How the block on Montana’s TikTok ban could thwart other proposals

The defeat of Montana’s TikTok ban in federal court could deter other lawmakers from moving ahead with efforts to block the popular video-sharing app facing bipartisan backlash.

There was mounting scrutiny over TikTok before Montana Gov. Greg Gianforte (R) signed a law in May banning the app. House lawmakers grilled TikTok’s CEO in March as momentum and pressure built to ban the app. Dozens of states and the federal government followed up with narrower bans, restricting the TikTok from government-owned devices.

But a district judge’s ruling that Montana’s law violates users’ free speech could be a warning sign for state legislatures and Congress to avoid running into the same roadblock. Experts had already warned lawmakers that such bans would be difficult or nearly impossible to enforce.

Sarah Kreps, director of the Tech Policy Institute in the Cornell Brooks School of Public Policy, said the ruling feels like it may be a “final nail in the coffin” of proposals aimed at banning something as popular as TikTok.

“The judicial pushback against TikTok was always going to be an uphill battle, because of the constitutional questions about free speech, and Montana was a testbed for whether a ban could actually work,” Kreps said.

“What this shows is that courts take free speech very seriously,” she added.

When Montana became the first state to pass a law seeking to fully ban TikTok in May, it drew immediate pushback both from the company and civil rights groups that the law infringed on users’ free speech rights.

District Judge Donald Molloy agreed in his ruling last week, writing that “while there may be a public interest in protecting Montana consumers, the State has not shown how this TikTok bill does that.”

“Instead, [the bill] oversteps state power and infringes on the Constitutional rights of users and businesses,” he wrote.

Molloy blocked Montana’s TikTok ban, which was set to take effect in January, through a preliminary injunction.

“This ruling is very significant,” said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union (ACLU).

She said the ruling will make lawmakers looking to “directly or indirectly” ban TikTok “think twice about the constitutionality of what they’re doing.”

Carl Szabo, vice president and general counsel at the tech industry group NetChoice, called it a “huge red light to every other state considering such action.”

“Not just because of it being bad policy, but because it is never going to take effect. And all it will do is force the state to waste taxpayer resources fighting legislation that lawmakers know to be unconstitutional,” he said.

TikTok is among the association members at NetChoice.

How does this impact other potential TikTok bans?

Lawmakers have proposed versions of bills that sought to ban TikTok since the start of the year due to concerns about ByteDance, its China-based parent company.

Congressional critics of TikTok argue that the app threatens national security by giving a Chinese company access to sensitive personal data from American users, which could then be shared with the Chinese government. TikTok has pushed back on such allegations.

House and Senate Republicans introduced bills that aimed to ban the use of TikTok broadly. Those efforts were met with criticism from Democrats, but a bipartisan proposal was introduced in March that seemingly had a better chance at gaining broad coalition of support.

Sens. Mark Warner (D-Va.) and John Thune (R-S.D.) introduced the RESTRICT Act, which would give the Commerce Department the ability to identify and mitigate risks posed by technology linked to foreign adversaries, including China. The bill would ultimately give the administration the power to ban such apps, as well.

Warner spokesperson Rachel Cohen said the ruling “just demonstrates the need for a comprehensive, national solution to address foreign technology threats that won’t be struck down by the courts,” Cohen said in an email.

Leventoff, though, said the RESTRICT Act would likely face a similar fate in court if used to ban TikTok.

“If the secretary of Commerce uses that extremely broad new authority to ban TikTok, a court would find that ban unconstitutional,” she said.

“That First Amendment analysis is going to happen, no matter what avenue the government uses to ban TikTok,” she added.

Szabo noted that when former President Trump tried to ban TikTok through an executive order in 2020 he “collided with the same limitation — the First Amendment.”

“What the judge made clear here is that just like it’s impossible to drive from New York City to London, it’s impossible to enact this type of ban on speech without violating the First Amendment,” Szabo said.

The state of Montana has not said whether it will attempt to appeal the decision to a federal appeals court.

Emily Cantrell, a spokesperson for Montana Attorney General Austin Knudsen (R), said “this is a preliminary matter at this point” and the state is “weighing our options.”

“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,” Cantrell said in a statement.

A TikTok spokesperson said the company is “pleased the judge rejected this unconstitutional law and hundreds of thousands of Montanans can continue to express themselves, earn a living, and find community on TikTok.”

What about TikTok bans on government devices?

Although Montana is the only state to pass a full ban on TikTok, other states and the federal government have put in place more narrow bans on the app on government-owned devices.

George Wang, staff attorney at the Knight First Amendment Institute at Columbia University, said that although the ruling is about Montana’s law, it could persuade other states considering their own bans, or even ones with narrower bans, to “drop those efforts.”

“While the ruling is specific to Montana, it’s still a serious thing that a federal court, the first federal court to consider these bans, has indicated that at least the categorical ban likely violates the First Amendment,” Wang said.

The Knight First Amendment Institute is challenging Texas’s TikTok ban on government devices on behalf of the Coalition for Independent Technology Research, citing the ban applying to faculty in the state’s public universities.

“Whether the other states or Biden administration kind of take this in remains to be seen, but it is a significant thing that the first federal court to address it has ruled the way it did,” Wang said.

The narrower bans, though, may fare better in court, given the authority governments have.

“I think that that’s a separate question, because governments can take measures more narrowly that they deem to be in the national security interest,” Kreps said.

Szabo likened the government device bans to limitations a private company has on what websites its employees can access.

“It is one thing for a business to tell its employees what they can and can’t do on the company devices. It’s a completely different thing for the government to come in and tell private citizens what they can and can’t do on their own devices,” he said.

Even if a government ban on TikTok were allowed to proceed, though, experts have pointed out technical difficulties of enforcing a ban based on loopholes that would allow users to gain access to the platform.

Kreps said that could also keep lawmakers from pushing bans forward.

“I think [it’s] worse than inaction to implement a policy that becomes farcical because no one will comply with it,” she said.

For the latest news, weather, sports, and streaming video, head to The Hill.