NewsMontana Politics


Montana TikTok ban is likely a 'fundamental Constitutional violation'

TikTok App
Posted at 10:19 PM, Nov 30, 2023
and last updated 2023-12-01 00:22:00-05

HELENA — A federal judge in Missoula has put a hold on a Montana law that would ban the app TikTok in the state, while a lawsuit challenging the ban goes forward.

On Thursday, U.S. District Judge Donald Molloy issued a preliminary injunction, preventing Senate Bill 419 from going into effect as scheduled on January 1, 2024. In his order, Molloy said plaintiffs – including TikTok and a group of Montana-based content creators who use the app – had shown a likelihood of success on the merits of their challenge to the law.

“While there may be a public interest in protecting Montana consumers, the State has not shown how this TikTok bill does that,” he wrote. “Instead, SB 419 oversteps state power and infringes on the Constitutional rights of users and businesses.”

Molloy said the law wasn’t narrowly tailored enough to meet the required level of scrutiny – saying “the Legislature used an axe to solve its professed concerns when it should have used a constitutional scalpel.”

The ruling comes more than a month after Molloy held a hearing on the case in Missoula.

Read the Full ruling from Judge Donald W. Molloy:

SB 419 says TikTok can’t operate in Montana, and that app stores can’t offer it for download within the state’s borders. It institutes penalties of up to $10,000 for each violation, with another $10,000 each day a violation continues. Individual users would not face penalties.

Supporters of the law, including Attorney General Austin Knudsen, cited concerns that the app might expose Montanans’ data to China. TikTok is owned by ByteDance, a company headquartered in China. In recent months, Congress has probed claims that officials from the Chinese Communist Party might be able to access information on U.S. users. TikTok has denied any claims that its app puts data at risk.

Molloy said in his order that the law’s emphasis on a foreign policy issue was its “Achilles’ heel” and that the state didn’t have an important government interest in regulating foreign affairs.

“Despite the State’s attempt to defend SB 419 as a consumer protection bill, the current record leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” Molloy said. “This is especially apparent in that the same legislature enacted an entirely separate law that purports to broadly protect consumers’ digital data and privacy.”

Emilee Cantrell, a spokesperson for Attorney General Austin Knudsen, responded to the ruling in a statement Thursday.

“This is a preliminary matter at this point,” she said. “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. 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.”