Judge Is Rightly Skeptical That Montana Can Just Ban TikTok

It seemed pretty blatantly obvious that a state can’t just ban a popular app used for speech, but Montana insisted otherwise earlier this year, and gleefully passed a law banning TikTok. The law was immediately challenged, and there’s been a lot of back and forth on the docket, including a ridiculous amicus brief from Virginia and 17 other states (all with Republican AGs), claiming that obviously states can ban any speech they want.

It is a principle of federalism that “each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003). Thus, consumer-protection laws “fall in an area that is traditionally within the state’s police powers to protect its own citizens.”

Claiming that banning speech is “consumer protection” is, well, a choice.

And it’s a choice that doesn’t seem to be winning over the judge in the case. Last week there were oral arguments in the case, and Judge Donald Molloy made it pretty clear that Montana’s arguments are nonsense.

Molloy also argued that the state had not substantiated its claims that TikTok users’ data was being “stolen” or misused.

“Your argument just confuses me,” Molloy said. “You need to protect consumers from having their data stolen. But everybody on TikTok voluntarily gives their personal data. If they want to give that information to whatever the platform is, how is it you can protect them?”

He added: “That’s sort of a paternalistic argument. These people don’t know what they’re doing … so we need to say ‘Ban TikTok’ to keep citizens from exercising certain liberties or rights they may have.”

Incredibly, during the oral arguments, the judge asked the state’s solicitor general if they had turned up any proof during discovery that TikTok was putting people’s data at risk, and the state had to admit “we did not.”

Also, perhaps not surprising, Montana’s Attorney General Austin Knudsen (who was said to have actually written the underlying bill) found his own words being used in court to demonstrate just how unconstitutional the bill was.

[Judge Molloy] took issue with Montana lawyers’ argument that the ban was needed to protect residents’ data privacy, saying it was “totally inconsistent” with statements from Knudsen and state legislators that the sole purpose of the ban was to “teach China a lesson.”

“Everyone on TikTok gives them information voluntarily that the state’s concerned about,” Molloy said. “Haven’t [TikTok officials] put forward some significant sworn affidavits under threat of perjury that they do not do the very things the state’s concerned about?”

We’ll see how Molloy eventually rules, but at a first glance, he certainly seems rightly skeptical that states can just randomly ban apps because of some vague moral panic.