TikTok Urges 9th Circuit to Affirm Injunction Blocking Mont. Statewide Ban

If Montana’s statewide TikTok ban, SB-419, were to go into effect, it would shut down “a unique and popular platform for speech” used by “several hundred thousand” Montanans, said TikTok’s answering brief Monday (docket 24-34) in the 9th U.S. Circuit Appeals Court. Montana Attorney General Austin Knudsen’s (R) appeal seeks to vacate the district court injunction that blocks him from enforcing SB-419 (see 2403020001).

Knudsen’s arguments for defeating the injunction “are premised on a fiction,” said TikTok’s brief. As the district court correctly found, SB-419's text and legislative history make clear that the state's actual purpose in banning TikTok is to stop a perceived national security threat from the Chinese government, it said.

The state argues that the district court wrongly assumed that because SB-419 mentions China, it has a national security or foreign affairs purpose, when the ban is “a run-of-the-mill consumer protection statute,” said TikTok’s brief. But the state can’t “save its unconstitutional legislation by rewriting it in litigation,” it said.

SB-419 is a “textbook attempt” of a state to improperly and unlawfully regulate foreign affairs, said TikTok’s brief. It seeks to prevent international espionage by a foreign adversary, contains “no restrictions whatsoever” on how TikTok must treat Montanans' data and is voided if the platform is sold to a company not incorporated in a foreign adversary country, it said. Even if the state sought to protect Montanans' data from the Chinese government, SB-419 “was expressly enacted to address perceived national security risks posed by a foreign power, which is an exclusively federal interest,” it said.

Montana’s TikTok ban “plainly exceeds” the state’s constitutional authority, said the plaintiff's brief. The state doesn’t have a valid state interest in regulating national security, and it fails to advance any other interest to justify the ban, “let alone an interest supported by evidence,” it said.

Nor has the state met its burden to establish that the many “less-restrictive alternatives” to a ban would be insufficient, said TikTok’s brief. Instead, as the district court explained, the Montana legislature used an ax to solve its professed concerns when it should have used a constitutional scalpel, it said.

Because SB-419's “purpose and effect” are to inject the state into matters of national security and foreign affairs, it is preempted by federal law, said TikTok’s brief. By discriminating against foreign commerce and unreasonably burdening interstate commerce, the ban also violates the Constitution’s commerce clause, it said.

The district court didn’t abuse its discretion in finding that a preliminary injunction was warranted, said TikTok’s brief. The 9th Circuit should affirm the district court’s “well-reasoned decision,” it said.