that the TikTok Ban was needed for national security purposes, finding the administration’s argument on the national security threat posed by TikTok to be merely “hypothetical" [6].

The Trump Administration also faced a constitutional roadblock when issuing their ban on WeChat, another Chinese-owned social media app. In U.S. WeChat Users All. v. Trump, the US District Court for the Northern District of California found the plaintiffs’ argument compelling that “the Ban ‘effectively eliminate[d] the plaintiffs’ key platform for communication, slow[ed] or eliminate[d] discourse, and was the equivalent of censorship of speech or a prior restraint on it'" [7]. In the WeChat dispute, the court ruled against Trump’s ban of the platform in part because “WeChat is the only option for many Chinese speakers with limited English proficiency" [8]. Thus, banning the app would leave users of WeChat without a viable comparable online platform to use. However, the five plaintiffs in Alario et al. v. Knudsen are English-speaking Montanans who even under SB 419 would have access to other similar forms of social media, like Instagram’s reels feature and Facebook’s story feature.

In any case, considering the federal government’s recent failure at outlawing Chinese-owned social media apps, two observations are apropos. First, due to the unprecedented nature of Montana’s state-wide TikTok ban, Montana Attorney General Austin Knudsen opined that the TikTok ban will be the “next frontier in First Amendment jurisprudence that’s probably going to have to come from the U.S. Supreme Court.”

This leads us into the second observation: SB 419 is a ban on a social media platform, not just a ban on social media expressions. This distinction is critical. In Packingham v. North Carolina, the US Supreme Court recognized that “a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen [9]. Further, the unanimous Court in Packingham, citing the 1997 Reno v. American Civil Liberties Union decision, argued the cyberspace, which includes social media platforms, is one of the most important venues for the free exchange of ideas [10]. The only way individuals can express themselves is if they have access to platforms that can amplify their voices. Montana’s TikTok ban is novel in that it not only regulates citizens’ ability to post and share expression; it removes the ability altogether by taking away an entire platform and medium of communication from the public square. Of course, Montana asserts that its ban on a social media platform is justified because of TikTok’s national security concern. Therefore, given TikTok’s meteoric rise from 2020 to 2023, it would be proper for the Supreme Court to hear TikTok’s dispute against Montana (if either party decides to appeal all the way to the High Court) and establish binding precedent on how the courts should handle bans on social media platforms that are a response to national security concerns.

When examining the two cases in consolidation, the plaintiffs mainly argue that SB 419 violates the First Amendment, the Fourteenth Amendment, the Commerce Clause, and is preempted by federal law. A brief remark on each issue before examining the state’s arguments. To the First Amendment issue, plaintiffs contend that SB 419 functions as a prior restraint on speech since it outlaws an entire medium of communication, and by extension, any speech that would have been posted on TikTok absent SB 419. The plaintiffs cite Nebraska Press Association v. Stuart’s holding that “prior restraints on speech and publication ‘are the most serious and the least tolerable infringement on First Amendment rights.’” The Court in Stuart clarified that the above holding is particularly relating to matters of dealing with “communication of news and commentary on current events" [11]. The Court’s decision in Stuart followed its decision in New York Times Co. v. United States, the landmark case which established the presumptive unconstitutionality of prior restraint, even in the context of protecting national security.

To justify prior restraint, the government must fulfill the judicial standard of strict scrutiny. This standard requires the government to show a compelling interest for the statute, that the law is narrowly tailored to its interest, and that the law presents the least restrictive means possible to accomplish the interest [12]. In analyzing the state’s interest, I take their claim of national security interest in good faith. Assuming that TikTok indeed poses a national security threat, then the state has a strong case at showing SB 419 promotes a compelling interest of protecting national security. However, to satisfy strict scrutiny, Montana must also show that SB 419 is narrowly tailored and the least restrictive means possible to protect national security. Plaintiffs argue that the state need not resort to an outright ban of a social media platform; it can instead introduce a more tailored law on data privacy or establish additional protection for minors on TikTok [13]. Considering these potential less restrictive means, the plaintiffs argue that the state fails even the lower intermediate scrutiny standard.

The plaintiffs, in addition to the First Amendment argument, also take aim at the fact that SB 419 is the product of a state legislature, not a federal legislature. Because TikTok is an amorphous app, as opposed to a physical platform, there is no practical way to restrict TikTok for just Montana citizens; anyone in the state of Montana, whether citizen or visitor, will be held liable when using the app in the state. Because the law will affect visitors coming in from other states, plaintiffs argue that SB 419 violates the Commerce Clause, which vests exclusive authority to regulate interstate commerce to the Federal Government. Citing the Ninth Circuit Court of Appeal’s decision in Bernstein v. Virgin America, Inc, the plaintiffs argue that substantial burden on interstate commerce occurs when there is an “inconsistent regulation of activities that are inherently national or require a uniform system of regulation" [14]. Because it would be difficult to differentiate a Montana resident and a visitor in Montana, the plaintiffs argue that SB 419 constitutes a substantial burden on interstate commerce that only the federal government has the authority to impose.

Then, an additional question on solvency arises. Couldn’t Montana residents simply travel out of state, change the location on their phones and download the app, before coming back into Montana? Or take the citizen who had already downloaded TikTok by the time the ban became operative. Would the state then interfere into individual devices to purge the app from each of the phones in the state? With the bevy of constitutional arguments involved, it is still important to examine the practical solvency of SB 419.

SB 419’s state-level scope also poses a problem for Montana with considering federal pre-emption. National security may be a compelling interest for the state in enacting the statute, but the power to manage foreign affairs and national security lies exclusively with the federal government. For a state government to regulate an area solely designated for the federal government to handle would upset the doctrine of federal preemption, per the Supreme Court’s decision in Arizona v. United States. The plaintiffs also argue that SB 419 violates the federal regulatory framework on national security, specifically Section 721 of the IEEPA [15].

Lastly, on the Fourteenth Amendment issue, plaintiffs contend that SB 419 violates the Due Process Clause since it strips users of the liberty to choose whether to use the app or not. They also argue that users “did not receive adequate notice or opportunity to respond to the deprivations mandated by SB 419" [16]. On a factual matter, the law will not be enforced until January 1, 2024, giving users around seven months from the law’s inception to adjust their content-creating strategies. Plaintiffs argue Due Process not just on the grounds that liberty to use TikTok is curtailed, but also that users are stripped of the liberty to pursue their chosen formal occupation as TikTok content creators.

Turning to the state’s justifications for the law, the state legislature offers two. First, they justify SB 419 on the grounds that it will protect Montanans from the Chinese Communist Party spying and acquiring the data of American TikTok users. Section 4 of SB 419 stipulates that the TikTok ban will cease if the platform is acquired by a company which resides in a country not deemed a foreign adversary by the United States Secretary of Commerce [17]. This section reveals that Montana is not objecting to TikTok due to the app’s inherent nature but because it is currently owned by a company under the regime of a foreign adversary. Further, the state alleges that China is conducting international espionage in the United States and Montana, to which the plaintiffs rebut by arguing that such fears are merely hypothetical.

The state’s second justification for its TikTok ban is that the app allows dangerous content to surface that negatively affects minors on the app. The state argues that the presence of depressing content and propaganda posted by the Chinese Communist Party users will be a negative influence on children using the app. The plaintiffs respond by stating that TikTok has mechanisms in place to protect minors on the app from harmful content, mainly through the Community Guidelines. The app reports that in Q4 of 2022, 96.2% of content deemed “violent” by the community standards were removed before any users reported the content [18]. 84.7% of “violent” content was removed before it had received any public views [19].

Having evaluated both the state and TikTok’s arguments, I now comment on each side of the dispute. First, the critical point for Montana to drive home is that allowing TikTok in the state has tangibly hurt the security of its citizens’ online data. The federal courts have not been kind to past attempts at blocking TikTok (and WeChat), and while those rulings are not binding for the Supreme Court, they provide some guidance on how to evaluate future bans on TikTok and similar social media platforms. The District Court in the Marland case was clear that justifying the Trump TikTok ban required more than just making a nebulous claim that the app posed a national security threat. If the government cannot show more than hypothetical harm, “the Court cannot say the risk presented by the government outweighs the public interest in enjoining…” SB 419 [20].

Additionally, the state must strictly emphasize that allowing TikTok in the state hurts the security of its citizens, not the security of the nation. Of course, if the security of Montana’s citizens is undermined, by extension the security of the nation may be under peril. However, if the state were to lead with the argument that TikTok poses a threat to national security, as opposed to just the state’s security, the argument runs right into the plaintiff’s legitimate and compelling response that national security matters are exclusively under federal jurisdiction. If Montana does not account for this response, and keeps forwarding its national security argument, the courts will rule that SB 419 is preempted under federal law.

Even if the state passes the pre-emption test and shows that TikTok and the CCP have encroached on Montanans’ privacy, SB 419 must still pass strict scrutiny to justify its prior restraint on online speech published on TikTok. The state must not focus its justification for SB 419 on regulating specific content published on TikTok, like “dangerous” posts or Chinese propaganda, for the Supreme Court has repeatedly rebuked governmental content-based speech regulations [21]. Instead, a more strategic route for the state is to argue that SB 419 is justified for no other reason than that it regulates an online medium of communication that has been compromised by a foreign adversary. Montana would do well to argue that any speech and communication on the medium should be moved to alternative online mediums which are not controlled by companies residing in countries deemed as “foreign adversaries” by the US Department of Commerce.

The state should not seek to target any form of expression on TikTok, instead, it should point to the fact that TikTok users have viable social media alternatives that allow them to share short-length entertaining videos with their followings. By making this argument, the state escapes the plight that the Trump Administration faced in the WeChat case when it banned an online forum that was the only viable option for many of the platform’s users.

Turning to TikTok and its users, their critical point to emphasize is that the state has not shown that TikTok has imposed tangible damages on national or regional security. In the company’s legal complaint, they state that they have formed a subsidiary named “TikTok U.S. Data Security Inc.” (“USDS”) that oversees protected U.S. user data in the TikTok U.S. platform. Further, the company states that it has contracted with Oracle Corporation, a prominent U.S. public company and provider of cloud-based services, to store TikTok’s U.S. user data. By focusing on undermining the state’s assertion that TikTok poses a security threat, the plaintiffs can take a significant step towards defeating the government’s prior restraint on online speech.

Additionally, TikTok ought to remind the courts that prior restraint not only warrants strict scrutiny, but as such, is presumptively unconstitutional. Even if the state has a compelling interest to stop a threat that has materialized, the plaintiffs can argue that there are less restrictive means possible to promote regional and national security. One example is the approach that the other 32 TikTok-banning states have adopted: narrowly tailoring their TikTok ban to cover just state-owned devices [22]. Such an approach is less restrictive than SB 419 but still protects sensitive governmental data that is stored in state phones and laptops.

My analysis of the plaintiff and the state’s strength rests on the assumption that TikTok is indeed tangibly encroaching on its users’ privacy. If the plaintiffs show that there is no tangible damage, and that the damage argued by the state is merely hypothetical, SB 419 fails strict scrutiny and the state’s ban will be enjoined. Thus, TikTok, the internet’s Cinderella, can keep dancing into the night past the anticipated midnight that Montana's state-wide ban threatened.

Bibliography

1. TikTok, “Celebrating Our Thriving Community of 150 Million Americans,” Newsroom | TikTok, March 21, 2023, https://newsroom.tiktok.com/en-us/150-m-us-users.
2. Brendan Bordelon, “Biden and Congress Want to Ban TikTok. At This Point It May Be Impossible.,” POLITICO, April 16, 2023, https://www.politico.com/news/2023/04/16/why-washington-wont-ban-tiktok-00091690.
3. This is as of May 2023. For more, see Brian Fung, “TikTok Creators Sue Montana over App Ban | CNN Business,” CNN, May 18, 2023, https://edition.cnn.com/2023/05/18/tech/tiktok-montana-lawsuit/index.html.
4. Montana State Legislature, An Act Banning TikTok in Montana, SB 419, 68th Legislature, https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf.
5. TikTok Inc. v. Trump, 490 F. Supp. 3d 73, 83 (D.D.C. 2020)
6. Marland v. Trump, 498 F. Supp. 3d 624, 642 (E.D. Pa. 2020)
7. U.S. WeChat Users All. v. Trump, 488 F. Supp. 3d 912, 926 (N.D. Cal. 2020)
8. Robert L. Rembert, TikTok, WeChat, and National Security: Toward a U.S. Data Privacy Framework, 74 OKLA. L. REV. 477 (2022), https://digitalcommons.law.ou.edu/olr/vol74/iss3/7.
9. Packingham v. North Carolina, 582 U.S. ___ (2017)
10. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), as cited in Packingham v. North Carolina, 582 U.S. ___ (2017)
11. Nebraska Press Assn. v. Stuart, 427 U.S. 559 (1976), https://supreme.justia.com/cases/federal/us/427/539/#tab-opinion-1951877.
12. David L. Hudson Jr., “Strict Scrutiny,” The First Amendment Encyclopedia, n.d., https://www.mtsu.edu/first-amendment/article/1966/strict-scrutiny.
13. TikTok Inc. v. Knudsen, 9:23-cv-00061, (D. Mont.), https://storage.courtlistener.com/recap/gov.uscourts.mtd.73544/gov.uscourts.mtd.73544.1.0_1.pdf, 44.
14. Bernstein v. Virgin Am., Inc., 3 F.4th 1127, 1135 (9th Cir. 2021)
15. TikTok Inc. v. Knudsen, 9:23-cv-00061, (D. Mont.), https://storage.courtlistener.com/recap/gov.uscourts.mtd.73544/gov.uscourts.mtd.73544.1.0_1.pdf, 48.
16. Ibid., 48.
17. The US Secretary of Commerce has identified China, Cuba, Iran, North Korea, Russia, and Venezuela as “foreign adversaries,” as cited in pages 19 and 20 of the Alario v. Knudsen complaint. For more, see https://storage.courtlistener.com/recap/gov.uscourts.mtd.73494/gov.uscourts.mtd.73494.1.0.pdf, 19-20.
18. TikTok Inc. v. Knudsen, 9:23-cv-00061, (D. Mont.), https://storage.courtlistener.com/recap/gov.uscourts.mtd.73544/gov.uscourts.mtd.73544.1.0_1.pdf, 20.
19. Ibid.
20. Marland v. Trump, 498 F. Supp. 3d 624, 642 (E.D. Pa. 2020)
21. Justice Marshall, writing for the majority in Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972), held that “the First Amendment means that [the] government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” For more, see Cohen v. California, 403 U. S. 15, 403 U. S. 24 (1971); Street v. New York, 394 U. S. 576 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 269-270 (1964), and cases cited; NAACP v. Button, 371 U. S. 415, 371 U. S. 445 (1963); Wood v. Georgia, 370 U. S. 375, 370 U. S. 388-389 (1962); Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4 (1949); De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365 (1937).
22. Brian Fung, “TikTok Creators Sue Montana over App Ban | CNN Business,” CNN, May 18, 2023, https://edition.cnn.com/2023/05/18/tech/tiktok-montana-lawsuit/index.html.