TikTok’s victory in Montana (not to mention its defeat in Texas) paradoxically bodes poorly for TikTok’s ability to challenge a federal ban.
On Nov 30, 2023, the U.S. District Court for the District of Montana granted a preliminary injunction against the first-ever statewide ban on social media application TikTok—Montana’s SB 419. Judge Donald W. Molloy found that TikTok was likely to succeed on the merits because SB 419 was unconstitutional on three separate grounds: the First Amendment, the Dormant Commerce Clause, and federal preemption. Understandably, several early articles portrayed the injunction as a major win for TikTok. However, while the opinion decisively rejected Montana’s statewide ban, Molloy’s reasoning suggests a federal TikTok ban statute would fare well in court. TikTok’s victory against Montana, thus, may well prove pyrrhic.
TikTok’s woes were compounded the following month. On Dec. 11, 2023, the U.S. District Court for the Western District of Texas dismissed a First Amendment challenge to Texas Gov. Greg Abbott’s order for state agencies to ban TikTok from government devices and the University of North Texas System (UNT)’s implementation of this order banning TikTok installations and use on UNT devices. Judge Robert Pitman held that UNT’s policy was viewpoint neutral and a reasonable regulation of a nonpublic forum (such as university devices).
For several years, government officials have been raising alarm about TikTok’s operations in the United States. Of central concern is that the platform is controlled by ByteDance, which has ties to the Chinese government and Chinese Communist Party (CCP).
In 2017, ByteDance purchased American company Musical.ly, which it then combined with its newly established TikTok app. TikTok soon took off in the United States, reaching more than 100 million users today. Amid rising concerns about China’s ability to use TikTok to control American sources of information and gather Americans’ data, senators from both parties have sounded the alarm and the Committee on Foreign Investment in the United States (CFIUS) began investigating TikTok. (CFIUS screens inbound investment for national security risk and can order divestment of such transactions or order mitigation.)
Upon CFIUS’s recommendation, President Trump took two actions against TikTok in August 2020. First, Trump issued an order, using his power under the International Emergency Economic Powers Act (IEEPA), to block transactions involving—and thus banning—TikTok and Chinese tech company Tencent’s WeChat messaging app in the United States. A week later, following CFIUS’s investigation of ByteDance’s acquisition of Musical.ly, Trump ordered ByteDance to divest from TikTok. Neither order took effect. First, the IEEPA order was enjoined on statutory grounds. A U.S. district court found that it exceeded the president’s power under the IEEPA, owing to a carve-out called the Berman Amendment, which limits the president’s power to block cross-border trade in “information or informational materials.” The WeChat order was separately enjoined on First Amendment grounds. Second, the CFIUS order was held up in litigation throughout the end of Trump’s term, until Biden, soon after entering office, ordered the lawsuit held in abeyance pending review.
Pressure on TikTok continues. CFIUS continued investigating TikTok and throughout 2022 was negotiating a mitigation agreement with TikTok, dubbed Project Texas, that would have purportedly limited data security risks and reduced ByteDance’s control of the application. However, despite these efforts, by March 2023, Biden’s CFIUS reportedly reached the same conclusion as Trump’s CFIUS: ByteDance must sell TikTok to an American company or face a ban.
While the Biden administration has yet to take legal action toward TikTok, there is no doubt it considers the platform to be a national security risk. In addition to CFIUS’s actions, President Biden, on the 2020 campaign trail, called TikTok a “genuine concern”; in 2023 the White House endorsed legislation promoted as a way to manage the TikTok threat; administration officials, from the CIA director, to the FBI director, to the treasury secretary, and many more, have expressed their views that TikTok threatens U.S. national security. But despite the security threat, this condemnation of TikTok does not come without political risk. The Biden administration is reportedly weighing concerns that banning TikTok will alienate young voters, a core Democratic Party constituency. And while Biden banned TikTok from his 2020 campaign staff’s devices, Biden’s 2024 campaign is reportedly weighing joining TikTok to woo the youth vote.
In the meantime, Congress and state governments have been active against TikTok on the legislative front. In 2022, Congress banned TikTok from federal government devices. What’s more, numerous bipartisan statutes aiming at banning, or forcing ByteDance’s divestment of, TikTok have been introduced, from targeted bans to sweeping grants of authority that could eliminate Berman Amendment concerns. In the states, the majority of legislatures have banned TikTok from state government devices. Montana, however, went further than any other state in passing SB 419, a statute that sought to fully ban TikTok from all devices in Montana. SB 419, passed on May 4, 2023, imposes a $10,000 fine on TikTok or mobile app stores “each time that a user accesses TikTok, is offered the ability to access TikTok or is offered the ability to download TikTok” in Montana.
Judge Molloy’s Opinion
Judge Molloy is likely one of the more sympathetic federal judges TikTok could hope for. Throughout the opinion, Molloy expressed disdain for SB 419 and its rationale, inferred a “pervasive undertone of anti-Chinese sentiment that permeates the State’s case and the instant legislation,” unfavorably quoted legislative history that suggested unsavory motives, and during oral arguments, described the statute as “paternalistic.”
To grant a preliminary injunction, Molloy had to find that TikTok established four points: (a) TikTok is likely to succeed on the merits in demonstrating unconstitutionality, (b) TikTok would suffer irreparable harm in absence of the injunction, (c) the balance of equities favor TikTok, and (d) that an injunction is in the public interest.
Molloy found that TikTok was likely to succeed on the merits on three separate bases. First, he held that SB 419 likely violates the First Amendment. Second, he held that SB 419 is likely unconstitutional under the Supremacy Clause, as it is preempted by federal law—both because the statute “infringes on the federal government’s exclusivity over foreign affairs” and because the statute directly conflicts with the CFIUS statutory provision, 50 U.S.C. § 4565. Third, he held that the statute violates the so-called Dormant Commerce Clause, under which states are limited in their ability to regulate interstate or international commerce.
Molloy completely ignored TikTok’s fourth challenge to SB 419—that it was an unconstitutional bill of attainder, which is a statute punishing a specific person or persons without trial. The U.S. Constitution bars both states and the federal government from passing bills of attainder, so a TikTok victory on this point would bode poorly for a federal ban. Molloy never mentioned this argument in his opinion—perhaps because he did not believe the Bill of Attainder Clause applied to corporations, or perhaps because the legislature had clear motives (national security, privacy, and so on) beyond mere punishment. Regardless of the reason, Molloy evidently did not think TikTok would likely succeed on the merits of this argument.
First Amendment Analysis
One of the most important elements of constitutional rights analysis is choosing a “tier of scrutiny” with which to analyze the constitutionality of a statute. Notably, in this case, even the sympathetic Judge Molloy applied a lower tier of scrutiny than TikTok sought. While Molloy found that SB 419 implicated speech and, thus, the First Amendment, he rejected TikTok’s request to apply strict scrutiny (which is notoriously difficult to pass), instead applying intermediate scrutiny as Montana had requested. While TikTok succeeded under intermediate scrutiny in this case, it is a very bad sign for TikTok’s ability to challenge a future federal ban that a sympathetic judge applied this lower standard of scrutiny.
Content-neutral regulations are analyzed under intermediate scrutiny, under which the statute need only “advance important governmental interests unrelated to the suppression of free speech and … not burden substantially more speech than necessary to further those interests,” while leaving other “channels for communication of … information” available. Strict scrutiny applies when the government is engaged in viewpoint- or content-based speech regulation or “prior restraints” on specific speech. Under strict scrutiny, statutes are “presumptively unconstitutional and may be justified only if the government proves that [they are] narrowly tailored to serve compelling state interests” unrelated to speech suppression. This narrow tailoring often requires the state to establish the statute as the “least restrictive means among available, effective alternatives.” Thus, strict scrutiny imposes a much higher burden on the government on both the interests prong and the tailoring prong of the analysis.
Judge Molloy was not entirely decisive in choosing a tier of scrutiny, stating that “neither” TikTok’s argument that the statute was content-based so should face strict scrutiny, nor Montana’s argument that the statute was content-neutral and so should face intermediate scrutiny “is completely accurate, but the State’s is closer to the legal mark.” He, therefore, applied intermediate scrutiny. Specifically, he decided that SB 419 was most analogous to “a restriction on the time, place, or manner that a person could speak in the public forum—that is the Internet.” In other words, under SB 419, Montanans could still post, share, and view whatever videos they liked on any platform they choose, except TikTok, which is analogous to a city barring public demonstrations in a specific town square, but leaving others free. TikTok argued strict scrutiny applied because SB 419 was a prior restraint. Molloy rejected this as well, notably comparing SB 419 favorably to Trump’s WeChat ban. In U.S. WeChat Users Alliance v. Trump, the district court applied strict scrutiny, because the executive order would entirely shut down what was effectively the only available internet platform allowing Chinese speakers in the U.S. to communicate in the manner they desired. By contrast, TikTok users could switch platforms without the insurmountable language barrier Chinese speakers ostensibly faced. However, while he applied intermediate scrutiny to the statute because it was a “closer” fit, he declined “to precisely categorize SB 419 as a content-based or content-neutral” law. At the preliminary injunction stage, Molloy determined he did not need to reach a decisive answer, because Montana failed even on the lower intermediate scrutiny.
While Judge Molloy applied intermediate scrutiny, he still held the statute likely violated the First Amendment, finding neither important government interests, nor sufficient tailoring.
Regarding the first prong, Molloy rejected three of Montana’s purported interests. The preamble of SB 419 stated two purposes: national security and protecting Montana’s youth. Molloy flatly rejected that national security could be an important Montana state interest, writing, “The State posits there is nothing precluding a state from legislating in the field of national security. The Founding Fathers may have viewed that proposition skeptically considering the Constitution’s particular provisions.” He thus held that foreign policy and national security interests could never justify a state suppressing speech. Regarding the preamble’s reference to child-protection, Molloy acknowledged that “child-protection … may be an important state interest,” though he also stated that merely restricting children’s exposure to certain ideas cannot be a state interest. Regardless, Molloy did not address this purported state interest because Montana abandoned the argument by not arguing it in the case. Instead, Montana argued that its important interest was consumer protection, that is, protecting Montanans’ data. Molloy rejected this argument as well, because Montana had “yet to provide any evidence to support its argument.”
Although Montana’s failure to posit important government interests was sufficient to doom SB 419, Judge Molloy also analyzed the second prong: narrow tailoring. He declared that the state failed to demonstrate that it was not burdening more speech than was necessary to achieve its ends. According to the opinion, the only justification Montana offered on this point was TikTok’s noncompliance with a multistate investigation, but Molloy found it “unclear how this single investigation into TikTok warrants a complete ban on the application.” Second, the court found that SB 419 was not narrowly tailored, because Montana had failed to show that the ban would alleviate the harms it sought to address. Molloy determined that, even if SB 419 passed, China would be able to access data on Montanans through other means, and children would still be able to access dangerous content on the internet. Finally, Molloy faulted Montana for offering no evidence that “TikTok is similar enough to other social media applications that they may be considered alternative channels of communication.”
The Texas Case
In the Texas case, the Coalition for Independent Technology Research, “a group of academics, journalists, civil society researchers, and community scientists,” had challenged the Texas TikTok ban for impeding TikTok-related research and teaching in classrooms.
Once again, it is worth noting as a preliminary matter that TikTok (and the coalition) got lucky in the selection of Judge Pitman to oversee the case. Pitman has in recent years issued two strong pro-First Amendment rulings, in cases somewhat analogous to the coalition’s suit, suggesting that he would be sympathetic here. On March 30, 2023, Pitman issued a preliminary injunction, after applying strict scrutiny, requiring Llano County Library to return LGBTQ-related books it had removed. Even more relevant here, on Dec. 1, 2021, Pitman enjoined a Texas statute that purported to bar social media companies from censoring users in NetChoice, LLC v. Paxton, a case now before the Supreme Court. Despite these cases that show Pitman to be sympathetic to First Amendment plaintiffs and willing to enjoin major state actions, Pitman dismissed the coalition’s suit.
After addressing issues of sovereign immunity and standing, Pitman turned to the First Amendment issues at stake. He acknowledged the importance of the First Amendment generally and the “extra protection under the First Amendment” for public university faculty, because they are both academics and public employees. Nonetheless, he rejected the plaintiffs’ request to apply a First Amendment test traditionally used for public employees, which limits speech restrictions to those “necessary for their employers to operate efficiently and effectively.” Instead, he applied the lenient “nonpublic forum” analysis, because “the ban relates to Texas’s regulation of its own governmental property,” that is, a private forum. Pitman distinguished the state-device ban from the more sweeping Montana ban that triggered intermediate scrutiny. Crucially, the court held that the Texas restriction was “viewpoint neutral,” because it did not apply to only certain faculty members or to only certain uses of TikTok. Pitman found Texas’s limitation to TikTok only favored the university because it suggested a limited scope, rather than discrimination. To survive the nonpublic forum test, the regulation need only be “reasonable in light of the purpose which the forum serves.” Pitman went on to find the regulation “reasonable,” given its limitation to university-owned devices, in light of Texas’s “data privacy concerns.” Pitman ultimaley reasoned that even accepting the coalition’s claim that Texas’s data-privacy concerns were not yet verified, “Texas need not wait until havoc is wreaked to restrict access to a nonpublic forum.”
When considering the fate of a potential future federal TikTok ban/divestment bill in court, it is useful to consider how the deeply skeptical reasoning of Judge Molloy’s preliminary injunction opinion would apply in such a future case.
A preliminary point to note is that the specifics of SB 419’s text and history that Molloy dinged Montana for may not apply to a federal ban. For example, the statute specifically stated a concern that TikTok “fails to remove, and may even, promote, dangerous content that directs minors to engage in dangerous activity” and proceeded to list some of this problematic dangerous content—thus giving TikTok a very strong argument that the statute was content based. Molloy was also able to point to legislative history, which similarly suggested improper motives, such as the attorney general’s suggestions that banning TikTok in Montana was necessary because TikTok was “an initial salvo in” the “inevitable” war between the United States and China. In the litigation itself, Montana made a couple of mistakes that undermined its case, apart from the merits. For example, as seen, Montana forfeited its child protection argument by not arguing it in its briefing, and Molloy found that Montana had “yet to provide any evidence to support its argument” for consumer protection, nor did it provide substantial evidence regarding the existence of “alternative channels.” The Department of Justice, however, is well resourced and far more experienced in arguing complex constitutional law and national security cases in federal court and so is unlikely to forfeit arguments by omitting them in briefing, shift their arguments for the statute’s constitutionality during litigation, or fail to offer evidence in support of their arguments. But the better-resourced Justice Department may well be able to point to the flowering of platforms very similar to, and modeled off, TikTok, such as Instagram Reels and YouTube Shorts.
When it comes to a federal ban, Molloy’s reasoning would not help TikTok. First, the bill of attainder argument would again be rejected. Second, neither the preemption nor Dormant Commerce Clause argument would be applicable in the federal context, leaving only the First Amendment analysis. When it comes to First Amendment analysis, virtually none of Molloy’s intermediate scrutiny analysis would likely hinder a federal ban.
On the first prong, the federal government is likely to focus on two important government interests. The first, and most important, is the national security rationale. National security is irrefutably an important government interest at the federal level, in contrast to at the state level, where it is of lesser direct concern. Indeed, national security is generally considered the preeminent federal government interest, and courts give the federal government substantial deference on national security matters. For example, in Holder v. Humanitarian Law Project (2010), the Supreme Court sustained a federal statute criminalizing speech-related support to terrorist organizations, such as legal services and advice. Notably, the Court applied a more stringent scrutiny than Judge Molloy, because the statute was content based. Nonetheless, the Court deferred to congressional and executive factual findings, as the case “implicate[d] sensitive and weighty interests of national security and foreign affairs.” While the Court held that it does not “defer to the Government’s reading of the First Amendment, even when such interests are at stake, … when it comes to collecting evidence and drawing factual inferences in this area … respect for the Government’s conclusions is appropriate.” Therefore, the Justice Department would likely fare far better in federal litigation than Montana.
A similar argument involves federal elections. While the First Amendment protects Americans’ access to foreign propaganda, the United States has an important interest in limiting foreign influence in elections. In Bluman v. FEC (2011), then-D.C. Circuit Judge Brett Kavanaugh upheld the total ban on foreign persons engaging in election spending in the United States. The Supreme Court summarily affirmed, so its outcome carries precedential weight. Following Citizens United v. FEC (2010), Bluman recognized that election spending was protected First Amendment speech and notably applied strict scrutiny. Nonetheless, the Court held that “the United States has a compelling interest for purposes of First Amendment analysis,” that is, even greater than the “important” interest required under intermediate scrutiny, “in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”
Given the U.S. intelligence community assessment in 2022, which purports “high confidence” that China seeks to influence U.S. elections by supporting pro-China candidates and opposing anti-China candidates, the State Department’s public finding that China uses ByteDance’s control of TikTok to censor globally, and an independent study from December 2023 showing that the prevalence of content on TikTok aligns with the CCP’s geopolitical goals, this is another argument available to the federal government that was unavailable to Montana. Therefore, under Judge Molloy’s intermediate scrutiny, the United States will likely be able to point to important government interests that would get a high degree of deference and satisfy intermediate scrutiny.
On the tailoring prong—whether the TikTok ban burdens substantially more speech than necessary—the federal government once again has a key argument unavailable to Montana. In particular, the federal government can argue that two presidential administrations, of different parties, over several years, concluded there was no mitigation agreement with TikTok that would resolve the national security concerns it posed. For TikTok to prevail on this prong, a federal court would have to decide that, despite the deference usually shown to the federal government in national security matters and despite the interagency consensus to the contrary, there is actually a way to solve the national security concerns short of a federal ban or ByteDance’s divestment. Under Molloy’s intermediate scrutiny, instead of having to show that the statute was the “least restrictive means,” the federal government would merely have to show that there was no other way of satisfying the government’s interests that did not burden substantially less speech. The federal government would, thus, probably be able to satisfy the narrow tailoring prong under Molloy’s reasoning.
What’s more, while Judge Pitman’s opinion in Texas is less relevant to a future federal ban, several points are of note that are mostly bad news for TikTok. First, the reasoning would strongly support the federal government’s government-device TikTok ban, as well as any other states’ or universities’ similar bans. Second, although Pitman was careful to distinguish his opinion from the broader Montana case, his finding that Texas’s ban was viewpoint neutral would presumably mean that he would follow Molloy in applying intermediate, rather than strict, scrutiny to a full ban. The federal government is far more likely to satisfy intermediate scrutiny.
While TikTok can no doubt celebrate its victory over Montana’s SB 419, the reasoning of the decision suggests the company may not fare as well when challenging a future federal bill. If the federal government ever acts against TikTok, Judge Molloy’s decision suggests the courts may not be of much help to the platform.
– Adam Chan, Published courtesy of Lawfare.