Montana appeals TikTok ban, saying consumer protection outweighs First Amendment worries

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In this photo illustration, the TikTok app is displayed on an Apple iPhone on Aug. 7, 2020 in Washington, D.C. (Photo Illustration by Drew Angerer | Getty Images)

The State of Montana filed its opening brief with the U.S. 9^th Circuit Court of Appeals Friday in its appeal of a preliminary injunction prohibiting the state from enforcing its ban on TikTok, contending that the state’s consumer protection interests outweigh First Amendment concerns that the lower court used as a partial basis to block the law.

The state’s 71-page appeal of a federal district court’s order from last year marks the first step toward having a final court decision on whether states are able to ban TikTok, or other social media companies, as the federal government scrutinizes the China-based company and whether it is harvesting the data of Americans and sharing it with the government of a foreign adversary.

U.S. District Court of Montana Judge Donald Molloy in November issued the injunction, saying the plaintiffs – a group of content creators and TikTok itself – made better arguments than the state and were likely to prevail in their contention that Senate Bill 419 violates the First Amendment and both the Supremacy and Commerce clauses of the U.S. Constitution.

Molloy wrote that the bill explicitly banned TikTok because of its ties to China and said that at worst, “it is reflective of the pervasive undertone of anti-Chinese sentiment that permeates the State’s case and the instant legislation.”

Molloy’s injunction prevented the ban on TikTok in Montana from taking effect on Jan. 1, which the plaintiffs at the time said was a victory both for the company and for the hundreds of thousands of TikTok users in Montana.

Molloy found that the First Amendment rights of both the creators and the company could be violated by the law by suppressing the creators’ preferred means of speech and the company’s ability to present the speech of individuals.

He also said that Montana was exercising a foreign policy decision that should be reserved for the federal government, that the bill was not narrowly tailored to serve a state interest, and that the bill likely violated both the Commerce Clause and Defense Production Act because it got in the middle of negotiations between the government and TikTok and inhibited China’s ability to participate in U.S. commerce.

“SB 419 violates the Constitution in more ways than one, thus the balance of equities ‘tips sharply’ in plaintiffs’ favor. While there may be a public interest in protecting Montana consumers, the State has not shown how this TikTok bill does this,” Molloy wrote. “Instead, SB 419 oversteps state power and infringes on the Constitutional rights of users and businesses. In conclusion, the balance of equities and the public interest weigh in plaintiffs’ favor.”

State contends that judge wrongfully discounted consumer protection interests

The bulk of the state’s appeal brief to the 9^th Circuit surrounds the contention that Montana’s primary purpose for the Republican supermajority Legislature’s crafting of SB 419, with support from Attorney General Austin Knudsen and Gov. Greg Gianforte, was to protect children’s’ privacy and to prevent them from seeing illegal content and potentially having their data harvested and used by the Chinese government.

The brief cites several news reports published during the past few years about both the federal government’s investigations into TikTok and allegations made in lawsuits and leaked conversations that TikTok’s parent company, ByteDance, was indeed utilizing data the app collected from Americans as reason to be the first state to attempt to regulate TikTok.

“The tsunami of reporting about TikTok’s data-harvesting and storing practices amply justifies SB419 as a proper exercise of Montana’s consumer protection police powers,” the states attorneys said in the appeal brief.

In his district court order, Molloy said the record showed there was “little doubt that Montana’s legislature and Attorney General were more interested in China’s ostensible role in TikTok than with protecting Montana consumers.”

In the appeal, the state’s lawyers said Molloy “found pretext lurking behind every order” and had assumed that because the bill mentioned China, as did the legislative record and comments made by Knudsen, that the bill’s purpose was to regulate national security or foreign affairs.

Montana Republican Gov. Greg Gianforte signs Senate Bill 419, which bans TikTok in Montana, on Wednesday, May 17, 2023. (Handout photo)

The state said Molloy did not properly account for the bill’s preamble, which has a clause identifying the consumer protection intent, and that he outright rejected the assertion the bill was only about consumer protection.

On the First Amendment part of the suit, the appeal brief likens the TikTok case to another that surrounded school uniforms in which a court upheld the uniform policy because there were other methods by which students could express themselves beyond their school clothing.

“SB419 is like the school-uniform policy in Jacobs-it regulates one channel of internet expression but leaves all others untouched,” the brief says.

The state argues that banning TikTok in Montana still allows for several other avenues for the creator plaintiffs to express themselves and, in some cases, financially support themselves.

The state’s attorneys argue the TikTok ban “fits comfortably within Montana’s traditional police powers” in part because the state claims “Chinese Communist Party” members have super-user access to access any data from TikTok they would like without needing permission from the company.

“No other social media app conditions its use on making Montanans’ digital privacy subject to data harvesting with at-will CCP access. In this respect, TikTok stands alone,” the brief says. “SB419’s targeted regulation singles out TikTok for its unique data-harvesting practices, not for any expressive activity.”

The state argues that if it did not have the ability to regulate data-harvesting by a foreign adversary, it would also be powerless to regulate other platforms – the state uses a cancer-causing radio and sports betting apps as an example – that could also be harmful.

“The targeted harms—preventing cancer, illegal gambling, or data-gathering by a hostile foreign state—are inherently nonexpressive and thus subject to Montana’s plenary policy power,” the brief says. “Overlaying them with expressive conduct—communications or instructive videos—doesn’t change that calculus.”

The state also argues that since the ban on TikTok would only apply to companies that host the app in their stores, and not an individual using TikTok within Montana’s borders, that the creators’ First Amendment rights are not at issue because the ban is not being enforced against them.

And it argues that for TikTok, the ban does not exercise any editorial control or judgement over the company and thus does not step on the company’s First Amendment rights to editorial control and judgment.

“Nothing in the record suggests that SB419 singles out TikTok as a pretext to suppress its First Amendment protected activities. Rather, the concerns animating SB419—concerns shared across the political spectrum, across state and federal government agencies, across state lines, and across the pond—were TikTok’s data-harvesting practices and ties to the CCP,” the brief says.

No violations of interstate commerce, Defense Production Act, state argues

The appeal brief says since negotiations between the federal government and TikTok involving the Defense Production Act are ongoing but under seal, there is no way that the bill could interfere with the negotiations, so there can be no conflict with the DPA. Regarding the Commerce Clause, the state argues that the only reason Molloy found a likely violation was because the state offered only news stories, not “evidentiary support,” as to why interstate commerce would not be affected by the ban.

The state also contends that Molloy looked too closely into comments made by legislators and Knudsen surrounding the bill, many of which were focused on China and allegations the party is actually operating the company, to make his determination on the intent of the state in passing the ban.

The state’s attorneys say that Molloy flipped the burden of proof at the preliminary injunction stage from the plaintiffs to the state by requiring the state to prove its consumer protection interests beyond the news stories cited about allegations of data harvesting, and took TikTok’s word that it was not harvesting data.

“A few statements at a legislative hearing and the text of the law’s preamble aren’t’ the kind of state intrusion on foreign affairs sufficient to subject SB419 to any field-preemption component of the foreign affairs doctrine,” the brief says.

Finally, the state argues that neither the creators nor TikTok can show they will suffer irreparable economic harms that outweigh the state’s consumer protection interests.

“The concerns with TikTok are well documented at both the state and federal level, Democrat and Republican,” the filing says. “SB419, therefore, furthers the public interest because it protects the public from the harms inseparable from TikTok’s operation.”

Now that the state has filed its opening brief, the consolidated plaintiffs in the case will have to file their answer by April 29, after which the state could have 21 days to issue a reply brief if it chooses.

Meanwhile, as the case in Molloy’s court proceeds, the two sides remain at odds with one another about what should be allowed in discovery after the state requested additional discovery, claiming TikTok has not given up enough information about its operations, while the plaintiffs contend the request is overly vague and should be limited to certain topics previously identified.