Mont. TikTok Ban Violates Constitution ‘in More Ways Than One,’ Judge Finds

Thursday evening’s opinion and order in which U.S. District Judge Donald Molloy for Montana in Missoula granted the plaintiffs in two consolidated cases (dockets 9:23-cv-00056 and 9:23-cv-00061) a preliminary injunction against Montana’s statewide TikTok ban enjoins that law, SB-419, from taking effect Jan. 1, pending a final determination on the merits of the plaintiffs' claims that the statute violates the First Amendment and the Constitution’s supremacy and commerce clauses (see 2311300072).

The plaintiffs, including multiple TikTok users, plus TikTok itself, “have shown a likelihood of success as to the merits of each claim,” and a preliminary injunction on the effective date of SB-419 is “warranted,” said Molloy’s opinion and order. He said his decision turned partly on the questionable motivations that the Montana legislature and Attorney General Austin Knudsen (R) asserted for enacting SB-419.

Despite the state’s attempt to “defend” SB-419 as a consumer protection bill, “the current record leaves little doubt” that the legislature and Knudsen “were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” said the opinion and order. In showing its “foreign affairs hand,” the state has identified SB-419's “Achilles’ heel,” it said.

Molloy’s decision is “a preliminary matter at this point,” emailed a spokesperson for the Montana AG’s office Friday. “The judge indicated several times that the analysis could change as the case proceeds” and the state “has the opportunity to present a full factual record,” said the spokesperson. “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.” TikTok didn't comment.

SB-419 "is plainly unconstitutional, and we are glad to see the court recognize this in the preliminary injunction and ensure the internet remains open and free for Americans,” said Carl Szabo, NetChoice vice president-general counsel, in a statement Friday. “The government may not block our ability to access constitutionally protected speech -- whether it is in a newspaper, on a website or via an app," said Szabo. In passing SB-419, Montana’s government "ignored the Constitution, harmed its businesses and creators, chilled innovation and disconnected Montanans," he said. "The court’s decision to block this law is correct.”

The Computer & Communications Industry Association is "encouraged that a federal judge recognized the serious First Amendment issues at the core of this case and has enjoined the Montana TikTok ban," emailed Senior Vice President and Chief of Staff Stephanie Joyce Friday. SB-419 "impacts not just internet users and TikTok, but also violates the First Amendment rights of other digital service companies like app stores that have the right to decide what content to offer their users,” she said. Though TikTok isn't a CCIA member, the association filed an amicus brief in the case Aug.10 on TikTok's behalf (see 2308110001)

The dual challenges to SB-419 come as the country's courts “grapple with the limits of government regulation of large social media companies,” said the opinion and order. The U.S. Supreme Court’s Oct. 20 order (see 2310230003) granted DOJ’s “shadow docket request” to temporarily block an injunction on officials from the White House and four federal agencies to limit the government’s ability “to communicate with social media companies about their content moderation policies,” it said. In addition, SCOTUS will consider the constitutionality of Florida and Texas laws “regulating how social media companies, like TikTok, control content posted by users on their sites” (see 2311300012), it said.

The plaintiffs argue that SB-419’s total ban on TikTok “unconstitutionally targets speech and that the law is subject to the highest level of constitutional scrutiny,” said the opinion and order. The state disagrees, arguing that to the extent SB-419 “implicates the First Amendment at all, it merely regulates expressive nonspeech conduct, thus it need only pass intermediate scrutiny,” it said.

Not 'Entirely Persuasive'

“Like the curate’s egg,” neither argument is “entirely persuasive,” said the opinion and order. But because the plaintiffs have shown that SB-419 “is unlikely to pass even intermediate scrutiny, it likely violates the First Amendment,” it said.

The state’s defense of SB-419 “rests on the proposition” that the First Amendment isn’t implicated at all because the bill doesn’t regulate speech, said the opinion and order. Montana is correct when it argues that consumer protection laws fall in an area that’s traditionally within the state's “police powers” to protect its citizens, it said. But SB-419 isn’t “merely a generally applicable consumer protection statute without any First Amendment implications,” it added.

Montana argues that SB-419 bans TikTok “because of its allegedly harmful data-harvesting practices” and that TikTok’s conduct has no protected First Amendment “expressive attributes,” said the opinion and order. The state argues that not allowing it to regulate TikTok in that way would be akin to prohibiting Montana from banning a cancer-causing radio merely because that radio also transmitted protected speech, it said.

But the state’s analogy “is not persuasive” and is “seemingly undermined” by Montana’s separate passage of SB-384, which broadly protects consumers’ digital data and privacy, said the opinion and order. SB-419 isn’t “a generally applicable law,” it said. It targets one entity, “which on its face makes it not generally applicable,” it said.

For both groups of plaintiffs challenging Montana’s TikTok ban, SB-419 “implicates traditional First Amendment speech,” said the opinion and order. It does so for the user plaintiffs by banning a means of expression used by more than 300,000 Montanans, it said. Without TikTok, the user plaintiffs “are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate,” it said.

'Squarely Within'

Likewise for plaintiff TikTok, SB-419 implicates TikTok’s speech because the platform’s decisions “related to how it selects, curates, and arranges content are also protected by the First Amendment,” said the opinion and order. SB-419 prevents TikTok from the presentation of an edited compilation of speech generated by other persons, it said. Those speech concerns place SB-419 “and the activity it bans squarely within the First Amendment’s protections,” it said.

For a preliminary injunction to issue, “it only requires determination of a likelihood of success on the merits,” said the opinion and order. It’s not necessary to “precisely categorize” SB-419 “as a content-based or content-neutral time, place, or manner restriction,” it said. That’s because it’s likely that the bill “is, at the very least, a regulation of expressive conduct that triggers intermediate scrutiny,” it said.

After demonstrating a likelihood of success on the merits of its claim, a party seeking a preliminary injunction must establish that it’s likely to suffer irreparable harm in the absence of preliminary relief, said the opinion and order. Tik Tok argues the First Amendment violation “constitutes an irreparable harm for its business,” it said. Montana responds that no First Amendment violation occurred, so no irreparable injury will take place, it said.

TikTok is “right,” said the opinion and order: “Because a fundamental constitutional violation is likely, TikTok has established the likelihood of irreparable harm.” Though TikTok’s business harms argument isn’t “entirely persuasive,” the state hasn’t “substantively rebutted it,” it said. TikTok’s business harms “are irreparable both because they are economic in nature and because they constitute a damage to goodwill of the business,” it said.

The user plaintiffs “establish a likelihood of irreparable harm” as well, said the opinion and order. In “shutting off” TikTok, the legislature has harmed the user plaintiffs’ First Amendment rights “and cut off a stream of income on which many rely,” it said.

SB-419 violates the Constitution “in more ways than one,” and so the balance of equities “tips sharply” in the plaintiffs’ favor, said the opinion and order. While there may be a public interest in protecting Montana consumers, the state hasn’t shown how SB-419 does that, it said. Instead, SB-419 “oversteps state power” and infringes on the constitutional rights of users and businesses, it said.