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Friday, March 1, 2024

Montana ban on TikTok blocked, extending critics’ losing streak

A federal judge in Montana blocked the state’s first-in-the-nation ban of TikTok on Thursday, dealing a blow to critics’ efforts to outlaw the popular video app for public use.

U.S. District Judge Donald Molloy said the ban, which was scheduled to take effect Jan. 1, “oversteps state power” and was clearly an attempt to target “China’s ostensible role in TikTok” more than an effort to protect Montana consumers.

The ban could be reinstated as part of a still-unscheduled trial that will review its legal authority. But in a preliminary injunction halting the ban filed late Thursday, Molloy said TikTok had offered “the better arguments” and “demonstrated a likelihood to succeed on the merits.”

Montana’s law, signed in May by Gov. Greg Gianforte (R), would have banned all use of the app throughout the state — a leap beyond the more limited rules, passed by more than 30 states and federal agencies, that now prohibit the app from being used on government-owned devices and networks.

The move will extend a losing streak in the courts for a set of Republican-backed efforts designed to outlaw or restrict a social media app with more than 150 million users nationwide.

Emilee Cantrell, a spokeswoman for Montana Attorney General Austin Knudsen, who drafted the law, said in a statement that the matter was still “preliminary” and that the judge had previously indicated “the analysis could change as the case proceeds and the State has the opportunity to present a full factual record.”

“We look forward to presenting the complete legal argument to defend the law that protects Montanans from the Chinese Communist Party obtaining and using their data,” Cantrell said.

Alex Haurek, a TikTok spokesman, said in a statement, “We are pleased the judge rejected this unconstitutional law and hundreds of thousands of Montanans can continue to express themselves, earn a living, and find community on TikTok.”

Montana’s leaders had argued that TikTok, which is owned by the Chinese tech giant ByteDance, could be used to spy on or indoctrinate Montanans and was therefore not constitutionally protected.

TikTok and five Montana-based TikTok creators took the state to court in May, in two lawsuits that have since been consolidated, arguing that the ban alleged wrongdoing with no evidence and violated users’ First Amendment rights. TikTok has said it does not share data with the Chinese government.

The anti-TikTok push in Montana — one of the nation’s least-populated states, with just over 1 million people — became widely watched across the country as a signal for how other bans could proceed.

Knudsen had promoted it as a high-profile example of how conservative-led states could surge past federal lawmakers to defend themselves from corporate overstep and consumer harm.

But TikTok’s supporters said the ban unfairly targeted a single company for political retribution and failed to set industry-wide rules that would govern all social media companies, not just TikTok.

The TikTok creators’ lawyers had also argued in their complaint that the ban attempted “to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress.”

Molloy’s preliminary injunction expressed support for that idea, saying the state had, “in showing its foreign affairs hand … identified the Achilles’ heel” of the law.

Molloy’s 48-page injunction said the ban “is unlikely to pass even intermediate scrutiny” and probably violates the First Amendment because it bans “a ‘means of expression’ used by over 300,000 Montanans.”

The state had argued that the ban should not be blocked by First Amendment concerns because it governed company conduct, with lawyers comparing it to a hypothetical ban against “a cancer-causing radio.” Molloy said the state’s “analogy is not persuasive.”

TikTok’s critics have argued that a ban does not violate the First Amendment because users can still speak on other platforms. But Molloy rejected that argument by saying the ban would deprive users of “communicating by their preferred means of speech,” and by arguing that any regulation of speech should use a more limited and well-defined “constitutional scalpel.”

Molloy also identified what he said were other failings in the law, including that the state had offered no evidence of Chinese interference, that it put a burden on interstate commerce and that it conflicted with a federal provision against state laws that affect foreign policy. The law, he wrote, “violates the Constitution in more ways than one.”

Carl Tobias, a professor at the University of Richmond’s law school, said Molloy’s ruling offers a clear indication of how he will oversee the full trial, and that he expects the judge to issue a permanent injunction unless Montana can reveal more persuasive evidence.

“Maybe they could persuade him, but it looks unlikely,” Tobias said of the state’s attorneys. “He clearly says there wasn’t much evidence there, and a lot of the evidence cuts against Montana.”

Civil liberties groups celebrated the injunction, including the Electronic Frontier Foundation, a tech-rights group that had filed an amicus brief supporting TikTok in the case.

David Greene, EFF’s director of civil liberties, said, “Many Montanans use TikTok to communicate with local and global audiences. We are pleased that a federal judge has blocked the state from violating their rights by banning this speech platform.”

During a court hearing last month between state and company attorneys in Missoula, Molloy had expressed skepticism of what he said were the state’s “paternalistic” arguments, noting that TikTok users had given their data willingly, not had it “stolen,” and that the state had uncovered no evidence of improper data transmission or espionage.

Molloy said the state’s legal case about data privacy was “totally inconsistent” with Knudsen’s public statements about the law, which he said aimed more to “teach China a lesson” as opposed to “protect people.” He also suggested the state could have adopted narrower measures to accomplish the same goals, such as enacting data-sharing rules that could penalize any company found to have obtained a person’s data without their consent.

Molloy, who was appointed by President Bill Clinton in 1996, also questioned why Montana had been the lone government body in the United States to pass the ban, asking state Solicitor General Christian B. Corrigan, “Does that seem a little strange to you?”

The ban, which called for $10,000-a-day fines on TikTok and any other “entity” that “offered the ability” to download the app within the state, would have largely depended on Apple’s and Google’s app stores to enforce it.

But both companies said they don’t track which states users are in when they download an app and that such a system would require extremely detailed monitoring of users’ devices so that they could know when a user crossed state lines — something both companies opposed developing due, in part, to privacy concerns. A cybersecurity expert told The Washington Post in May that the law was “technically incompetent.”

The Montana injunction comes one day after a county judge in Indiana dismissed a lawsuit from that state accusing TikTok of misleading users about its data security and child safety measures, saying the state’s consumer transaction laws did not apply.

In June, a federal judge in Indianapolis, U.S. District Judge Holly Brady, had criticized the state’s case by saying “more than 90 percent” of it “was devoted to irrelevant … political posturing.” Two similar lawsuits, in Arkansas and Utah, are ongoing.

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