A federal court on Thursday blocked Montana’s effort to ban TikTok from the state, ruling that the law violated users’ First Amendment rights to speak and to access information online, and the company’s First Amendment rights to select and curate users’ content. 

Montana passed a law in May that prohibited TikTok from operating anywhere within the state and imposed $10,000 penalties on TikTok or any mobile application store that allowed users to access TikTok. The law was scheduled to take effect in January. EFF opposed enactment of this law, along with ACLU, CDT, and others. 

In issuing a preliminary injunction, the district court rejected the state’s claim that it had a legitimate interest in banning the popular video sharing application because TikTok is owned by a Chinese company. And although Montana has an interest in protecting minors from harmful content and protecting consumers’ privacy, the law’s total ban was not narrowly tailored to address the state’s concerns.

“SB 419 bans TikTok outright and, in doing so, it limits constitutionally protected First Amendment speech,” the court wrote. 

EFF and the ACLU filed a friend-of-the-court brief in support of the challenge, brought by TikTok and a group of the app’s users who live in Montana. The brief argued that Montana’s ban was as unprecedented as it was unconstitutional, and we are pleased that the district court blocked the law from going into effect. 

The district court agreed that Montana’s statute violated the First Amendment. Although the court declined to decide whether the law was subject to heightened review under the Constitution (known as strict scrutiny), it ruled that Montana’s banning of TikTok failed to satisfy even less-searching review known as intermediate scrutiny.

“Ultimately, if Montana’s interest in consumer protection and protecting minors is to be carried out through legislation, the method sought to achieve those ends here was not narrowly tailored,” the court wrote.

The court’s decision this week joins a growing list of cases in which judges have halted state laws that unconstitutionally burden internet users’ First Amendment rights in the name of consumer privacy or child protection.

As EFF has said repeatedly, state lawmakers are right to be concerned about online services collecting massive volumes of their residents’ private data. But lawmakers should address those concerns directly by enacting comprehensive consumer data privacy laws, rather than seeking to ban those services entirely or prevent children from accessing them. Consumer data privacy laws both directly address lawmakers’ concerns and do not raise the First Amendment issues that lead to courts invalidating laws like Montana’s.

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