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U.S. District Judge Donald Molloy said in his preliminary injunction that the first-of-its-kind state law “likely” violates the First Amendment. A trial to review its legal authority could still reinstate the ban.
Montana’s statewide ban on TikTok is in limbo after a federal judge granted a temporary injunction against the first-in-the-nation law before it takes effect next month.
U.S. District Judge Donald Molloy said the ban, which Gov. Greg Gianforte signed in May and was set to take effect Jan. 1, 2024, “oversteps state power” and is “unlikely to pass even intermediate scrutiny” as it likely violates the First Amendment’s protection of free speech. Molloy said the app is a “means of expression” used by over 300,000 Montana residents and that Montana legislators had other things on their mind than consumer safety when they passed the legislation.
“Despite the State’s attempt to defend SB 419 as a consumer protection bill, the current record leaves little doubt that Montana’s legislature and Attorney General were more interested in targeting China’s ostensible role in TikTok than with protecting Montana consumers,” Molloy wrote in his ruling.
The lawsuit was filed against the bill by TikTok and a group of content creators and follows an October hearing in federal court. Molloy said he granted the preliminary injunction against the law as the plaintiffs offered “the better arguments” and were more likely to succeed “on the merits.”
Supporters of Montana’s law—who argue TikTok is a threat to national security and could expose Americans’ information to China—said it wouldn’t violate the First Amendment as users could utilize other platforms to communicate. But Molloy rejected that argument, saying a ban like Montana’s would prevent users from “communicating by their preferred means of speech.”
Molloy also said that Montana’s leaders had not done enough to prove Chinese interference in TikTok’s operation, and that it places an undue burden on interstate commerce. As such, Molloy said the law as written “violates the Constitution in more ways than one.”
TikTok celebrated Molloy’s ruling. In a post to X, formerly known as Twitter, the company’s policy arm said it means “hundreds of thousands of Montanans can continue to express themselves, earn a living and find community on TikTok.”
Advocacy groups also welcomed Molloy’s preliminary injunction. Carl Szabo, vice president and general counsel at the open internet nonprofit NetChoice, said in a statement that Montana’s law is “plainly unconstitutional.” The group already filed a brief in support of the lawsuit.
“The government may not block our ability to access constitutionally protected speech—whether it is in a newspaper, on a website or via an app. In passing this law, Montana’s government ignored the Constitution, harmed its businesses and creators, chilled innovation and disconnected Montanans,” Szabo continued.
Other legal challenges against TikTok are similarly not faring well. A judge in Allen County, Indiana, recently dismissed the state’s lawsuit against the company, arguing that Indiana does not have jurisdiction and reaffirming a previous ruling that downloading a free app does not constitute a consumer transaction under state law. Indiana Attorney General Todd Rokita said the state is considering its options for appeal.
“A ‘ban’ is a diktat used by authoritarian countries—not the United States of America,” Szabo said.
But the Montana law is not dead yet. In an email to multiple outlets, Emilee Cantrell, a spokeswoman for Knudsen, noted that the decision is “preliminary” and that the judicial “analysis could change as the case proceeds and the State has the opportunity to present a full factual record.”
The full trial to determine the law’s future has yet to be scheduled.