A federal judge in Montana on Thursday blocked a state ban on TikTok from going into effect next year, at least temporarily preventing the country's first such ban on the popular video app.
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 granted a preliminary injunction to stop the TikTok ban. He said the ban on Chinese ownership enforcement likely violated the First Amendment and a clause that gives Congress the power to regulate trade with foreign nations.
“The current record leaves little doubt that the Montana Legislature and Attorney General were more interested in attacking China's apparent role in TikTok than in protecting Montana consumers,” Judge Molloy wrote in his opinion. He added that Montana's “foray into foreign affairs interprets and intrudes on current US foreign policy interests.”
Alex Haurek, a spokesperson for TikTok, said the company was “pleased that the judge struck down this unconstitutional law and that hundreds of thousands of Montanans can continue to express themselves, make a living and find a community on TikTok.”
Emilee Cantrell, a spokeswoman for the Montana Department of Justice, said Judge Molloy had “indicated several times that the analysis could change as the case progresses.” She added, “We look forward to making the full legal argument to defend the law that protects Montanans from having their data obtained and used by the Chinese Communist Party.”
TikTok, owned by Chinese company ByteDance, has been embroiled in a legal battle with Montana since state lawmakers 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 a national push to ban TikTok on government-owned devices.
TikTok, which has long said it does not share American user data with Beijing officials, called the law overly broad and unconstitutional and sought the 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 weighing a TikTok proposal that the company said would address national security concerns.
The ruling in Montana is the latest setback this year for states that are trying to regulate aspects of life online. Federal judges have temporarily blocked a California children's online privacy law, an Arkansas law that requires parental consent for minors to create some social media accounts and a Texas law that restricts access to pornography online. The Supreme Court is expected to soon consider legal challenges to state laws governing how social networks moderate content.
While Thursday's ruling is preliminary, Jeff Kosseff, an associate professor of cybersecurity law at the Naval Academy, said the judge was 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 in the future,” he said.
Montana's law was drafted by Austin Knudsen, the state's Republican attorney general and a self-proclaimed China hawk. But legal experts anticipated the rule would have trouble holding up in court, with many saying it violates users' First Amendment rights. In 2020, federal judges blocked President Donald J. Trump's attempt to ban the app, saying the administration most likely overstepped his 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 the creators filed in the state; The two suits are now consolidated.
At the hearing, Ambika Kumar, a lawyer for the TikTok creators, said: “Our position is not that the state can never regulate anything on the Internet. Our position is that the State has completely exceeded itself.”
Montana disagreed. “There is simply no other way to ensure Montanans are safe from using TikTok other than an outright ban until it ends its ties to China,” said Christian Corrigan, the state's attorney general. He added that a blanket law on social media would not work, as “TikTok is the only app that has a connection to a hostile foreign power.”
Judge Molloy said in court that Montana could have done “many things” outside of a ban. He suggested regulations around TikTok's data collection or public service announcements starring Mr. Knudsen: “Why not have the attorney general do a public service announcement where we say we believe TikTok is affiliated to the Chinese Communist Party or the Chinese army?”
Judge Molloy called Montana's effort to protect users “paternalistic” at one point and questioned why it was the only state to pass such a ban. “Does that seem a little strange to you?” he asked her.
“Everyone else is marching, and it's like the mother is watching the parade,” he said. “There is one of the bands that passes by and a guy is out of tune and it is his son. She said, 'Look at that. The whole band is out of tune except my son.'”
Mr. Corrigan responded that “states take new types of measures all the time” and that just because a state is first “does not mean it is necessarily out of step.”
Other lawmakers in other states are likely to take note of Judge Molloy's decision.
In September, a group of 18 Republican attorneys general submitted a document supporting Montana's ban and argued that the court should deny TikTok's request for an injunction.
The group said in the filing that it had a “compelling interest” in the case, arguing that states had always had “the power to protect their citizens from deceptive and harmful business practices,” and that federal law did not prohibit states from protect its citizens. citizens of such conduct. Indiana, Arkansas and Utah filed their own lawsuits against TikTok last 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 many of us are following the case is that many other states are considering this ”.
Jordyn Holman and David McCabe contributed reports.
