TikTok’s Good Week in US Courts Deals a Setback to State Curbs

A federal judge’s order blocking Montana’s first-in-the-nation TikTok ban from going into effect is the latest blow to states’ efforts to rein in the social media app owned by the China-based Bytedance Ltd.

The preliminary injunction also puts a damper on a push by Congress earlier this year to ban the app or force its sale to a US company, a campaign that was already dissipating. Digital rights groups called the state and federal drive to ban TikTok futile and a distraction.

“We see over and over again this year states passing laws that are censoring the internet, and courts rejecting those efforts,” said Adam Schwartz, privacy litigation director at the Electronic Frontier Foundation. “Hopefully decisions like the Montana one today will redirect legislators to what they should be doing, which is protecting all consumers from surveillance from technology companies.”

The court order should be a “giant red flag” for any legislator trying to ban apps or speech online, said Carl Szabo, vice president and general counsel of NetChoice, an industry group that filed an amicus brief in support of TikTok.

“There’s an important message to lawmakers that just because you don’t like something doesn’t mean you can ban it,” Szabo said. “At the end of the day, that’s a good thing for all Americans, regardless of political ideology.”

The ruling by US District Judge Donald Molloy on Thursday said the statewide ban—known as SB 419—likely violates the First Amendment, trumping the Montana attorney’s general claims that the app is used as spying tool for the Chinese Communist Party.

The judge indicated during oral arguments that the ban was overly broad. “The Legislature used an axe to solve its professed concerns when it should have used a constitutional scalpel,” Molloy’s ruling said.

The court also considered that Montana enacted a new comprehensive data privacy law, “which is a much better way to approach and address the concerns raised by the state rather than trying to ban speech,” Szabo said.

The Montana ruling comes one day day after TikTok succeeded in escaping a lawsuit from Indiana’s attorney general, who alleged the app violated state consumer protection laws. The app has been in the crosshairs of attorneys general in Utah and Arizona, whobrought similar lawsuits raising privacy and content safety concerns.

But attempts to curtail TikTok should distinguish between privacy harms and attempts to censor content online, said Kate Ruane, director of the Center for Democracy and Technology’s Free Expression Project.

“These two separate concerns are inclusive of TikTok, but not exclusive to TikTok,” she said, adding that “we should really be thinking about how we address that privacy concern globally and not with respect to one particular platform.”

Dozens of states and Congress have banned the app on government devices. Those bans don’t raise the same constitutional concerns, Szabo said. Every business has limitations on what employees can do on company devices and company time, he said.

“I draw a significant line when it goes from telling what government employees can do on government devices to telling what American citizens can do with their own lives,” Szabo of NetChoice said.

Proponents of the Montana law say the ruling isn’t the last word on how states regulate social media. The US Supreme Court this term will consider the constitutionality of laws in Texas and Florida that regulate how social media companies moderate content by treating them as “common carriers.”

All three states operated under a theory that restricting companies’ decisions about what could be on their platform wasn’t protected by the First Amendment, Ruane said.

“But what the court in in the Montana case said was, ‘Yes, it is,’” she said. “And that is going to be, I think, an important piece for the Supreme Court to consider when it starts looking at the Texas and Florida laws next year.”

Emilee Cantrell, a spokesperson for Montana attorney general Austin Knudsen, called the ruling a “preliminary matter” in a statement to Bloomberg Law.

“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,” she said.

Joel Thayer, president of the Digital Progress Institute which supported the law in an amicus brief, said there is lots of precedent for states regulating social media to protect consumers and national security. He pointed to an appeals court ruling overturning an injunction against Texas’ social media law, and past US bans on telecom equipment from China-based companies Huawei Technologies Co. and ZTE Corp.

“I would caution anyone saying, ‘Oh this one ruling means X, Y, or Z,’ because there will be a lot more lawyering and court proceedings,” Thayer said.

The case is Alario v. Knudsen, D. Mont., No. 9:23-cv-00056, 11/30/23.