Montana recently became the first state to ban TikTok, the latest action in an ongoing debate about what, if anything, policymakers should do about the popular app whose parent company, ByteDance, is based in China.
The ban in Montana is unlikely to hurt TikTok, but if it even works, it will primarily hurt Montanans.
TikTok is a short-form video app that has gained rapid popularity in the 2020s. While it is probably best known for things like viral dance trend videos, TikTok has become a forum for a new type of expression that many find is the best way to communicate and connect with their audience.
Banning TikTok takes away a venue for expression by government action. While other platforms exist, the creators and small businesses that use TikTok have selected it as one of the best ways to connect with their fans.
For this reason, the Montana ban — like others proposed for TikTok — runs afoul of the First Amendment. The Montana government will have a high burden in court to prove that such a speech restriction is necessary to address the government’s concerns. In fact, a group of TikTok users already has sued the state over the potential impact of its action.
State-level app bans are particularly problematic, because they could lead to a splintering of the internet that could create confusion for consumers and companies, and could impact consumers in other states. Depending on how a law defines the state’s covered citizens, internet regulation can easily apply to out-of-state residents who travel to the state and/or the state’s residents when they are in other states.
This means complying with a ban is not as simple as geofencing (that is, technologically blocking) a certain area, which gives rise to another potential constitutional concern known as the Dormant Commerce Clause.
The impact of the Dormant Commerce Clause on interstate commerce and commerce beyond a state’s borders is an increasing issue for any number of internet regulations at a state level, such as content moderation and data-privacy laws. The result could be an internet that some states restrict in the same way authoritarian countries such as China or Russia do.
There are also pragmatic questions about the ways a ban could work. For example, if the burden is on app stores to prevent future downloads, it is unknown what, if any, enforcement there would be against those who already have the app on their phones. To circumvent the ban, Montanans may soon find themselves using VPNs that would make it appear their location is somewhere else. In Utah, a law seeking to create additional requirements to access online porn led to a significant spike in downloads and searches for VPNs. Given the more general popularity of TikTok, a similar or greater rise in the use of VPNs could render Montana’s ban practically useless.
A TikTok ban may backfire in other ways for the politicians and governments. For example, Montana’s tourism marketing department had seen a high engagement rate on the platform but was forced to go dark with the state’s previous government device ban. A ban may now further impact marketing, as those seeking venues to provide entertainment may find themselves looking elsewhere.
Specifically, Gen Z, an age group emerging as a popular target for a wide range of marketers, is a growing and motivated voting bloc and, in general, a group more opposed to a ban than other generations. For many younger voters, a TikTok ban may be just the latest example of older, out-of-touch politicians who don’t understand the problems or values of their younger constituents.
So, now the clock is ticking on what happens next for TikTok. But other states and the federal government should carefully consider the potential consequences before following Montana’s lead.
Jennifer Huddleston (@jrhuddles) is an adjunct professor at Antonin Scalia Law School at George Mason University and a technology policy research fellow at the Cato Institute.
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