• by Wendy Davis  @wendyndavis, May 1, 2024

TikTok is urging a federal appellate court to uphold a trial judge's order prohibiting Montana from enforcing a law that would ban the app in the state.

“The TikTok ban violates the First Amendment because it shuts down a popular platform for speech used by TikTok Inc. and several hundred thousand Montanans to express themselves and communicate,” the company writes in papers filed this week with the 9th Circuit Court of Appeals.

The company's papers concern only the ban enacted in Montana.

TikTok separately faces the prospect of a national ban in a year unless it's sold by China-based parent company ByteDance. TikTok is expected to separately challenge the potential country-wide ban.

Montana's law would have prohibited app stores from offering TikTok to users in Montana. The measure, signed last year and originally slated to take effect January 1, 2024, also would have prohibited people from using TikTok in the state (with some exceptions, including for law enforcement).

The law provided for sanctions starting at $10,000 per violation against TikTok and mobile app marketplaces, but wouldn't have penalized consumers.

Montana lawmakers who passed the bill (SB419) expressed concerns that ByteDance shares data about U.S. users with the Chinese government. The legislature also 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 and a coalition of users challenged the ban, arguing it's unconstitutional for several reasons including that it violated the First Amendment by shutting down a platform that people used to communicate with each other.

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

U.S. District Court Judge Donald Molloy in Missoula halted the law last year, ruling that it likely violates the First Amendment and represents an unconstitutional attempt to regulate interstate commerce.

He said in a written opinion that the law 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, adding that foreign adversaries could also obtain consumers' personal information through other means.

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

Montana Attorney General Austin Knudsen recently asked the 9th Circuit to reverse Molloy's ruling and allow the ban to go into effect, arguing that the law represents a valid attempt to prevent the Chinese government from obtaining people's data.

The statute “is a common sense consumer protection regulation designed to eliminate the threat of a known bad actor obtaining and misusing Montanans’ data,” he argued in a written appeal.

TikTok disputes the characterization of the law as a consumer protection measure, but also says the ban is unconstitutional regardless of how it's characterized.

“All state laws that regulate speech must face First Amendment scrutiny -- even those meant to protect consumers,” the company argues. “The TikTok ban is no different.”

The company also argues that the law wrongly singles out TikTok, when other companies collect data that could end up in the hands of foreign governments.

Knudsen is expected to respond to TikTok's arguments later this month.