A federal district judge voiced doubt over Montana’s “paternalistic” ban on TikTok during a hearing Thursday in the first courtroom challenge to the only statewide ban targeting the wildly popular video app.
TikTok sued Montana in May, saying the ban violated the First Amendment and was backed by no evidence of legitimate national security risks. During the suit’s first hearing in Missoula on Thursday, state attorneys argued the ban was vital to protect citizens against a Chinese-owned app with 150 million users nationwide.
U.S. District Judge Donald W. Molloy, a 77-year-old Montana native appointed by President Bill Clinton in 1996, concluded the hearing after about an hour by saying he would offer a preliminary resolution on the matter soon.
But 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,” the judge said. “You need to protect consumers from having their data stolen. But everybody on TikTok voluntarily gives their 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.”
Montana Gov. Greg Gianforte, a Republican, signed a law in May that would ban downloading the app starting next year, though experts have questioned whether the ban is technically enforceable.
The U.S. government and nearly 40 states have banned the use of the app on government-owned devices, but Montana goes further by forbidding its use by the general public.
Montana said TikTok, owned by Chinese tech giant ByteDance, offered too high a risk of foreign surveillance and propaganda. Montana Attorney General Austin Knudsen, a Republican, said in a statement then that the app was a “Chinese Communist Party spying tool that poses a threat to every Montanan.”
Molloy asked Montana’s attorneys, who were able to review documents from TikTok as part of a discovery process, whether they had found anything in those records to refute TikTok’s argument.
“We did not,” said the state’s solicitor general, Christian B. Corrigan.
TikTok sued to overturn the ban in May, saying the “extraordinary and unprecedented” measure was based on “nothing more than unfounded speculation.” TikTok argued that the state “cites nothing” to support its claims of Chinese data access and said the ban “ignores the reality that (TikTok) has not shared, and would not share, U.S. user data.”
TikTok’s legal challenge came a week after a group of TikTok creators sued, arguing the ban violated their free-speech rights and would damage their livelihoods. In July, a group of academics in Texas also sued their state over the ban on state-issued devices on constitutional grounds.
During the hearing Thursday, Corrigan argued that the “flat ban” was required to safeguard Montanans until TikTok “ceases its ties with China” and that it is the “only application that has a connection to a hostile foreign power.”
But Molloy pressed the state to answer what evidence it had to back its claims, questioning why Montana stood alone in banning the app for public use. “Does that seem a little strange to you?” he asked, comparing the state to someone in a marching band walking out of step.
He also 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, the attorney general, 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?”
Molloy also pressed TikTok’s lawyers on legal and technical questions of whether the state had to have evidence for the ban to be valid.
“Is there some prohibition for a legislature enacting legislation that may not have any factual basis but is just an opinion of the law enforcement people or some other entity?” Molloy said. “Do they actually have to have facts to make legislation, or are they free to do whatever they want if it’s within … the Constitution?”
TikTok’s lawyers cited past legal rejections, including of regulations targeting violent video games, in arguing that the state had to have some evidence on which to substantiate a law regulating protected speech.
Molloy, a former Navy lieutenant, is perhaps best known for ruling to overturn Fish and Wildlife Service officials in returning wolves from Montana and Idaho to the endangered species list.
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