Mont. AG Defends TikTok Ban as ‘Common Sense’ Consumer Protection Law

The district court erred in concluding that TikTok and its individual users were likely to prevail on the merits of their First Amendment, supremacy clause and commerce clause challenges to SB-419, Montana’s statewide TikTok ban, said Attorney General Austin Knudsen’s (R) opening brief Friday (docket 24-34) at the 9th U.S. Circuit Appeals Court. He's seeking to reverse the injunction that blocks him from enforcing the ban (see 2312010003).

SB-419 doesn’t trigger First Amendment scrutiny because it neither targets conduct with a significant expressive element nor has the inevitable effect of singling out those engaged in expressive activity, said the brief. The U.S. District Court for Montana also erred in finding that SB-419 wasn’t narrowly tailored, it said.

In enacting SB-419, the Montana legislature “responded to serious, widespread concerns” about TikTok’s data-privacy practices “and its failure to safeguard U.S. user data” from members of the Chinese Communist Party, said the brief. State and federal government officials “across the political spectrum have sounded the alarm,” it said. Congress and 33 other states have banned TikTok on all government devices, and several countries have either banned TikTok entirely or on government devices, it said.

SB-419 is a “common sense” consumer protection regulation designed to eliminate the threat of “a known bad actor obtaining and misusing Montanans’ data,” said the brief. But rather than “crediting Montana’s common sense consumer protection purpose” for enacting SB-419, the district court “imputed” a “pervasive undertone of anti-Chinese sentiment” to the Montana legislature, it said. The district court also repeatedly failed to hold the plaintiffs to their evidentiary burden, “instead shifting that burden to Montana,” it said. Aided by these errors, the district court erroneously concluded that the plaintiffs were likely to prevail on their constitutional claims, it said.

If SB-419 triggers First Amendment scrutiny, the 9th Circuit should apply U.S. v. O’Brien, the 1968 U.S. Supreme Court decision that addresses “regulated nonspeech conduct with a speech element,” said the brief. Short of that, the 9th Circuit should adopt the district court’s conclusion that SB-419 is like a content- and viewpoint-neutral time, place, or manner restriction, it said. Either way, the 9th Circuit “applies a nearly identical form of intermediate scrutiny analysis,” it said.

The district court also erred in concluding that SB-419 is likely preempted under the “foreign affairs field preemption” doctrine and the Defense Production Act, said the brief. Starting with the foreign affairs preemption, it found that SB-419 has no serious claim to be addressing a traditional state responsibility and intrudes on the federal government’s foreign affairs power, it said.

But SB-419 is a consumer protection law that falls within the state’s police powers, said the brief. Neither SB-419’s text nor its legislative history supports the district court’s conclusion that SB-419’s true purpose was to make a foreign affairs statement, it said. Resting on the back of its “erroneous conclusion” about Montana’s interest, the district court found that SB-419 “intrudes on the federal government’s foreign affairs power,” it said. “But it failed to identify anything resembling the kinds of direct impacts on foreign relations that courts have held sufficient to establish preemption,” it said.