• by Wendy Davis  @wendyndavis, December 1, 2023

A federal judge has blocked enforcement of Montana's ban on TikTok, ruling that the bill likely violates the First Amendment and represents an unconstitutional attempt to regulate interstate commerce.

The ban “oversteps state power and infringes on the Constitutional rights of users and businesses,” U.S. District Court Judge Donald Molloy in Missoula wrote in a 48-page decision issued late Thursday.

The decision comes in response to two lawsuits challenging the ban -- one by a coalition of TikTok users, and a second one by TikTok, owned by the Chinese-company ByteDance.

Montana's law, which had been slated to take effect January 1, would have prohibited app stores from offering TikTok to users in Montana, and prohibited people from using TikTok in the state (with some exceptions, including for law enforcement). The measure wouldn't have penalized users, but provided for sanctions starting at $10,000 per violation against TikTok and mobile app marketplaces.

Other states have banned the app from government-owned devices or networks, but Montana alone attempted to prohibit use of the app on personal smartphones.

Montana lawmakers who passed the bill expressed concerns that ByteDance shares data about U.S. users with the Chinese government.

The Montana legislature also accused TikTok of failing to remove “dangerous content” that allegedly encourages young users to engage in risky activity, such as “throwing objects at moving automobiles,” “inducing unconsciousness through oxygen deprivation,” and “cooking chicken in NyQuil.”

TikTok argued to Molloy that the ban would unconstitutionally shut down a platform that “hundreds of thousands of individuals in Montana use to engage in constitutionally protected speech.”

The company also said there was no evidence the app had been used for espionage on behalf of a foreign government.

Molloy said in his decision blocking the law that it wasn't “narrowly tailored” to either preventing China from accessing data about U.S. residents, or protecting minors from accessing dangerous material.

“It is well-established that other social media companies, such as Meta, collect similar data as TikTok, and sell that data to undisclosed third parties, which harms consumers,” he wrote.

“Additionally, there are many ways in which a foreign adversary, like China, could gather data from Montanans. For example, it could do so by 'purchasing information from data brokers (a practice in which U.S. intelligence agencies also engage), conducting open-source intelligence gathering, and hacking operations,” he added.

He also said the bill wouldn't “reasonably prevent” minors from accessing dangerous content.

“It is not hard to imagine how a minor may access dangerous content on the Internet, or on other social media platforms, even if TikTok is banned,” he wrote.

The decision comes around six weeks after a hearing at which Molloy appeared skeptical of the law.

“Seems like there are a lot of things that could have been done short of an outright ban,” Molloy said during a 70-minute hearing over the law's constitutionality. 

State Solicitor General Christian Corrigan argued at the hearing that the ban was aimed at protecting Montana residents' privacy.

But Molloy countered that TikTok users voluntarily provide data to the app, owned by the Chinese company ByteDance.

“Your argument just confuses me,” Molloy told Corrigan.

“If they want to give that information ... how is it that you can protect them?” Molloy added. “That's sort of a paternalistic argument."