May 3, 2024 2 min read

TikTok returns to court in ongoing bid to block Montana ban

TikTok has filed new legal papers with the Ninth Circuit Appeals Court as part of ongoing efforts to block a TikTok ban that was introduced in the US state of Montana. It sets out some of the arguments TikTok will use in court when trying to block the new US-wide sell-or-be-banned law

TikTok returns to court in ongoing bid to block Montana ban

As TikTok gets ready to fight the new sell-or-be-banned law in the US through the courts, it has filed new documents as part of its ongoing litigation fighting another ban that is specific to the state of Montana. Both TikTok and a group of its users successfully stalled that ban in the courts on free speech grounds, but Montana's Attorney General is now trying to unstall the stall through the Ninth Circuit Appeals Court. 

The state argues that banning TikTok only “regulates conduct” and not the speech or expression of the social media platform’s users. But, says a new filing from a group of those users, this is a “false premise" that "infects the state’s entire argument and, once debunked, dooms its defence of the act”. 

That the TikTok ban “regulates speech cannot be seriously disputed”, they continue, because the law bans “a means of expression” on which TikTok users rely and thus “inevitably affects communication itself”. 

In its own filing, TikTok itself also pushes back at the state’s core argument. “By banning TikTok, the state is necessarily banning the speech on TikTok - indeed, the whole point of using TikTok is for expression”, it argues. “The state cannot get around this reality by simply characterising the operation of TikTok as ‘conduct’”. 

The TikTok lawyers also argue that Montana's ban should remain blocked because the state has failed to show that “less-restrictive alternatives” could not have addressed the concerns of lawmakers. In particular, new stricter data protection laws. 

Lawmakers in Montana passed a law prohibiting the distribution of TikTok within the state last year. The law was in no small part motivated by concerns that the Chinese government has access to TikTok user data via the app's China-based owner ByteDance. US Congress has since passed its own US-wide law that bans the use of TikTok within the US unless ByteDance sells the app within 270 days of the law going into effect. 

TikTok has vowed to fight the US-wide law through the courts as well, relying heavily on the argument that Congress’s law breaches First Amendment free speech rights and is therefore unconstitutional. So, in many ways, by making the same arguments that have been employed to - so far successfully - block the ban in Montana. Though successful subject to the decision of judges in the Ninth Circuit Appeals Court, of course. 

That said, success in blocking the ban in Montana doesn't necessarily mean TikTok will succeed in overturning the US-wide sell-or-be-banned law. 

FCC Commissioner and frequent TikTok critic Brendan Carr recently told reporters that the Montana case is “not analogous” to any litigation aiming to block the new US-wide measures. That's because moves to ban a ByteDance owned TikTok are rooted in national security concerns, which arguably overstep state powers, but is an area where Congress definitely has authority. 

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