A federal judge in Montana on Thursday blocked a statewide ban on TikTok from taking effect next year, at least temporarily preventing the nation’s first such ban on the video app popular.
The judge, Donald W. Molloy, said Montana could act as a leader in protecting its residents from harm but must “act within the constitutional legal context,” and he granted a preliminary injunction to end the ban on TikTok. He said banning the Chinese app most likely violated the First Amendment and a clause that gives Congress the power to regulate trade with foreign countries.
“The current record leaves no doubt that the Montana Legislature and Attorney General were more interested in targeting China’s apparent role in TikTok than in protecting Montana consumers,” Judge Molloy wrote in his notice. He added that “Montana’s foray into foreign affairs interprets and impinges on current U.S. foreign policy interests.”
Alex Haurek, a spokesperson for TikTok, said the company was “pleased that the judge threw out this unconstitutional law and that hundreds of thousands of Montanans can continue to express themselves, earn a living and find community on TikTok.” .
Emilee Cantrell, a representative for the Montana Department of Justice, said Judge Molloy had “repeatedly indicated that the analysis could change as the case progresses.” She added, “We look forward to presenting the full legal argument to defend the law that protects Montanans from having their data obtained and used by the Chinese Communist Party.” »
TikTok, which is owned by Chinese company ByteDance, has been locked in a legal battle with Montana since the state passed a bill banning the app in April. (The governor signed it in May.) Lawmakers said the ban would protect residents’ data from the Chinese government, significantly intensifying the nationwide campaign to bar government-owned devices from accessing TikTok.
TikTok, which has long said it does not share U.S. user data with officials in Beijing, called the law too broad and unconstitutional and sought a preliminary injunction. The fight has been closely watched by free speech advocates, Big Tech groups and policymakers seeking to restrict enforcement in other states and nationally. The Biden administration has been reviewing a proposal from TikTok that the company said would address national security concerns.
The Montana ruling marks the latest setback this year for states trying to regulate aspects of life online. Federal judges temporarily blocked a California children’s online privacy law, an Arkansas law requiring minors’ parental consent to create certain social media accounts and a Texas law restricting access to online pornography . The Supreme Court is expected to soon consider legal challenges to state laws governing how social media moderates content.
Although Thursday’s ruling is preliminary, Jeff Kosseff, an associate professor of cybersecurity law at the Naval Academy, said the judge is unlikely to uphold Montana’s ban later.
“I think given the judge’s reasoning, it makes me seriously doubt that there will be any other outcome down the road,” he said.
Montana’s law was authored by Austin Knudsen, the state’s Republican attorney general and self-described China hawk. But legal experts predicted the rule would struggle to hold up in court, with many arguing it violates users’ First Amendment rights. In 2020, federal judges blocked President Donald J. Trump’s attempt to ban the app, saying the administration had most likely overstepped its authority by invoking emergency economic powers.
At a hearing before Judge Molloy in October, TikTok said Montana could have enacted a data privacy law or taken other steps to address its concerns.
TikTok sued Montana and funded a separate lawsuit that creators filed in the state; both lawsuits are now consolidated.
At the hearing, Ambika Kumar, a lawyer for the TikTok creators, said: “Our position is not that the state will never be able to regulate anything on the Internet. “Our position is that the state has completely overstepped the mark. »
Montana disagreed. “There is simply no other way to ensure Montanans are safe from using TikTok other than a complete ban until the company ends its ties to China,” he said. said Christian Corrigan, state solicitor general. He added that a blanket law on social media would not work, because “TikTok is the only app that has a connection to a hostile foreign power.”
Judge Molloy said in court that Montana could have done “a lot of things” short of a ban. He suggested regulations around TikTok’s data collection or public service announcements featuring Mr. Knudsen: “Why not ask the attorney general to make a public service announcement saying that we believe TikTok is affiliated with the Chinese Communist Party or the Chinese military?
Judge Molloy at one point called Montana’s efforts to protect users “paternalistic” and questioned why it was the only state to adopt such a ban. “Does that seem a little strange to you?” I asked.
“Everyone’s walking, and it’s kind of like the mom watching the parade,” he said. “There’s one of the groups passing by and a guy is out of step and it’s his son. She said, “Look at this. The whole group is out of phase, except my son.
Mr. Corrigan responded that “states are constantly taking new types of actions” and that just because a state is first “doesn’t necessarily mean it’s out of step.”
Judge Molloy’s decision will likely be considered by other lawmakers in other states.
In September, a group of 18 Republican attorneys general filed a brief supporting Montana’s ban and argued that the court should deny TikTok’s request for an injunction.
The group said in its filing that it had a “compelling interest” in the case, arguing that states have always held “the authority to protect their citizens from deceptive and harmful business practices” and that federal law does not prohibit not up to States to protect their citizens. citizens of such conduct. Indiana, Arkansas and Utah have all filed their own lawsuits against TikTok in the past year.
“In my opinion,” Ms. Krishnan said, “there is no doubt that the ban is unconstitutional and should be overturned, but one of the reasons so many of us are following this case is because many other states are interested in it. »
Jordan Holman And David McCabe reports contributed.
