Mont. TikTok Ban Survives 'Intermediate Scrutiny’ Under First Amendment, Says AG

Montana’s statewide TikTok ban, SB-419, “exercises Montana’s consumer-protection power to stop a host of data-privacy and related harms by prohibiting TikTok from operating in Montana,” said Attorney General Austin Knudsen’s (R) memorandum Friday (docket 9:23-cv-00061) in U.S. District Court for Montana in Missoula in opposition to the plaintiffs’ consolidated motion for a preliminary injunction. The plaintiffs are a group of TikTok users and influencers (see 2305190035), plus TikTok itself (see 2305230053), all seeking to block Knudsen from enforcing SB-419 starting Jan. 1.

SB-419 is a “valid exercise” of the Montana legislature’s authority, so the motion “to preliminarily enjoin it must be denied,” said Knudsen’s opposition. State and federal officials “have sounded alarms over TikTok for years,” it said. Despite “growing unease” with the online platform, TikTok continues to operate across the U.S., including in Montana, it said.

“Vast parts" of the Montana code “protect Montanans from unscrupulous actors,” said Knudsen’s opposition. In light of the legislature’s interest in protecting Montanans from “potentially harmful actors” and practices, it’s “no surprise” that TikTok caught the legislature’s attention, it said. The risk TikTok poses to U.S. users’ data, and the likelihood that data will fall into the possession of the Chinese Communist Party (CCP), isn’t “speculative,” it said.

Amid a “tsunami” of negative TikTok news stories, Montana enacted SB-419, which prohibits the company from operating within the state and mobile app stores from making TikTok’s app downloadable in the state, said Knudsen’s opposition. TikTok and a group of its users, funded by TikTok, now challenge SB-419, but their motion for an injunction must be denied because the measure “is a valid exercise of Montana’s police power,” it said.

The First Amendment leaves the state with no power to restrict expression because of its message, its ideas, its subject matter, or its content,” said Knudsen’s opposition. But SB-419 “doesn’t prohibit certain messages, ideas, subject matter, or content,” it said. “It prohibits the use of a product in Montana.”

First Amendment jurisprudence has no relevance to a statute directed at imposing sanctions on nonexpressive activity, said Knudsen’s opposition. It cited the 1986 U.S. Supreme Court decision in Arcara v. Cloud Books, saying bookselling in an establishment used for prostitution doesn’t confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises.

“So it is here,” said Knudsen’s opposition. Montana’s police power “comfortably lets it regulate (up to the point of banning) products or practices that, in Montana’s judgment, impose unjustifiable consumer harms,” it said. SB-419 does just that, it said: “It bans TikTok because of harms inseparable from TikTok’s data-harvesting practices and ownership by a hostile foreign government -- facts unique to TikTok among social media apps.” As a condition of using the platform, TikTok “captures reams of personal, private data from every Montana TikTok user,” it said.

CCP members are then free “to access those data at any time -- without asking TikTok,” said Knudsen’s opposition.“No other app conditions its use on making Montanans’ digital privacy subject to data harvesting, with 'at-will' CCP access,” it said “In this respect, TikTok stands alone,” it said. No protected expressive attributes “can be attributed to a hostile foreign government’s massive data-harvesting efforts intentionally directed at Montanans,” it said. That’s the “nonexpressive activity” that SB-419 targets, it said.

That’s true even though TikTok “harvests Montanans’ data while transmitting expressive videos to them,” said Knudsen’s opposition. Just as books didn’t override prostitution laws in Arcara, so TikTok’s short-form videos don’t confer First Amendment coverage to defeat a valid statute aimed at protecting Montanans “from forced data-harvesting” subject to at-will CCP access, it said.

Were it otherwise, Montana “would be powerless to ban a cancer-causing radio merely because that radio also transmitted protected speech,” said Knudsen’s opposition. The state also would be powerless “to ban sports-betting apps merely because those apps also shared informative videos teaching their users the intricacies of sports gambling,” it said.

The targeted harms -- cancer, illegal gambling or data-gathering by a hostile foreign state -- “are inherently nonexpressive and thus subject to Montana’s plenary police-power regulations,” said Knudsen’s opposition. “Overlaying them with expressive conduct,” such as radio communications or instructive videos, “doesn’t change that calculus,” it said.

Even if SB-419 “implicates” First Amendment rights, as its critics assert it does, it “passes scrutiny” under the 1968 SCOTUS decision in U.S. v. O’Brien, said Knudsen’s opposition. In that decision, the Supreme Court rejected the view that every person who engages in regulated conduct also intends thereby to express an idea, it said. If regulated non-speech conduct also contains a speech element, SCOTUS applied “a four-part test to assess the law’s constitutionality,” it said. SB-419 “satisfies this standard,” it said.

SB-419's consumer-protection function falls within Montana’s constitutional authority and furthers Montana’s “substantial interests” in consumer protection, said Knudsen’s opposition. The consumer-protection interest here is unrelated to the suppression of free expression, it said. SB-419 “prohibits using TikTok without respect to the messages it conveys,” it said. The perceived evil that SB-419 targets is TikTok’s data-harvesting and sharing with the CCP, it said. Those are harms “that would justify regulating TikTok were it a video app, dating app, or gaming app,” it said.

SB-419's restrictions are no greater than is essential to furthering Montana’s interest “in protecting Montanans’ data privacy,” said Knudsen’s opposition. SB-419 need not be the least restrictive or least intrusive means of furthering that interest “to survive intermediate scrutiny,” it said. Applying that standard, the 9th Circuit “rejected a claim that mandatory school uniforms violated intermediate scrutiny because they limited students’ self-expression through clothing choices,” it said.

SB-419 survives intermediate scrutiny “for the same reason,” said Knudsen’s opposition. The school’s uniform policy was akin to “limiting Montanans’ abilities to express themselves via TikTok,” it said. But Montanans may continue to express themselves through other and traditional methods of communication, it said. They’re free to share videos, memes “and every other kind of expressive content on every other internet-based video or social-media platform,” it said.