TikTok versus the Treasure State

MYRNA BROWN, HOST: It’s Thursday the 25th of May, 2023.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Myrna Brown.

MARY REICHARD, HOST: And I’m Mary Reichard. Up first: TikTok versus Montana.

While lawmakers in Congress debate mitigating the dangers of the social media platform, Republicans in the Treasure State have taken action.

Here’s state representative Shelley Vance back in March:

SHELLEY VANCE: It's an honor for me to bring you Senate Bill 419, a bill to ban TikTok in Montana.

BROWN: Supporters said the bill is needed to protect the data privacy of U.S. citizens from the Chinese-owned company and its handlers in the Chinese government.

But skeptics say that the bill poses a direct threat to the First Amendment right to free speech by blocking access to the social communication platform.

REICHARD: After the Legislature passed the bill, Governor Greg Gianforte signed the bill into law last week. The opposition response was swift.

A group of TikTok personalities based in Montana filed a lawsuit within hours of the signing ceremony. The company itself then filed its complaint against the state on Monday.

BROWN: Well, what’s at stake in this conflict between lawmakers and influencers?

WORLD legal reporter Steve West joins us now to talk about it. Good morning, Steve.

STEVE WEST, REPORTER: Good morning, Myrna, good morning Mary.

BROWN: Steve, what are the competing interests in this group of cases?

WEST: Well, in the findings that preface the Montana law, there's a focus on national security, on data privacy, and even on the protection of minors from damaging content, something we've heard about lately. Now in their lawsuit content creators focus on economics on how this ban would deprive them of significant income as a result of the content they post. TikTok, of course, in their lawsuit would also lose, say they also would lose income. But more than that, they don't want to be faced with a patchwork of states, some allowing TikTok, some not. And they say they want to protect this forum for people to promote their political and social views and find shared interests. So they're really focusing on the laudable sort of good things that they say TikTok does for folks and not on the bad stuff that we've heard about.

BROWN: What legal arguments do the Montana citizens and TikTok bring to the table?

WEST: Yes, well, free speech tops the list. Of course, most content creators and Tiktok lead off with that constitutional right, which which they have and say the state has no compelling interest in national security and no proof that the Chinese government is mining data from Tiktok users. They also say that the federal law preempts state law on this issue, and that if any government is to legislate in matters of national security, then it ought to be the federal government. And they both say it also violates the Commerce Clause of the US Constitution, arguing that states shouldn't be able to interfere with the free flow of goods and services in the country. And then finally, in an unusual argument, tick tock attorneys dig deeper in the Constitution. They argue that by focusing the law on tick tock, tick tock alone for punishment, the state has issued an unlawful bill of attainder which is banned by the Constitution.

REICHARD: Steve, I assume state lawmakers considered these grounds for potential lawsuits when drafting the bill. What did they do to make sure it would be constitutional?

WEST: Well, you know, they had to know, of course, that they would be challenged on this, making it effective January first of next year may be a clue that they knew that there were some things that were going to happen before this would take effect. I'm not aware of how it was reviewed legally. But I suspect they believe that the reason they have for this national security, among others, is compelling enough. And, you know, at this point, no less restrictive approach is available to them other than to ban it. The governor did ask for some modest changes before it went forward. But that ship had already sailed. So they didn't make it into the bill as passed. He signed it anyway.

REICHARD: So what’s next in this litigation?

WEST: Yeah, this is not one of those lawsuits, that is sort of moving ahead as if there's some emergency since that law doesn't take effect until January 1 of next year. So likely the challengers will want to be heard on motions to block the law from going into effect called motions for preliminary injunctions. That won't be immediately, but it will likely be sometime early this summer. And then a judge could combine the two cases for efficiency, because many of the arguments, of course, are the same, the interests are, are pretty much aligned between the content creators and TikTok.

BROWN: We know the harms and security risks of TikTok. Steve, do you think Montana’s law is the best approach to fight that?

WEST: Yeah, I don't think this is the best approach. And I think more than that free speech experts don't think it will survive. It's about as restrictive as you can get as a complete ban on TikTok, for one thing, and the national security risk is long claims but short on detail. So it's hard to really support this in court. Much of the stuff about national security, they're not going to have access to it also singles out one platform for punishment that's unusual, and seems unfair picking sides allowing competitors, the competitors of TikTok an advantage. So a real national security problem that begs for a federal response, perhaps a comprehensive law on data privacy would be the better approach.

BROWN: Well, Steve West is a legal reporter for WORLD. Thanks for bringing us this story!

WEST: It’s been my pleasure. Thank you.

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