Judge Says Montana’s TikTok Ban Is Obviously Unconstitutional

This wasn’t hard to predict. When Montana passed its TikTok ban in April we called it “laughably unconstitutional.” Montana’s very silly Attorney General, Austin Knudsen, who claimed to have been the driving force behind the bill, had insisted that the state would be vindicated in court. As we noted when the bill passed, his public defense of the bill was to admit that the point of the bill was to shut down content he didn’t like online, damning his own case.

So far, Knudsen has not been vindicated at all.

Federal judge Donald Molloy made the easy call that the bill is obviously unconstitutional as a suppression of 1st Amendment rights.

Plaintiffs argue SB 419’s total ban on TikTok unconstitutionally targets speech and that the law is subject to the highest level of constitutional scrutiny. 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. Like the curate’s egg, neither argument is entirely persuasive. However, because Plaintiffs have shown that SB 419 is unlikely to pass even intermediate scrutiny, it likely violates the First Amendment.

While he does not fully buy the argument of the plaintiffs (both TikTok and some TikTok users), he does not buy Knudsen’s argument at all. The argument that this is just a standard “consumer protection” bill fails, because consumer protection bills don’t target speech like this bill does:

The State’s defense of SB 419 rests on the proposition that the First Amendment is not implicated at all because the bill does not regulate speech. It argues instead that because the Legislature “may make its own reasoned judgment about what conduct is permitted or proscribed within its borders,” State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003), its TikTok ban can sit comfortably alongside its many other generally applicable consumer protection laws. The State and Amicus Virginia, (see Doc. 70), are correct that consumer protection laws “fall in an area that is traditionally within the state’s police powers to protect its own citizens.” Aguayo v. U.S. Bank, 653 F.3d 912, 917 (9th Cir. 2011). However, SB 419 is not merely a generally applicable consumer protection statute without any First Amendment implications

Montana relied heavily on Arcara v. Cloud Books. That case involved an adult bookstore that also engaged in prostitution. The government shut the store down as a “public nuisance” based on the prostitution. The book store argued that by shutting down the bookstore it was an attack on protected speech. The Supreme Court noted that the bookstore was not shut down over speech, but over the prostitution.

Judge Molloy points out just how different this case is:

First, SB 419 is not a generally applicable law like the one in Arcara, which authorized the closure of any building found to be a public health nuisance. Unlike that law, SB 419 targets one entity, which on its face makes it not generally applicable. Second, the Court in Arcara determined that the conduct there was “nonspeech,” subject to New York’s general regulation, and that it had “absolutely no connection to any expressive activity.” 478 U.S. at 707 n.3. For both groups of Plaintiffs, SB 419 implicates traditional First Amendment speech. It does so for User Plaintiffs by banning a “means of expression” used by over 300,000 Montanans. See Minneapolis Star & Trib. Co. v. Minn. Com’r of Revenue, 460 U.S. 575, 582–83 (1983) (holding a statute singling out expressive activity violates the First Amendment even when it is apparently based on a nonexpressive activity). Without TikTok, User Plaintiffs are deprived of communicating by their preferred means of speech, and thus First Amendment scrutiny is appropriate.

Likewise, SB 419 implicates TikTok’s speech because the application’s decisions related to how it selects, curates, and arranges content are also protected by the First Amendment. SB 419 prevents the company from “the presentation of an edited compilation of speech generated by other persons . . . which, of course, fall squarely within the core of First Amendment security.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 570 (1995); see also Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) (holding that a newspaper’s moderation of third-party content is generally protected by the First Amendment). These speech concerns place SB 419 and the activity it bans squarely within the First Amendment’s protections.

Of course, just because it implicates speech does not automatically mean it violates the 1st Amendment. That’s where the question of what scrutiny level to apply comes into play. Similar to the judge in California tossing out that state’s Age Appropriate Design Code law, the court here finds that we don’t even need to explore the nuances of strict scrutiny vs. intermediate, because the law doesn’t even pass intermediate scrutiny (with its much lower bar).

With intermediate scrutiny, you need to show that there is an “important government interest” to put in place this law and that it “not burden substantially more speech than necessary to further those interests.” The law fails that.

Conceding for the sake of this argument that the State may have at least an important state interest in SB 419, the law is not narrowly tailored, nor does it leave open any alternative channels for targeted communication of information. SB 419 does not pass intermediate scrutiny review

Of course, getting rid of the “for the sake of this argument” part, the court also finds no real important state interest here:

The State attempts to persuade that its actual interest in passing this bill is consumer protection. However, it has yet to provide any evidence to support that argument. See contra Jacobs, 526 F.3d at 435 (noting that sworn affidavits from government officials are useful in demonstrating a government’s purpose in passing a bill). Because Montana does not have an important government interest in regulating foreign affairs, and because the State has not demonstrated the Legislature’s consumer protection interest in passing the bill, it is likely that Plaintiffs will succeed in showing SB 419 does not advance an important government interest as stated in the Act’s preamble and text.

So, it fails the first part of intermediate scrutiny. It fails the second part too:

The State claims that SB 419 is narrowly tailored and meets this standard. SB 419 only bans TikTok, not the other major social media applications, because of its grave risk to Montanans, e.g., Chinese spying on Montanans. In doing so, it argues, SB 419 “eliminate[d] the exact source of evil it sought to remedy.” City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984). Plaintiffs argue that SB 419 burdens substantially more speech than is necessary to fulfill even its purported interests. Because the Legislature used an axe to solve its professed concerns when it should have used a constitutional scalpel, Plaintiffs are correct.

First, SB 419 “burden[s] substantially more speech than is necessary.” Ward, 491 U.S. at 799. This is apparent on the law’s face. SB 419 completely bans TikTok in Montana. It does not limit the application in a targeted way with the purpose of attacking the perceived Chinese problem. At the October 12 hearing, the State argued that the law is narrowly tailored because it is the only way the Legislature could have stopped the purportedly improper behavior it wanted to prevent. In its brief, the State cites a March 2023 article from Reuters reporting on a group of 45 United States attorneys general who moved to file in a Tennessee state court as amici curiae to argue that TikTok has deceptively and improperly ignored requests to produce internal company documents in response to state investigations. (See Doc. 51 at 27 n.14 (citing David Shepardson, State AGs demand TikTok comply with US consumer protection investigations, Reuters,https://perma.cc/4DR9-LQ3M (Mar. 6, 2023)).) The State suggests that any legislation less stringent than an all-out ban would not be properly tailored when the company has already displayed a public willingness to disobey state regulatory requests. However, it is unclear how this single investigation into TikTok warrants a complete ban on the application.

Even worse, the state presented no evidence that banning TikTok will actually protect kids in Montana. It notes that the same data collection issues it claims TikTok uses to harm kids happens on other social media, and if the concern is “China” getting data on kids, they can still buy it via data brokers.

Second, it is likely that SB 419 is not narrowly tailored because the State has not provided any evidence that the ban “will in fact alleviate these harms in a direct and material way.” Turner Broadcast Sys., 512 U.S. at 664. In the first instance, it is well-established that other social media companies, such as Meta, collect similar data as TikTok, and sell that data to undisclosed third parties, which harms consumers. See, e.g., In Re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 596 (9th Cir. 2020); In Re Facebook, Inc. Consumer Priv. User Profile Litig., 2021 WL 10282172, at *4 (9th Cir. Oc.t 11, 2021). Additionally, there are many ways in which a foreign adversary, like China, could gather data from Montanans. For example, it could do so by “purchasing information from data brokers (a practice in which U.S. intelligence agencies also engage), conducting open-source intelligence gathering, and hacking operations like China’s reported hack of the U.S. Office of Personnel Management.” (Doc. 15 at ¶ 13.) Thus, it is not clear how SB 419 will alleviate the potential harm of protecting Montanans from China’s purported evils.

And, although the State does not explore this argument in any detail in its briefing, SB 419 does not reasonably prevent minors from accessing dangerous content on the Internet. It is not hard to imagine how a minor may access dangerous content on the Internet, or on other social media platforms, even if TikTok is banned. This “raises serious doubts about whether the government is in fact pursuing” consumer protection interests, Brown, 564 U.S. at 802 (analyzing a law under a strict scrutiny analysis), or targeting the application simply because of its connection to China.

The court also finds that the Montana law is almost certainly pre-empted by federal law. Once again, Knudsen’s own grandstanding about the bill helps to sink the bill. He went on and on about how he was fighting evil Communist China with this bill, and the judge notes that that’s kind of a federal issue, not a state issue, and federal law preempts the states from getting involved in foreign affairs like this.

The bill’s legislative history further supports this conclusion. For example, in the first Montana House of Representatives hearing on the bill, Defendant Attorney General Knudsen explained: “TikTok is spying on Americans, period. TikTok is a tool of the Chinese Communist Party. It is owned by a Chinese company, and under China law, if you are based in China, you will cooperate with the Chinese Communist Party, period.” (Doc. 13-2 at 5.) He further explained his belief that China sees “a war with the United States as inevitable, and [China is] using TikTok as an initial salvo in that war.” (Id. at 6.) This, he explains, is a reason the bill is necessary.

[….]

The Legislature may have set out to protect Montanans from an allegedly grave threat. But “however laudable it may be, [it] is not an area of traditional state responsibility.”

The court also finds that the dormant commerce clause (which limits the ability of states to regulate out of state commerce issues) likely preempts this law as well:

While the State argues that the law’s local benefits are significant, and they may be, it has not provided any evidentiary support for those benefits. Thus, Plaintiffs have demonstrated a likelihood that SB 419 puts a burden on interstate commerce that exceeds its local benefits.

And thus the law is enjoined. It is likely that Knudsen will appeal, because this whole thing is just a grandstanding ploy to get his name and face in the news more often anyway, so why stop now?

But, once again, we see a state trying to pass unconstitutional suppressions of free speech rights. As we’ve noted, this is neither a red state nor a blue state issue, as basically all states seem to be engaging in such censorial behavior. Thankfully, many (though not all) of the courts seem to be recognizing this nonsense for what it is and rejecting these laws.