The Montana TikTok Decision Clarifies Key Issues

The year 2023 has been a rough year for TikTok, but it’s ending on a high note. Late in November, a federal district court blocked Montana’s effort to ban the social media platform in the state. As I (and others) predicted when the bill passed this spring, the court found that the law likely violates the First Amendment and suggested the state impermissibly intruded on the federal government’s power to regulate foreign affairs. While the ruling is merely a preliminary injunction pending trial, the decision cleared much of the underbrush in the TikTok debate and clarified the glaring free speech concerns with this popular but unconstitutional proposal.

Absent the court’s injunction, SB 419 was scheduled to take effect on January 1, 2024. The law prevents TikTok from operating within the territorial jurisdiction of Montana and prohibits mobile app stores from making the service available for download, on penalty of fines of $10,000 per day per violation. (Notably, users of TikTok are expressly excluded from the ban.) The ban would not take effect if TikTok is sold to a non-Chinese company before the end of the year—a detail that turned out to be important to the court’s decision. The ban was challenged by TikTok and several Montana residents who use the app. These plaintiffs sought a preliminary injunction to prevent the law from taking effect pending trial, which the court granted.

Echoing many TikTok ban proponents, Montana argued that the ban is a general consumer protection law without speech implications. It relied heavily on Arcara v. Cloud Books, a Supreme Court decision allowing New York to shut down a bookstore that was used to solicit prostitution, despite the incidental effect on speech interests. But the court correctly distinguished that case, finding that the anti-prostitution ordinance was a generally applicable law regulating non-expressive activity. By comparison, Montana’s ban focused solely on TikTok and expressly banned a means of expression. New York’s law did not focus on Cloud Books or bookstores in general but any place where prostitution occurred.

Importantly, the court highlighted TikTok’s First Amendment interest in “decisions related to how it selects, curates, and arranges content.” This right of editorial control, which the Supreme Court recognized in Miami Herald v. Tornillo, plays an important role in other platform regulations, such as efforts by Texas and Florida to mandate inclusion of conservative viewpoints. As the Supreme Court takes up those cases this term, the Montana decision is a reminder of the platforms’ own speech rights.

Once the federal district court found the First Amendment applicable, Montana’s chances were slim. To satisfy intermediate scrutiny, Montana must show that its law furthers an important state interest unrelated to speech, that it doesn’t burden significantly more speech than necessary to further that interest, and that it leaves open ample channels for communication. The court found Montana failed all three prongs. Montana failed to provide evidence of its ostensible goal to protect consumers from TikTok’s allegedly harmful data practices. But even if it did, a TikTok ban is both over- and underinclusive: It blocks significant speech on the platform that has no intelligence value to China while leaving China free to harvest consumer information from other sources, including purchasing from other social media companies.

And significantly, the court rejected Montana’s argument that consumer speech is not chilled as long as other social media platforms remain available. Plaintiffs showed that TikTok was a more effective means of communication than rival platforms, and the state failed to rebut this evidence. This is unsurprising: The government could hardly shut down a newspaper with the excuse that handbills and bullhorns remained available for interested speakers to disseminate their messages.

Interestingly, the court also found Montana improperly interfered with foreign affairs. Generally, states are prohibited from interfering with American foreign policy, which is under the federal government’s purview. Montana denied that its purpose was to influence the behavior of the Chinese government, but this denial was belied by the act’s preamble and its extensive legislative history, which repeatedly highlighted the purported threat of Chinese “corporate and international espionage.” This potentially interferes with the Biden administration’s active efforts to influence the relationship between TikTok and the Chinese government. The court effectively held that even if a ban were appropriate, state government is not the right vehicle to present it.

The court’s assessment clarifies the key issues in the case and dismisses several red herrings. It also helps sharpen policymakers’ focus on the right and wrong ways to address concerns about TikTok. Setting bluster aside, Montana and other TikTok critics are not wrong that China presents a geopolitical threat to America, and it may use TikTok to further its objectives. But we should debate nuanced solutions that address specific, articulable problems without jeopardizing the speech rights of millions of Americans.