Prohibition returns?

A new prohibition movement against noxious, intoxicating products may be emerging, and Montana is leading the charge. It’s not alcohol this time. On May 17, the state became the first to enact an outright, unqualified ban on TikTok that will go into effect in January.

Unlike other states that are occupied with protecting minors from the effects of social media, the Treasure State is concerned with the deleterious effects of TikTok on all its citizens—not just threats to health but to national security as well. Distinct from similar social media bills, the impetus for Montana’s is explicitly national security and user privacy, that is, “to protect Montanans’ personal and private data from the Chinese Communist Party.”

To be clear, the law would not punish individual users but would fine TikTok itself and the app stores for every download in the state.

In short order, the Chinese-based video app challenged the new law citing, among other claims, alleged anti-Chinese animus. Of course, it is simply a fact that TikTok is owned by Beijing-based ByteDance, though run by a stateside subsidiary.

So too, privacy concerns are justified. Montanans are right to be worried, especially given growing U.S.-Chinese tensions and China’s numerous documented mass-espionage efforts, coupled with the equally well-documented nature of government-corporate relations in China. The FBI, NSA, and FCC have warned of data insecurity when it comes to TikTok, and for good reason.

Not two weeks ago, a former ByteDance executive revealed that TikTok maintains a backdoor for the Chinese government to access U.S. user data. The United Kingdom is banning access to the app on state-issued phones. Our own federal government has done the same. So have universities. A new bipartisan Senate bill, if passed, would expand presidential powers to ban “foreign-linked producers of electronics or software that the Commerce Department deems to be a national security risk.”

TikTok claims the law violates free speech, but note the irony: TikTok laments the denial of access for Montanans even as TikTok is not available in China.  Legally, the preemption question leveled by TikTok is more interesting. Is it within Montana’s constitutional authority to ban a product to protect its citizens from adversaries foreign and domestic?

Traditional state police powers enable states to act for the safety, health, and welfare of their citizens. Regulation of noxious products is an historic expression of these powers. Security of Montanans from foreign invasion of privacy arguably fits within this constitutional paradigm as well.

That said, the federal government may preempt state regulation if there is a conflict of law or if the “field” of regulation in question has been monopolized by the federal government.

Insofar as the federal government is already attempting to regulate TikTok on this front there is no reason that Montana cannot go further—it simply could not be less restrictive than parallel federal constraints. To win on a preemption claim, TikTok would have to demonstrate a genuine conflict of law or explicit federal exclusivity.

Field preemption is a rarely invoked doctrine, but Supreme Court jurisprudence makes clear that it may be appropriate when a state intrudes on and impairs a matter of foreign policy with no real claim to be addressing an area of traditional state responsibility.

But Montana is not subverting federal primacy over foreign affairs simply because it has predicated its law on national security. Of course, we do not want states going around making unilateral foreign treaties and the like on their own. But in the absence of direct conflict between state and federal law, TikTok must demonstrate that the Montana law is actually interfering with national security or foreign policy, directly or indirectly.

In terms of secondary effects, if TikTok’s position were to be adopted, then state sovereignty to protect the health, safety, and welfare of citizens would be severely limited to the extent that the residency of a corporation within a global economy would preclude state-level regulation. This would be the end of traditional Tenth Amendment privileges, the end of parallel sovereignty, the end of federalism.

Broadening the scope, why does all this matter? We have entered a period of state-level legislative assertiveness, a reinvigoration of federalism with arguments like the one outlined above. Conservatives should be reminded that, as the late Justice Scalia insisted in a 2012 dissent, states are concurrent sovereigns with the federal government. The right to rule well for the good of the citizenry falls to lesser magistrates as much as it does to kings.

State leaders should remember this truth as America faces a host of new challenges and new opportunities.