Montana’s Response To Lawsuits Over Laughably Unconstitutional TikTok Ban Is To Say That TikTok Is The Equivalent Of ‘Cancer-Causing Radio’
As you'll recall, Montana passed a law earlier this year to ban TikTok (and ban mobile app stores from offering TikTok for download). The bill has lots of problems, not the least of which was that Montana Attorney General Austin Knudsen flat out told the NY Times that the purpose of the bill was to censor speech that parents were complaining about:
Mr. Knudsen, a Republican, said his team had received scores of complaints from parents about TikTok content referring to drugs, suicide or pornography. As the state's legislative session approached this year, his office began looking at the idea of fully banning the app.
Montana's governor Greg Gianforte knows the bill is unconstitutional, because he originally asked the legislature to change the bill so that it applied to more platforms rather than just directly targeting TikTok. But the legislature didn't take him up on it, and he still signed the bill.
Almost immediately, a bunch of TikTok users sued to stop the law from going into effect. The following week TikTok itself sued.
Knudsen - who gave that of course we're trying to ban protected speech" answer above - is now in charge of defending the lawsuits, and he's filed basically the same memorandom in opposition to both cases. And, as is all too often the case in these types of lawsuits, Knudsen seems to see this as a political document, rather than a legal one.
Which is to say, whoooo boy, is there a whole lotta nonsense in here. There's a lot of fussing and prattling on about China and the C.C.P." and how evil they are, without much attempt to address the underlying question of how the hell do you get away with banning an entire app. The 1st Amendment arguments are... ridiculous.
The First Amendment leaves Montana no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dep't of Chi. v. Mosley, 408 U.S. 92, 95 (1972). But SB419 doesn't prohibit certain messages, ideas, subject matter, or content. It prohibits the use of a product in Montana.
This is we're not banning speech, we're just smashing your printing press." That argument has never been supported, and even things like special taxes on newspapers have been deemed to violate the 1st Amendment for it being retaliatory based on speech.
From there, Knudsen claims that there's no 1st Amendment protection in the enforcement of a public health regulation..." and then proceeds to try to argue that banning TikTok is all about health, and not about speech (even though Knudsen has clearly stated otherwise).
And, from there, Knudsen pulls out the cancer-causing radio" comparison:
Were it otherwise, Montana would be powerless to ban a cancer-causing radio merely because that radio also transmitted protected speech, or to ban sports-betting apps merely because those apps also shared informative videos teaching their users the intricacies of sports gambling. The targeted harms-preventing cancer, illegal gambling, or data-gathering by a hostile foreign state-are inherently nonexpressive and thus subject to Montana's plenary police-power regulations. Overlaying them with expressive conduct-radio communications or instructive videos-doesn't change that calculus.
But... TikTok is not cancer-causing. And, this comparison makes no sense. I know that it's a common fallacy among the moral panic set to compare social media to poisons, but speech is not a poison, or something you ingest. The main issue with Knudsen's comparison here is that if there were cancer-causing radios," it wouldn't be the speech part that is causing the cancer, nor would the ban on such radios be targeted at stopping the speech.
But here, the issue that Knudsen himself admitted, is that it's very much the speech" that parents" are complaining about which resulted in Knudsen crafting this bill. That matters. If you care about the 1st Amendment.
Hilariously, Knudsen then tries to claim that this move, banning all of TikTok across the entire state, is limited in a manner that could survive intermediate scrutiny. First of all, the law should be judged under strict scrutiny, but even if it were under intermediate scrutiny, that requires the law to be about an important government interest regulated in a narrowly tailored way.
There is nothing narrowly tailored about this. It bans the app flat out for everyone in the state. That's not narrowly tailored:
Finally, SB419's restrictions are no greater than is essential" to furthering Montana's interest in protecting Montanans' data privacy.
No one actually believes that. You want to narrowly protect Montanans' data privacy," then pass a privacy law regarding the transfer of data, not ban an entire app by name.
SB419 is narrowly drawn. It doesn't ban all online platform[s] that enable users to create, share, and view videos and other forms of content." TikTok.Br.2. Rather, it eliminate[d] the exact source of the evil it sought to remedy." City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984). Plaintiffs' cases are inapposite. SB419 is like the school-uniform policy in Jacobs-it regulates one channel of internet expression but leaves all others untouched. Thus, it's not a blanket prohibition on creating, sharing, and viewing videos on every internet-based application in the same way that Plaintiffs' cases banned the speakers' preferred medium entirely.
So this is a fun twist. Knudsen is claiming that because they just banned one company, that shows it's not about banning speech. But... they're missing which speech is being talked about here. It's banning TikTok's speech.
No one would take seriously the argument that Knudsen could shut down one newspaper in the state because other newspapers exist, or because the internet exists. But that's the crux of Knudsen's argument here. We can shut down anyone's speech we want, so long as there are other ways of speaking."
There's a lot more in there, but it's... not a very strong argument. One hopes the court will recognize that.