Montana Attorney General argues state’s TikTok ban doesn’t violate First Amendment

Montana Attorney General Austin Knudsen argued the recently passed law banning TikTok in Montana doesn’t impede the First Amendment or violate commerce regulations in court documents submitted last week.

In a court filing by an attorney for Knudsen in opposition to TikTok’s request for a preliminary injunction, Knudsen rejected arguments made by the social media app along with Montana TikTok users, that included the ban violating their First Amendment rights as well as placing an unfair restriction on commerce.

Senate Bill 419, sponsored by Sen. Shelley Vance, R-Belgrade, charges app stores a $10,000 fine each time a Montana-based user downloads the video-based social media app TikTok, and every day those app stores keep TikTok after that. Republican Gov. Greg Gianforte signed it into law in May, but it will not go into effect until Jan. 1, 2024. Plaintiffs, including TikTok itself, have asked a court to halt the law from going into effect while the case is being litigated.

Knudsen said SB 419 doesn’t prohibit messages, ideas and content found on TikTok, rather it “prohibits the use of a product in Montana,” and that the consumer-protection interest in the ban is “unrelated to the suppression of free expression.”

“Rather, the ‘perceived evil’ SB419 targets is TikTok’s data harvesting and sharing with the C.C.P.(Chinese Communist Party)—harms that would justify regulating TikTok were it a video app, dating app, or gaming app,” the filing read.

Knudsen pointed to a “tsunami of reporting about TikTok’s data-harvesting and storing practices” as a reason why the ban falls under the state’s consumer-protection police powers, citing multiple stories including a Forbes article where TikTok parent company ByteDance, based in China, admitted to using TikTok to spy on journalists to find the source of an internal leak.

TikTok has said it does not store U.S. user data in China, but rather in data centers in the U.S. and Singapore, meaning it would be safe from potential seizure by the Chinese government. The social media app sued Montana arguing the ban is unconstitutional, with Montana TikTok users who filed separately joining the suit after news broke the app was financing their separate litigation.

Cases Knudsen pointed to in justifying why the ban wasn’t an impediment to the First Amendment included Arcara v. Cloud Books, Inc., where a bookstore was shut down after it hosted prostitution and other sex acts. The Supreme Court ruled the First Amendment didn’t protect the store from liability for violating prostitution laws.

Another argument Knudsen’s office made was that the restrictions are “no greater than is essential” to protecting Montanans’ data privacy. He compared it to when the U.S. Ninth Circuit Court of Appeals found a school district’s uniform policy didn’t infringe on students speech or expressive conduct.

“It’s like the school’s uniform policy—limiting Montanans’ abilities to express themselves via TikTok—but Montanans ‘may continue to express themselves through other and traditional methods of communication’ by sharing videos, memes, and every other kind of expressive content on every other internet-based video or social-media platform,” the filing read.

Knudsen also responded to claims that the TikTok ban violated the Commerce Act because Montana users claim the app is instrumental in selling products for their business, and the ban would restrict interstate commerce. Knudsen responded saying TikTok isn’t the same as their products, but a tool used to transmit information.

“The only question, then, is whether it has an indirect effect on interstate commerce that outweighs Montana’s interests in protecting user data,” the filing read.