Does Montana's law to ban TikTok violate Sections 9 and 10 of the Constitution?

Question

The State of Montana has passed SB419 which bans TikTok within Montana.

This Washington Post article indicates that TikTok could avoid the ban provided its ownership was not based in, "any country designated as a foreign adversary" by the bill's effective date of January 2024.

This seems like this would constitute a bill of attainder which is expressly prohibited by Article I, Sections 9 and 10 of the Constitution. Is this accurate or does the bill's contingency clause for voiding create a loophole to avoid becoming a bill of attainder?

Answer 1

There are potential constitutional challenges to the bill, but as noted by the answer from user6726, a bill of attainder challenge would not be a very strong one. Better arguments that the legislation is unconstitutional would include (in approximate order of legal strength) arguments that:

• it violates the "dormant commerce clause" by unduly regulating interstate commerce,

• it is pre-empted by federal statutes which have "occupied the field" of social media regulation (e.g. with the Digital Millennium Copyright Act),

• it purports to make foreign policy which is in the exclusive jurisdiction of the federal government (in connection with its "any country designated as a foreign adversary" provision),

• it is effectively regulating conduct outside the territorial scope of the state's authority to regulate conduct (a new SCOTUS case law doctrine from the California pork regulation case decided this month), and

• it unduly burdens free speech since TikTok is analogous to a modern magazine or newspaper and is regulated more heavily than non-expressive content on a non-content neutral basis.

Answer 2

In light of extant case law, this is not a Bill of Attainder. Nixon v. Administrator of General Services, 433 US 425 identifies the essential characteristic of such a forbidden bill:

a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial

This case was in response to a bill passed by congress directing the Administrator of General Services to take custody of Nixon’s presidential papers and tape recordings, specifically identifying Nixon by name. The court rejected an argument that "an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes". The crucial question is whether the bill enacts a "punishment". Analogous to the prohibition of using products by Kaspersky Labs (Kaspersky Lab, Inc. v. US Dept. of Homeland Sec., 909 F. 3d 446) where Congress prohibited using those products in certain government computers but it was found that the restriction "is not a punishment but a prophylaxis necessary to protect federal computer systems from Russian cyber-threats", the Montana law is not a punishment, it is prophylaxis necessary to protect the citizens of Montana from a threat (per the Montana legislature). No person is found guilt of a crime by this law – any punishment (the daily fine for violating the law) is determined based on general principles of law not legislative fiat, and is imposed by a court of law after a trial. If you violate this law, you will be tried in court and if found guilty, you will be punished – hence the law is not a bill of attainder.