On May 7, Reason Foundation joined with the American Civil Liberties Union, Electronic Frontier Foundation, and others in an amicus brief to the federal Ninth Circuit Court of Appeals, arguing that Montana’s ban on TikTok violates the First Amendment of the Constitution. It turns out that many of the arguments in the Montana case also apply to the recent Protecting Americans from Foreign Adversary Controlled Applications Act passed by Congress, which would ban TikTok if it is not sold to a non-Chinese company.
My Reason colleagues Elizabeth Nolan Brown and Spence Purnell recently wrote about the federal law and why the arguments for banning TikTok don’t hold water, and I won’t rehash much of that here.
In 2023, Montana passed a law banning TikTok in the state. The law was overturned in federal court, but the state is appealing. It was the first state law to take action after many months of tirades against TikTok by politicians from both major political parties. But the Montana ban, and now the federal one, trample all over the First Amendment in their zeal to stop a made-up threat of the Chinese government allegedly spying via TikTok.
In the federal district court ruling overturning the Montana law, District Judge Donald W. Malloy pointed out that it “completely bans a platform where people speak.” As Reason Foundation’s amicus brief points out, the Montanan law:
[D]irectly restricts protected speech and association, deliberately singles out a particular medium of expression for a blanket prohibition, and imposes a prior restraint that will make it impossible for users to speak, access information, and associate through TikTok. As a result, the statute triggers an especially exacting form of First Amendment scrutiny.
TikTok is important for free speech because, as our brief also notes:
In 2017, the Supreme Court recognized that the “most important places … for the exchange of views” are ‘the ‘vast democratic forums of the Internet’ in general … and social media in particular.” Applying this to the Internet of today, the district court acknowledged TikTok’s role as an immensely popular social media platform, and correctly concluded that use of the app to share and receive ideas, information, and opinions with other users around the world lies “squarely within the First Amendment’s protections.”
TikTok is used by many Montanans and millions of Americans to exercise their free speech. And state officials knew that:
The State’s content-based justifications for the ban make clear that the State is targeting speech it finds distasteful. The text of the law cites “dangerous” TikTok content, and during House debates, legislators highlighted concerns that TikTok’s curation of content on the app could promote viewpoints favorable to China. The State’s attempts to cast SB 419 as a generally applicable consumer-protection bill cannot mask the ban’s true purpose and effect: to single out and suppress speech on TikTok based on the State’s anti-China political views.
Whatever you may think about TikTok, in a worst-case scenario, no social media app or abuse of its users’ data could match the harm that could be inflicted by partisan politicians having the power to ban businesses they don’t like. In that case, each major political party could attack, restrict, or ban those companies they see as supporting the other party, and any sense that we, as consumers, can still choose what business to interact with would be gone for good.
The Montana law banning TikTok is terrible and unconstitutional, and the federal TikTok ban is arguably worse because of the size of the abuse of power.