Court Should ‘Enjoin Enforcement’ of Mont. TikTok Ban, Say Plaintiffs

Unless the court intervenes, Montana, in less than four months, “will shutter a forum for expression used by thousands of its residents,” said the plaintiffs’ consolidated reply Friday (docket 9:23-cv-00056) in U.S. District Court for Montana in Missoula in support of their motions to block enforcement of SB-419, a statewide TikTok ban, when it takes effect Jan. 1. The plaintiffs are a group of TikTok users and influencers (see 2305190035) plus TikTok itself (see 2305230053). The state characterizes its “unprecedented” ban as “a regulation of conduct,” but SB-419 “prohibits First Amendment speech,” and will bar videos created by Montanans on topics “ranging from art to politics,” the reply said. The state insists SB-419 is necessary “to address supposed national security threats,” but the federal government has the “exclusive authority” to respond to such threats, and the state offers “no credible evidence to substantiate those threats,” the reply said. Nor does the state explain why banning TikTok is necessary when “less restrictive alternatives” would address the state’s “purported concerns,” it said. For those reasons, the plaintiffs “are likely to succeed on their First Amendment claims,” it said. The plaintiffs also are likely to succeed on their preemption and Commerce Clause claims, said their reply. The ban “intrudes on the federal government’s exclusive authority over matters of foreign affairs and national security,” plus it also conflicts with two federal statutes, the Defense Production Act and the International Emergency Economic Powers Act, it said. The state’s “contrary arguments” ignore binding 9th Circuit Court of Appeals precedent and “misconstrue ongoing federal regulatory proceedings” designed to address the state’s alleged concerns, it said. SB-419 also violates the Dormant Commerce clause because it bans TikTok only so long as it’s owned by ByteDance or another foreign company, “and because it regulates a platform Montanans use to conduct worldwide commercial activity,” it said. Those are conclusions that the state “does not rebut,” it said. All the state’s merits arguments fail, and the state doesn’t dispute that the “serious harms” detailed in the plaintiffs’ opening briefs “are irreparable,” it said. The court should “enjoin enforcement” of SB-419, it said.