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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?

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2 Answers 2

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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:

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    Commented May 19, 2023 at 19:40
  • What about the fact the statute is incoherent? Like, it says "Tiktok may not operate within the territorial jurisdiction of Montana. An entity violates this prohibition when any of the following occurs within the territorial jurisdiction of Montana: (a) the operation of tiktok by the company or users" Surely a law declaring the conditions under which an entity is considered to have violated the law must identify actions by that entity. Taken literally, every time anyone accesses TikTok in Montana, every entity (you, me, everyone) is violating the law. Commented May 20, 2023 at 3:19
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    @Acccumulation no court would read the law that way. Courts are run by real people, not robots. Commented May 20, 2023 at 19:46
  • DMCA likely wouldn't be applicable, but (the limited remains of) the CDA might. The 1st Amendment, though, means that any social media regulation faces strict scrutiny requirements (ie, there's not that much of it, comparatively). Commented May 20, 2023 at 21:07
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    @ohwilleke - Section 230 isn't part of the DMCA (it's part of the CDA), and predates it. Commented May 22, 2023 at 3:38
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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.

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  • To clarify, you're stating that because the penalty is strictly a monetary fine (as opposed to imprisonment) then it's deemed just a prophylactic measure? What if the fine were some excessively large number like $1 billion per day; could the legislature simply insist that it's just a prophylactic measure? Commented May 22, 2023 at 18:18
  • To clarify, what stands out to me as being odd is that Montana's legislature seems like it could have crafted the legislation in a manner whereby it would only apply to one company, but took what I perceive as an extraordinary step in specifying 'TikTok' by name. Commented May 22, 2023 at 18:21
  • Actually, re-reading the bill, it stipulates a $10,000 fine for each discrete violation, which is literally applicable every time a user downloads the app; this seems likely to reach a very significant sum very quickly. So 1,000 downloads by Montana residents of TikTok, each a discrete violation, would sum to a fine of $1,000,000. Commented May 22, 2023 at 18:24

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