The Spy in Your Pocket: Montana’s TikTok Ban and the Federalism Limits of State-level Foreign Policy

In May 2023, Montana became the first state in America to ban the social media app TikTok. This article proposes a two-prong analytical framework for evaluating the federalism limits of Montana’s TikTok ban (SB 419) and similar laws that other states might enact in the future. The first prong is a mandatory constitutional analysis of whether the state law runs afoul of restrictions on states’ foreign policy powers. These limits are threefold— Article I, Section 10, preemption, and the dormant Commerce Clause.

This article focuses on federalism limits that only the states face and does not explore other constraints that the federal government might face, such as the First Amendment’s rights to free speech and association. The second prong is an optional, persuasive policy analysis of whether the state law makes sense based on concepts and data from economics. Applying this framework, SB 419 should fall as a matter of law and policy.