Mont. TikTok Ban ‘Wields a Sledgehammer’ to First Amendment, Says Injunction Motion

The plaintiffs in the two consolidated cases against SB-419, Montana’s statewide TikTok ban, filed nearly simultaneous motions Thursday in U.S. District Court for Montana in Missoula for preliminary injunctions to block Attorney General Austin Knudsen (R) from enforcing the measure when it takes effect Jan. 1. U.S. District Judge Donald Molloy’s June 28 consolidation order (see 2306290041) designated the May 17 complaint (docket 9:23-cv-00056) filed by six Montana TikTok influencers and users as the lead case, and the May 22 complaint filed by TikTok (docket 9:23-cv-00061) as the "member" case.

When another state passed a “less-sweeping” social media ban, the U.S. Supreme Court, in its 2017 decision in Packingham v. North Carolina, “invalidated it without dissent” as an unprecedented attack on First Amendment freedoms, said the lead-case plaintiffs’ memorandum of law in support of their motion. SB-419 “is more pernicious,” it said. Knudsen himself has “expressed doubts” about SB-419's constitutionality, it said: “With good reason: SB 419 violates the First Amendment.” The plaintiffs bring their motion “to avert the irreparable harm they will suffer” from SB-419’s “impending enforcement,” it said.

SB-419 “purports to safeguard national security and protect children from dangerous content,” said the lead-case memorandum. Montana has no authority to enact laws advancing its own view of U.S. foreign policy or national security interests, it said. Nor may the state “ban an entire medium based on perceptions that some speech shared through that medium is unsuitable for children,” it said. Even if Montana “could regulate any speech” that users share through TikTok, SB-419 “wields a sledgehammer when the First Amendment requires a scalpel,” it said.

The law abounds with “constitutional defects” that are “extraordinary,” said the lead-case memorandum. In addition to violating the First Amendment, SB-419 violates the Foreign Affairs Doctrine and Commerce Clause, it said. It’s also preempted by the International Emergency Economic Powers Act and Section 721 of the Defense Production Act, it said. Those statutes authorize the president and the Committee on Foreign Investment in the U.S., not the states, “to address putative national security risks posed by foreign economic actors,” it said.

SCOTUS for more than 25 years has recognized the “vital role” that online platforms play in a democratic society, said TikTok’s member-case brief in support of its own motion. “Ignoring the central importance of these online communities in modern life,” Montana enacted its TikTok ban, “forbidding all communication on this widely used forum” statewide, it said. In light of SB-419's “constitutional infirmities,” enforcement of the ban “should be preliminarily enjoined” in advance of its Jan. 1 effective date, it said.

TikTok “easily meets the requirements” for a preliminary injunction, said its memorandum. It’s “overwhelmingly likely” to succeed on the merits of its claims, it said. Enforcement of SB-419, if not enjoined, “will inflict severe and irreparable harm” by restricting its speech and “causing irreversible harm to its business,” it said. The balance of the equities and public interest “weigh decisively in favor of preserving the status quo during the pendency of litigation,” it said. That would allow TikTok and all Montanans who use the app “to continue to exercise their First Amendment rights,” preventing the state “from exceeding its constitutional authority,” it said.