Legal Sidebari

Montana’s TikTok Ban Goes Before the Ninth
Circuit
May 17, 2024
On November 30, 2023, a federal district court issued a preliminary injunction barring enforcement of a
law banning TikTok’s Montana operations. Without the district court’s preliminary injunction, the
Montana law would have become effective January 1, 2024. Montana appealed the district court’s order
to the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). As referenced in a previous Legal
Sidebar, a number of states have enacted some type of restriction of TikTok platform usage, but
Montana’s law (SB 419) represents the first attempted ban of this breadth among U.S. states per news
reporting. Several months after the district court preliminarily enjoined SB 419, Congress passed the
Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50) (PAFACAA),
the provisions of which are discussed in another Legal Sidebar, as are TikTok’s legal actions challenging
that law. This Sidebar (1) briefly describes the preliminary injunction of SB 419, (2) discusses selected
legal issues before the Ninth Circuit, and (3) highlights some topics that these legal challenges might raise
for Congress.
District Court’s Preliminary Injunction of SB 419
Montana’s TikTok legislation prompted substantial public commentary. According to the law’s preamble,
SB 419 supports the “health and safety of Montanans” by preventing TikTok’s operation in the state and
also expresses concerns about TikTok’s parent company being subject to control by the People’s Republic
of China (PRC), gathering of user information, and “dangerous content.” (The broader policy issues
related to the legislation are beyond the scope of this Sidebar.)
TikTok and several of its users filed suit in federal district court following passage of the law. The district
court issued a preliminary injunction grounded on constitutional concerns with the law, which prevented
SB 419 from taking effect until the court’s final resolution of the case. TikTok’s complaint asserted
violations of several constitutional rights and provisions (the prohibition against bills of attainder, the
Commerce Clause, the First Amendment, and the Supremacy Clause). Other challengers, comprising
TikTok creators and users, made similar arguments. The court found the plaintiffs’ arguments compelling,
concluding they likely would succeed on the merits. The court determined that the plaintiffs established
irreparable harm to their business interests and granted the preliminary injunction.
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Issues Presented to the Ninth Circuit on Appeal
Although attorneys for Montana argued that the law represents a valid exercise of Montana’s police
power, that it does not violate any of the claimed constitutional provisions, that federal law does not
preempt the ban, and that the ban would have only an indirect and thus permissible effect on interstate
commerce, these arguments did not prevail at the district court. Montana has taken the matter to the Ninth
Circuit.
In its opening brief, Montana asserts that SB 419 has a “common sense consumer protection purpose” and
that the district court erred in concluding that TikTok and its users would win their constitutional
arguments. Montana also argues that the district court erred in its application of the remaining preliminary
injunction factors. A selection of Montana’s various arguments, ordered as they appear in the brief,
follows:
• Police Powers: Montana asserts that protecting consumers is an exercise of police power, under
which states have significant discretion.
• Data Access: Montana asserts that, based on news reports, the U.S. user data that TikTok collects
likely is available to the PRC at will, underscoring that the Montana legislature enacted SB 419 to
protect Montana consumers’ data privacy, not to impact the editorial control of the platform.
• Burden Shifting: Montana asserts that the district court, in concluding that TikTok and its users
would prevail on their constitutional claims, erroneously shifted the evidentiary burden for
proving those claims to Montana.
The Ninth Circuit’s review of the district court’s order granting the preliminary injunction is limited.
Montana asks the court of appeals to hold that the district court abused its discretion by relying on “an
erroneous legal standard” or “clearly erroneous factual findings” (internal quotation marks omitted).
Montana emphasizes that a preliminary injunction is a “drastic remedy” that should not issue where a
plaintiff’s claim is “merely plausible” (internal quotation marks omitted). Virginia, together with 18 other
states, filed an amicus brief in support of Montana.
TikTok and its users each filed a response brief in late April 2024. They maintain that the district court
acted properly and emphasize various arguments, including those that follow (ordered as they appear in
the briefs):
• First Amendment: TikTok and its users argue that the preliminary injunction is justified because
SB 419 violates the First Amendment and the law does not withstand any level of scrutiny that
might be applied.
• Supremacy Clause (Preemption): TikTok and its users argue that SB 419 impermissibly conflicts
with the Defense Production Act and constitutes an improper incursion into foreign affairs.
• Commerce Clause: TikTok and its users argue that SB 419 likely violates the Commerce Clause
by impeding the flow of interstate commerce.
These arguments largely reflect those made before the district court. Between Montana’s filing and the
response briefs, Congress passed PAFACAA. The response briefs include mention of this new law to
underscore arguments in favor of federal preemption. TikTok has also brought a pre-enforcement
challenge of the federal law in the U.S. Court of Appeals for the D.C. Circuit. In the present matter, the
Ninth Circuit must weigh the various arguments to determine whether the district court properly
considered and applied the legal standards governing whether to grant a preliminary injunction before a
final determination on the merits of the claims could be made.

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Relevance for Congress
SB 419 and the challenges to it raise some considerations in common regarding application-specific
federal legislation. As mentioned above, PAFACAA, passed in April 2024, regulates “foreign adversary
controlled applications,” and includes TikTok among such applications. Prominent among the arguments
made by TikTok in its pre-enforcement challenge to that law in the D.C. Circuit are free speech
challenges. In resolving those arguments, the D.C. Circuit is expected to consider issues such as
constitutional protections for speech platforms, the First Amendment doctrine of prior restraints, the
question of whether the PAFACAA regulates conduct rather than speech, and the extent to which the
law’s “qualified divestiture” exemption renders it materially different than a ban. (At the time of this
publication, the government’s brief has not been filed.) Several of these considerations exist also for a
state-specific ban like SB 419. Such considerations are potentially relevant whenever regulating an
application used to share information, as illustrated in arguments raised by users challenging an Executive
Order directed at WeChat.
As analyzed in another Legal Sidebar, Congress has considered bills that would restrict access to and
sharing of information with and via certain platforms. Federal legislation does not face some of the state-
specific legal issues presented in the SB 419 litigation, such as preemption or “Dormant” Commerce
Clause challenges. The legal disposition of some of the other constitutional questions posed by SB 419
and related legislation may, however, inform the scope of both federal and state authority in this area.
While the framework of the constitutional analysis could vary based on specific differences in legislation,
the outcome of the litigation may illuminate the extent to which the federal government may legislate
with results that limit foreign-owned platforms.
Communications technology is not the only market in which states have sought to limit participation by
certain foreign entities. Recent challenges to Florida’s land ownership restrictions illustrate how state
legislation foreclosing foreign participation in varied state markets may prompt litigation. The ultimate
results of these suits could offer additional insight into the degree of Congress’s exclusivity in these areas.


Author Information

Sanchitha Jayaram

Assistant Director/ALD




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