Bloomberg Law
May 26, 2023, 9:05 AM

TikTok Raises Four Big Constitutional Challenges to Montana Ban

Skye Witley
Skye Witley
Alex Ebert
Alex Ebert

Montana’s TikTok ban is unlikely to survive legal challenges, especially claims the ban violates free-speech protections.

TikTok sued the state on constitutional grounds, broadly accusing Montana of unfairly singling out TikTok and violating free-speech protections. Attorneys and academics said the ban is not likely to survive the challenges, and the outcome is expected to influence whether governors in other states pursue their own bans.

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.

State lawmakers primarily intended the ban to protect Montanans’ personal data from access by the Chinese government—the same concern that has spurred state and federal agencies to block use of the app on government-owned devices.

The Department of Justice is investigating whether TikTok Inc.'s owner ByteDance Ltd., based in Beijing, has surveilled the accounts of US citizens. A previous report of actions by former ByteDance employees offered some proof that American users’ data is not completely protected from improper access.

TikTok, though, has repeatedly denied that the Chinese government has access to American app users’ data. A company spokesperson declined to provide an updated comment for this article.

Montana will need more than security fears to defend the ban against TikTok’s suit, said Stanford Law School professor Evelyn Douek, a First Amendment scholar.

“Courts won’t accept mere assertions that these national security concerns exist,” she said. “They’ll want the government to prove that national security concerns are real, and we haven’t seen that evidence so far.”

Attorneys told Bloomberg Law that TikTok made some solid arguments related to free speech, attainder clauses, federal preemption, and commerce clause claims in its initial complaint.

Free Speech

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.

“Current legal precedent supports the argument that this flat-out ban, with the findings that Montana and their lawmakers have put forward, is unconstitutional,” Douek said.

The preamble of the law (SB 419), in addition to citing national security concerns over the collection and use of Montanans’ personal data, calls out specific types of content on the platform as a reason for enacting the ban. These include videos that show “placing metal objects in electrical outlets, swerving cars at high rates of speed” and “smearing human feces on toddlers.”

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.

Despite TikTok content that can be “pretty silly, pretty obnoxious, and some of it pretty troubling,” Douek said, Montana may have difficulty proving it has a compelling justification to block the app.

Bill of Attainder

The US Constitution prohibits federal and state government from targeting a party with legislation that accuses them of committing a crime without first pursuing a trial, known as a bill of attainder.

Montana’s ban is an unconstitutional bill of attainder because it singles out TikTok and holds it liable for “harsh penalties based on speculative concerns,” rather than regulating all foreign-owned social media apps, TikTok argued in its complaint.

TikTok might face some difficulty in proving that claim, because the ban “violates the spirit of the attainder clause, even if might not violate the letter,” said Roderick Hills, a constitutional law professor at New York University in Shanghai.

“The problem with it is, it looks like most of what Montana is worried about is prospective behavior, or an ongoing problem: foreign control,” Hills said.

The Supreme Court’s 1950 decision in American Communications Association v. Douds held that the attainder clause doesn’t cover laws “intended to prevent future action rather than to punish past action.”

Another key element for winning attainder claims is proving that the law inflicts some form of punishment, Hills said.

TikTok claimed that the $10,000 daily fines it could face for violating the law meet that description.

Federal Preemption

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.

It’s likely to be a strong argument, based on both federal court precedent and the fact that TikTok is currently working on a deal to localize its data collection in the US after several years of negotiations with the federal Committee on Foreign Investment in the United States (CFIUS), said Elena Chachko, an incoming professor at the University of California Berkeley School of Law and a current lecturer at Harvard Law School.

States inject themselves into foreign affairs “all the time,” Chachko said, and when the state and US policy align, the federal government usually follows a “live and let live” approach. A recent example is North Carolina’s assistance—including providing state National Guard military equipment—to Ukraine in the war against Russia.

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,” she said. “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.”

The TikTok case also presents a situation where federal action may be wise.

“You also don’t want every state having its own policy on an app that’s available globally and in every state—you want that regulated at the federal level,” Chachko said.

Commerce Clause

Montana reached beyond its legal authority to regulate commerce when it banned TikTok, by interfering with the app’s availability to users in other states and potentially disrupting the flow of commerce between states, the company’s lawsuit claims.

TikTok alleged those potential impacts of the ban violate the US Constitution’s commerce clause, which gives Congress—not states—the power to regulate interstate and international commerce.

TikTok argued that non-Montanans traveling though the state would also be affected by the ban, which may result in those who want to retain access to the app avoiding the state.

Not all laws that impose burdens on out-of-state visitors automatically run afoul of commerce protections, however, said David Straite, a partner at Dicello Levitt LLC.

“I think TikTok, while they have an argument, it’s not guaranteed,” he said.

The most recent example comes from a recent 5-4 US Supreme Court decision in National Pork Producers Council v. Ross that upheld a California law banning the sale of pork when the pigs are kept in confined spaces, Straite said.

In the TikTok case, however, the law’s text expressly identifies concerns over the Chinese ownership of the app’s parent company, said NYU’s Hills.

TikTok alleged in its lawsuit that by doing so, the law also violates the commerce clause because it “facially discriminates against foreign commerce” in an attempt to regulate it.

“TikTok is going to have to prove that Montana had the purpose of discriminating against the company because it was foreign owned, but I don’t think it’s going to be all that hard,” Hills said.

To contact the reporters on this story: Skye Witley at; Alex Ebert in Madison, Wisconsin at

To contact the editors responsible for this story: Tonia Moore at; Alicia Cohn at; Jay-Anne B. Casuga at

Learn more about Bloomberg Law or Log In to keep reading:

Learn About Bloomberg Law

AI-powered legal analytics, workflow tools and premium legal & business news.

Already a subscriber?

Log in to keep reading or access research tools.