Texas's Ban on TikTok Use by Government Employees on Government Computers Upheld

The ban also extends to private devices that are used to access state networks.

From Coalition for Independent Technology Research v. Abbott, decided today by Judge Robert Pitman (W.D. Tex.):

Plaintiff has brought a challenge to Texas's TikTok ban [which covers Texas government employees using government-provided devices] as applied to public university faculty, who are both academics and public employees, both of which are categories that have historically received extra protection under the First Amendment….

While the Court recognizes the importance both of protecting academic freedom and supporting public employees' right to free speech, the Court finds that these important ideals do not dictate the appropriate framework for this case. Texas's TikTok ban is not a restraint on public employee speech. Even as applied to public university faculty, who are entitled to special considerations under the law, the Court finds that the ban is not a restraint on speech in a public forum, but rather a restriction on a nonpublic forum motivated by Texas's data protection concerns regarding TikTok, an app owned by a company based in China.

Texas's TikTok ban is limiting the use of an app on state-provided devices and networks, which is not a blanket prohibition. Public university faculty—and all public employees—are free to use TikTok on their personal devices (as long as such devices are not used to access state networks). Therefore, the Court disagrees with Plaintiff's characterization of the ban as falling under the category of public employee speech. The Court finds nonpublic forum analysis to be the proper framework for Plaintiff's challenge, as the ban relates to Texas's regulation of its own governmental property….

A nonpublic forum is "'not by tradition or designation a forum for public communication,'" and "the government has much more flexibility to craft rules limiting speech." Nonpublic forum analysis takes into consideration the fact that "the government, 'no less than a private owner of property,' retains the 'power to preserve the property under its control for the use to which it is lawfully dedicated.'" "The touchstone" of nonpublic forum analysis "is whether [restrictions] are reasonable in light of the purpose which the forum at issue serves." Furthermore, the restriction must not be "an effort to suppress expression merely because public officials oppose the speaker's view." …

Texas is providing a restriction on state-owned and -managed devices, which constitute property under Texas's governmental control …. Since this is "government property that has not been made a public forum, not all speech is equally situated, and the state may draw distinctions which relate to the special purpose for which the property is used." …

First, the Court notes that Texas's TikTok ban is viewpoint-neutral, as it prevents all public employees from accessing TikTok. Thus, even though the ban in effect prevents public university faculty from accessing TikTok on their state-provided and -managed devices, it applies generally to all public employees. Therefore, the Court will turn to its inquiry as to the reasonableness of the ban.

The Court finds that Texas's limited TikTok ban is "reasonable in light of the purpose which the forum at issue serves." Unlike other states' more sweeping TikTok bans of late, Texas's TikTok ban applies only to state devices and networks, leaving those impacted by the ban free to use TikTok on their personal devices on their own networks (as long as they are not used to access state networks).

While the Court agrees with Plaintiff that the ban prevents certain public university faculty from using state-provided devices and networks to research and teach about TikTok, the Court finds that the ban is a reasonable restriction on access to TikTok in light of Texas's concerns. "The Government's decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation." Here, Texas has cited data privacy concerns that have motivated its decision to limit access to TikTok on state-operated devices and networks. Texas has also limited the scope of the ban to state employees. Further, there are numerous other ways for state employees, including public university faculty members, to access TikTok, such as on their personal devices. Thus, the Court draws a distinction between Texas's TikTok ban and the law recently considered in Alario v. Knudsen, in which the United States District Court for the District of Montana preliminary enjoined Montana's total TikTok ban, which was far broader than Texas's  TikTok ban [because it applied to private property as well as government property].

{The Court notes Plaintiff's argument that Texas did not ban other social media applications. But the Court finds that this fact counsels in favor of Defendants, not Plaintiff. Texas limited the scope of its ban to one application about which it cited legitimate data security concerns.}

While Plaintiff argues that data concerns about TikTok have yet to be fully verified, Texas "need not wait until havoc is wreaked to restrict access to a nonpublic forum." …

Christina Cella and Todd A. Dickerson represent the state.