Judge Halts Montana's First Amendment-Violating TikTok Ban

The ban, scheduled to take effect on January 1, is likely unconstitutional in multiple ways, the judge held.

A TikTok ban in Montana is likely unconstitutional, a federal judge ruled on Thursday.

Judge Donald Molloy, with the U.S. District Court for the District of Montana, issued a temporary halt to enforcing the ban. It was scheduled to take effect on January 1, 2024, and would have meant $10,000 penalties per day for app stores or TikTok "each time that a user accesses TikTok, is offered the ability to access TikTok, or is offered the ability to download TikTok."

The ruling "is a welcome victory in the face of a relentless and illiberal campaign against the First Amendment and the Internet," said Ari Cohn, free speech counsel with TechFreedom. "Wholesale bans on speech-enabling platforms are an affront to the First Amendment, and it is deeply troubling that so many have cheered them on based on panic, fear, or a general disdain for the platform."

Montana's TikTok ban (SB 419) was signed into law by Montana Gov. Greg Gianforte last May, calling it a measure "to protect Montanans' personal and private data from the Chinese Communist Party." The move came amidst a flurry of official paranoia—and propaganda—about how the app, with its Chinese parent company, could be a threat to national security, personal privacy, and America's youth.

TikTok creators and TikTok itself sued, arguing that the ban was unconstitutional. The two suits were since consolidated.

On Thursday, Molloy granted TikTok's and the TikTok users' motions for a preliminary injunction, forbidding the state from enforcing the law as the legal challenge plays out.

TikTok and the group of users behind the lawsuit said the ban violates the First Amendment and the Commerce Clause and is preempted by national security law. They "have demonstrated a likelihood to succeed on the merits," wrote Molloy in his opinion, noting that "SB 419 bans TikTok outright and, in doing so, it limits constitutionally protected First Amendment speech."

Molloy expressed a healthy skepticism about the state's counterarguments. "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," the judge wrote. And even if it could do that, the ban "does not limit the application in a targeted way with the purpose of attacking the perceived Chinese problem."

"Additionally, there are many ways in which a foreign adversary, like China, could gather data from Montanans," including purchasing it from data brokers, open-source intelligence gathering, and hacking, Molloy pointed out. "Thus, it is not clear how SB 419 will alleviate the potential harm of protecting Montanans from China's purported evils."

And if the clear goal of the legislation is foreign affairs, we have other problems, the judge explained. "Montana's foray into foreign affairs interprets the United States' current foreign policy interests and intrudes on them. Because it does so, SB 419 is likely preempted" by federal law.

Montana leaders may have hoped to be ahead of the curb with the TikTok ban, as both state and federal lawmakers contemplate similar actions. But it seems like all they did was get an early jump on being smacked down in court and another reminder that the First Amendment still matters, no matter how much moral panic you invoke.