Judge Grills Mont. Solicitor General on State’s Rationale for Enacting TikTok Ban

U.S. District Judge Donald Molloy for Montana in Missoula inundated Montana Solicitor General Christian Corrigan with tough questions during oral argument Thursday when Corrigan defended against a preliminary injunction to block Montana Attorney General Austin Knudsen (R) from enforcing SB-419, the state’s TikTok ban, when the statute takes effect Jan. 1. Five TikTok creators, plus TikTok itself, are seeking the injunction in two consolidated cases (dockets 9:23-cv-00056 and 9:23-cv-00061).

Molloy, a President Bill Clinton appointee, asked Corrigan to defend how SB-419 was “narrowly construed” to address the Montana legislature’s concerns that data collected from TikTok users would fall into the possession of the Chinese Communist Party (CCP). Corrigan responded that SB-419 “cures the exact source of evil that it sought to remedy.” There was “simply no other way to guarantee Montanans’ safety from the use of TikTok, other than a flat ban, until it ceases its ties with China,” he said.

Corrigan’s answer apparently didn’t placate Molloy. “It seems to me,” said the judge, “there are a number of things that the legislature should have or could have done” to address its data privacy concerns “instead of banning TikTok.” He suggested the legislature could have enacted a “criminal statute” to protect TikTok users who came forward to allege the platform had “stolen” their personal data.

Another suggestion would have been for the Montana AG to produce a public service announcement warning TikTok users about the platform’s ties to the CCP, said the judge: “Seems like there’s a lot of things that could have been done short of an outright ban.” Corrigan answered that the “main reason” why SB-419 was the best remedy was because of TikTok’s “ability to dodge general consumer protection investigations.”

Forty-five state AGs “have demanded that TikTok produce materials for consumer protection investigations,” but the company repeatedly refused to “respond adequately” to those requests, said Corrigan. Molloy asked Corrigan: “Of the 45 states you referenced, have any of them banned TikTok?” Corrigan answered “they have not yet.” Montana “is at the forefront of this,” and it “took the lead here,” he said.

'Hostile Foreign Power'

When Molloy told Corrigan that he didn't think the legislature’s data privacy concerns squared with everybody on TikTok voluntarily giving the platform the personal information that “the state’s concerned about,” Corrigan responded that TikTok is the only social media app with “a connection to a hostile foreign power.” Corrigan conceded that during expedited discovery, Montana was unable to unearth any evidence contradicting sworn testimony from TikTok’s expert witnesses that no data-sharing takes place between the platform and the CCP.

Montana’s argument “just confuses me,” said the judge. If consumers want to give their personal data “to whatever the platform is, how is it that you can protect them?” asked the judge. “That’s sort of a paternalistic argument,” said Molloy. It suggests the state thinks Montanans “don’t know what they’re doing” when they volunteer their personal data to a platform with ties to a foreign adversary, he said. Corrigan said he thinks it’s TikTok’s “deceit” about its ties to the CCP that explains why users volunteer their personal data to the platform without much trepidation.

Montana’s TikTok ban “shutters a forum for communications on which plaintiffs undisputably rely to express themselves, and in some cases, to make a living,” said Ambika Kumar, the Davis Wright attorney for the five individual TikTok creators who sued Montana May 17 to block enforcement of SB-419 (see 2305190035). SB-419 is “overbroad, and fails strict or even intermediate scrutiny under the First Amendment,” she said.

SB-419 “prohibits TikTok from operating altogether” in Montana, said Kumar. “Banning a forum for communication is regulation of speech, subject to the First Amendment,” she said. “Under the First Amendment, a law is overbroad if a substantial number of its applications are unconstitutional,” she said. The state has “posited two interests,” national security and prohibiting dangerous content, in enacting SB-419, she said. But the state "has no interest in national security,” she said. Even if it did, the state “cited no evidence of their interest,” she said.

TikTok, in contrast, “provided declarations attesting that the state’s speculation that TikTok is stealing users’ data against their will and sharing it with China is false,” said Kumar. On Montana’s asserted interest in enacting SB-419 to prohibit dangerous content, “the state may regulate only unprotected content,” she said. The U.S. Supreme Court has said “time and again, that the state may not prohibit constitutionally protected speech merely because the state believes that speech will harm people,” she said.

'Completely Overboard'

It’s not the plaintiffs’ position that the state “can never regulate anything on the internet,” said Kumar, in answering the judge’s question about Montana's regulatory authority over online content. “Our position is that the state has gone completely overboard” with SB-419, she said. “It’s not even close as to whether they’ve regulated too much,” and that’s “underscored” by the legislative “alternatives that they had,” but didn't pursue, to address their asserted data privacy concerns, she said.

Montana has a consumer privacy statute that was enacted around the same time as SB-419, said Kumar. The state could enforce that statute, she said. Montana also could offer “heightened protections” for journalists and government officials, and the state’s ban of TikTok use on government devices “is a step in that direction,” she said. The state also could enact a law “prohibiting the transfer of data to specified third parties,” she said. “Instead of doing that, the state banned the entire forum, and that is plainly overbroad,” she said. There’s no state interest “that could justify TikTok’s complete ban in the state of Montana,” she said.

Creators “have good reason for preferring TikTok,” said Kumar, when Molloy asked her why people who use TikTok “for commercial purposes” can’t just go to another platform if SB-419's ban takes effect. Creators attest they can’t “reach the audiences or consume the content they want on other platforms,” she said.

TikTok “is unique,” said Kumar. Creators “all attested that the app’s organic reach to an audience that doesn’t require payment is unparalleled,” she said. “Creators have specifically said that they cannot simply pick up and move to a different platform,” she said.

One of Kumar’s clients, TikTok influencer Heather DiRocco, “attested that she makes 10%-30% of her income on TikTok, and has not found success on other platforms,” said Kumar. “She also has a community to which she would lose access” if SB-419's ban is enforced, she said. DiRocco is a military veteran who uses TikTok “to network with other veterans about suicide prevention and the like,” she said. “She has tried to find similar communities and an audience on other platforms, but has failed,” she said.