Will a Federal Judge Stop Montana’s TikTok Ban From Going Into Effect?

The case will likely chart a path for other states — and the country — as debate escalates over the intersection of national security, consumer privacy, and free speech rights.

AP/Michael Dwyer
TikTok logo on a cell phone. AP/Michael Dwyer

A federal judge will hear arguments Thursday about whether Montana’s first-of-its-kind TikTok ban is constitutional, a case that could chart a path for other states — and the country — as debate escalates over the intersection of national security, consumer privacy, and free speech rights. 

TikTok and five content creators are asking a U.S. district judge in Montana, Donald Molloy, to put the ban on hold before it takes effect on January 1, arguing that the law is a form of censorship that violates the free speech rights of Montana citizens. 

Supporters of the ban — including Montana’s governor, Greg Gianforte, who signed the law in May — believe it protects residents’ privacy from the Chinese government. 

Although Montana is the first state to ban TikTok for all residents, doing so has been a hot political topic since the app’s usage skyrocketed during the pandemic. Lawmakers have expressed concern that the app’s Chinese parent company, Bytedance, gives data to Communist China’s government. Federal efforts to ban the app — which are ongoing — have drawn criticism from across the political spectrum, as The New York Sun has reported. 

“While the Chinese Communist Party may try to hide their nefarious spying and collection of individuals’ personal, private, sensitive information under the banner of our First Amendment, the governor has an obligation to protect Montanans and their individual privacy right, as guaranteed by the Montana Constitution, from the Chinese Communist Party’s serious, grave threats,” a spokeswoman for Mr. Gianforte tells the Sun. 

The Montana case will “absolutely” have national ramifications, the president of Digital Progress Institute, Joel Thayer, which filed an amicus brief arguing that Montana’s TikTok ban does not violate the First Amendment, says. 

“This is something that everyone should be paying attention to,” Mr. Thayer tells the Sun, because it will set a precedent for how states can regulate internet privacy. “This has implications for Google, Apple, Meta,” he says, adding that “if the court says that you can’t do it for TikTok, you can’t do it for any of them either, most likely. That is why this is such a serious case.” 

TikTok has positioned the debate as a federal issue, Mr. Thayer says, without acknowledgment that, unlike the U.S. Constitution, Montana’s constitution lays out a specific “right of individual privacy.”

If the court rules that Montana’s law — which the state says is an attempt to defend its citizens’ constitutional right to privacy — is a regulation of interstate commerce, “that basically means for every state that, if it’s on the internet, you can’t touch it, whatever the harm is,” Mr. Thayer says. 

The law wouldn’t affect any residents who already installed the app or out-of-state travelers, but would instead prevent new downloads or updates to the app within the state. 

Enforcement of the ban has drawn First Amendment concerns from critics, which Mr. Thayer says are unfounded. 

“The Chinese government does not have a First Amendment right to spy on people. Nor does the First Amendment protect companies doing illegal activity,” he says. “There’s nothing in this law that has anything to do with the content that overlays the app itself,” but rather it regulates the background business relationships with China, he says.

Those who oppose the ban on First Amendment grounds are saying “that TikTok is somehow so special” that “even if they are conducting illegal activity, violating privacy rights, conducting foreign espionage campaigns, the First Amendment should not be any barrier for a state to try to enforce a law that says you can’t do that,” he adds.

Opponents of the law say enforcing it would require a “massive surveillance” of “all U.S. internet-connected devices,” because phones would have to report precise locations to the government, as a senior fellow for global cyber policy at the Council on Foreign Relations, Tarah Wheeler, argues.

“There’s a profound irony in the fact that to enforce a ban on TikTok in Montana,” Ms. Wheeler writes, the legislature would have to have broken or bypassed encryption on “all phones inside the state to prevent any downloads of the app and monitor for its use,” adding that it would be the same method China uses to censor apps. Ms. Wheeler was not immediately reachable by the Sun for comment. 

“We believe the Montana ban is unconstitutional and look forward to our day in court,” a TikTok representative tells the Sun.

The New York Sun

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