Judge Donald Molloy's opinion Thursday in Alario v. Knudsen (D. Mont.) preliminarily enjoined Montana's ban on TikTok, which the state had defended largely on the theory that TikTok was owned by a Chinese corporation and "gathers significant information from its users, accessing data against their will to share with the People's Republic of China," which facilitates "corporate and international espionage in Montana." The court held that the ban was likely unconstitutional even if it was viewed as content-neutral and thus subject to the "intermediate scrutiny" applicable to content-neutral speech restrictions:
To pass intermediate scrutiny, a law must both "advance[ ] important governmental interests unrelated to the suppression of free speech[,] not burden substantially more speech than necessary to further those interests," and "leave open ample alternative channels for communication of the information." …
[T]he law's foreign policy purpose is not an important Montana state interest…. SB 419 explicitly bans TikTok because of its direct connection to a specific foreign nation…. As is explained in more detail below, Montana does not have constitutional authority in the field of foreign affairs.
The State attempts to persuade that its actual interest in passing this bill is consumer protection. However, it has yet to provide any evidence to support that argument…. [And e]ven accepting the State's argument that its stated government interest is consumer protection, the law still must be narrowly tailored to that interest….
First, SB 419 "burden[s] substantially more speech than is necessary." This is apparent on the law's face. SB 419 completely bans TikTok in Montana. It does not limit the application in a targeted way with the purpose of attacking the perceived Chinese problem. At the October 12 hearing, the State argued that the law is narrowly tailored because it is the only way the Legislature could have stopped the purportedly improper behavior it wanted to prevent. In its brief, the State cites a March 2023 article from Reuters reporting on a group of 45 United States attorneys general who moved to file in a Tennessee state court as amici curiae to argue that TikTok has deceptively and improperly ignored requests to produce internal company documents in response to state investigations. The State suggests that any legislation less stringent than an all-out ban would not be properly tailored when the company has already displayed a public willingness to disobey state regulatory requests. However, it is unclear how this single investigation into TikTok warrants a complete ban on the application.
In the same legislative session as SB 419, the Legislature also passed SB 384, a sweeping data privacy law called the Montana Data Privacy Act that purports to protect Montanans against unsafe data collection practices from social media companies in the state. To be clear, courts may not "sift[ ] through all the available or imagined alternative means of regulating [an issue] in order to determine whether the [state's] solution was the least intrusive means of achieving the desired end." But the State may not "regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Banning TikTok outright to support a factually unsupported interest is a clear example of a regulation that burdens more speech than is necessary….
