Parties in 9th Circuit Mont. TikTok Ban Appeal Ask That It Be Held in Abeyance

The parties in the consolidated appeal to affirm or reverse the preliminary injunction blocking the enforcement of Montana’s statewide TikTok ban (see 2312010003) want the 9th U.S. Circuit Appeals Court to hold the appeal in abeyance, pending the D.C. Circuit’s decision in the TikTok/ByteDance constitutional challenge of the federal TikTok ban, said the parties’ joint motion Tuesday (docket 24-34).

The district court previously stayed the proceedings in the Montana TikTok ban to await the D.C. Circuit’s ruling on the federal ban (see 2405160031). The district court ordered the stay lifted if the 9th Circuit grants the appeal of Montana Attorney General Austin Knudsen (R) to reverse the preliminary injunction. Before the parties’ joint motion to hold the appeal in abeyance, the 9th Circuit had signaled its intention to schedule oral argument in the appeal for September or October in San Francisco (see 2405170009).

The TikTok/ByteDance D.C. Circuit petition claims that the federal TikTok ban, and the Protecting Americans from Foreign Adversary Controlled Applications Act, in which it’s embedded, violates the First Amendment and is an unconstitutional bill of attainder (see 2405070045). TikTok and ByteDance also contend that the statute violates their Fifth Amendment equal protection rights, and that it constitutes an unlawful taking of private property without just compensation.

President Joe Biden signed the measure into law April 24. The federal TikTok ban takes effect Jan. 19, unless ByteDance divests its ownership of TikTok’s U.S. subsidiary. The ban would prohibit app stores and internet hosting services from servicing TikTok within the U.S.

The parties in the 9th Circuit appeal submit that “it would be appropriate to hold these appellate proceedings in abeyance pending final adjudication” of the TikTok/ByteDance constitutional challenge in the D.C. Circuit, said their joint motion. “That action bears upon this case in several respects and holding these proceedings in abeyance would further the orderly course of justice by simplifying the issues and questions of law in this appeal,” it said.

TikTok and the five individual TikTok users in the consolidated appeal argue that Montana’s TikTok ban is preempted by federal law, said the joint motion. The TikTok/ByteDance petition pending before the D.C. Circuit “will clarify the scope of the federal law in this area,” bearing upon the 9th Circuit’s preemption analysis, “in addition to addressing other matters bearing upon this case,” it said.

“Given that the D.C. Circuit action will clarify the legal issues for this appeal,” the parties submit that it would be appropriate to hold that appeal in abeyance, said the joint motion. Such relief wouldn’t prejudice any party, “as reflected by this joint motion,” it said. The parties ask that they be directed to confer and file a status report within 30 days of the final adjudication of the D.C. Circuit action, it said.