Mont. TikTok Ban Reeks of ‘Authoritarian’ Conduct, Say NetChoice, Amicus Brief

By banning TikTok, Montana seeks to build “a virtual wall that will prevent the flow of information” to and from internet users within the state, said NetChoice and Chamber of Progress in an amicus brief (docket 9:23-cv-00056) in support of the injunction sought by six TikTok influencers and users to block Montana Attorney General Austin Knudsen (R) from enforcing the ban, SB-419, beginning Jan. 1 (see 2307070002).

The harm of this type of "platform-specific ban" can’t be “overstated,” said the brief, filed Monday in U.S. District Court for Montana in Missoula. The harm “will be felt personally by countless individuals and businesses who will be abruptly and arbitrarily cut off from one another,” it said. It will also be felt at the “community level,” as local, statewide, national and global online communities are “disconnected,” it said. “Even further, the internet, as a whole, will become fragmented and its value to humanity diminished,” it said.

A platform-specific statewide ban that promotes harmful internet fragmentation is "antithetical to the First Amendment and free commerce," said the brief. It also "runs afoul of core principles of federalism," it said. The ban "directly undermines the interests protected by the Constitution’s Commerce Clause by restricting the global flow of information and commerce on state lines," it said.

The ban also requires "coercing" users of TikTok outside Montana to provide their location information to the platform "to implement the ban on users inside Montana," said the brief. In that way, by effectively requiring disclosure of more information to protect privacy interests, the ban reflects "the same irreconcilable hypocrisy" that the state demonstrates "by engaging in the very authoritarian conduct that it purportedly opposes," it said.

Montana’s effort to cut Montanans off from TikTok's global network “ignores and undermines the structure, design, and purpose of the internet,” said the brief. If allowed to take effect, the ban “will usher in a balkanized internet where information available to users becomes regionally divided based on local politicians’ whims or preferences,” it said. That outcome “would undermine the fundamental nature and benefits of the worldwide web,” it said.

The ban would “equally violate” well-established constitutional principles of federalism,” said the brief. It would harm local businesses, and curtail speech, innovation and political advocacy, while disconnecting Montanans from “an ever-growing global community,” it said.

The ban, if allowed to stand, also could set “a worrisome precedent,” said the brief. Other states seeking to control “disfavored online fora may be emboldened to follow suit in the name of national security,” it said. That’s the sort of “authoritarian” conduct, “inimical” to free speech and free commerce, that Montana “purports to oppose,” it said. A preliminary injunction is necessary to prevent the “multitude of irreparable harms” that will result if Montana’s TikTok ban is allowed to take effect, it said.