Is Montana TikTok ban like outlawing ‘cancer-causing’ radios?

Citing case law on everything from prohibitions on "cancer-causing radios" to school uniforms, Montana Attorney General Austin Knudsen is firing the latest salvo in the legal battle over banning TikTok.

And he's hoping those arguments will sway a U.S. District Court judge from issuing a preliminary injunction halting the state's prohibition before the merits of the case can be argued for a final ruling.

Montana is defending the approval of SB 419, the bill passed by the Legislature and signed by Governor Greg Gianforte last year, which prohibits TikTok from operating in Montana, and from carriers making the app available for download after the first of the year. The law stemmed from concerns that TikTok, and its parent company ByteDance, were accessing Montana's private data and even sharing it with the Chinese Communist Party.

A group of Montana TikTok users filed the suit, claiming it was restricting their free speech and ability to make a living off the video posting app. ByteDance and other parties have since joined the suit.

The plaintiffs have asked Judge Donald Malloy to grant a preliminary injunction to block the law.

But in the new 54-page filing, Knudsen argued "SB 419 is a valid exercise of the Legislature's Authority," saying that "vast parts of the Montana Code protect Montanans from unscrupulous actors" by allowing consumer protection measures.

Knudsen outlines the "risk" by citing a number of news reports about TikTok privacy concerns, and noting the U.S. Secretary of Commerce has designated the "People's Republic of China" as a "foreign adversary."

A "drastic remedy"

Knudsen argues against the preliminary injunction, saying the bill is a "valid exercise of Montana's Police Power" and doesn't restrict First Amendment expression because "SB 419 doesn't prohibit certain messages, ideas, subject matter or content. It prohibits the use of a product in Montana."

He then argues Montana does have the authority to ban "products or practices, that in Montana's judgment, impose unjustifiable consumer harms." He says that happens because TikTok "captures reams of personal, private data from every Montana TikTok user." Then, he says "C.C.P. members embedded in ByteDance can use a 'god credential to access those data at any time without asking TikTok."

Knudson says if Montana didn't have that prohibition authority it would be "powerless to ban a cancer-causing radio merely because that radio also transmitted protected speech" or sports-betting apps that showed videos on how to gamble.

The school uniform argument

Knudsen cites case law over restrictive school uniform policies, noting Montanans "may continue to express themselves through other and traditional methods of communication" by sharing videos and "every other" kind of "expressive content" on other platforms.

"Because SB 419 doesn’t affect any other app or part of the internet, it’s equivalent to proscribing only ripped jeans," he writes.

No trial date has been set in the case and we don't know when the judge might rule on the preliminary injunction.