TikTok’s recent court victories show just how hard it might be to ban the app

Analysis By Brian Fung and Catherine Thorbecke, CNN

(CNN) — A pair of back-to-back court victories for TikTok this week have threatened to make it harder for the company’s critics to clamp down on it, after a state judge in Indiana threw out one lawsuit against the popular short-form video app and a federal judge blocked a first-of-its-kind Montana law that would have banned the app statewide.

Neither case has reached a final outcome. But the early-stage results in both states show that when the hot-button politics of TikTok came face-to-face with the most fundamental basics of American law, the politics lost.

In both cases, efforts to crack down on TikTok failed to pass rudimentary checks such as whether they complied with the First Amendment or whether the court even had jurisdiction in the matter, according to Thursday’s rulings.

Those results reveal how the state attempts to regulate TikTok “are clearly pretextual and designed for political theater,” Eric Goldman, a law professor at Santa Clara University, told CNN. “So when you put them in front of a non-political decisionmaker, they look ridiculous.”

That the states’ could not clear even the most elemental legal hurdles highlights the challenge ahead for policymakers who are struggling to articulate a concrete problem their legal tools can solve.

How we got here

The two cases have different origins. The lawsuit in Indiana sought court-ordered fines and restrictions on TikTok for allegedly violating state consumer protection laws. The Montana suit was brought by TikTok and a group of content creators after the state enacted a bill, SB419, that would have prohibited the app from operating on personal electronic devices within state lines.

Both cases reflected concerns expressed by government officials at all levels in the United States about TikTok’s ties to China through its parent company, ByteDance. Policymakers have alleged that Chinese intelligence laws could force ByteDance to expose TikTok’s US user data to the Chinese government, but so far US officials have not publicly presented any concrete evidence of unauthorized government data access.

Calls for a TikTok ban in the US first arose during the Trump administration and have waxed and waned in the years since, but most attempts to ban the app have been challenged in court. The only government bans that have been effective at limiting TikTok have been those at the federal and state levels targeting its use on official government devices. But millions of personal devices in the United States can still freely access TikTok.

All the while, TikTok has only cemented its vast and growing reach in the country. TikTok announced earlier this year that it reached the milestone 150 million monthly active users in the United States. And an increasing number of creators, small business owners and other TikTok users are now relying on the platform for their livelihoods.

The dependence some creators have on TikTok makes it a direct infringement of their First Amendment rights to ban the app in Montana, District Judge Donald Molloy wrote in his opinion Thursday.

“In shutting off TikTok, the Legislature has both harmed User Plaintiffs’ First Amendment rights and cut off a stream of income on which many rely. Thus, Plaintiffs have established a likelihood of irreparable harm” from the law, Molloy wrote.

Patrick Toomey, deputy director of the American Civil Liberties Union’s National Security Project, said the Montana ruling shows how the US Constitution “imposes an extraordinarily high bar on this kind of mass censorship.”

Why the state-level efforts sputter

Overlooked amid the constitutional findings may be a more subtle, yet no less powerful, theme in both cases: states have tried to make a national issue into a local one and, in the process, exceeded their authority.

In the Montana case, Molloy made this critique clear when he tore into the state’s stated justification for passing SB419 — that Montana had a legitimate “state interest” in protecting residents from Chinese espionage.

“SB419 explicitly bans TikTok because of its direct connection to a specific foreign nation,” Molloy wrote. “[But] Montana does not have constitutional authority in the field of foreign affairs.”

The Indiana ruling backs into the same conclusion, finding that even though state officials made numerous allegations that TikTok misled the public about its business practices, the state failed to prove any connection to Indiana that might give the state court jurisdiction over the company.

“There are no allegations that Indiana users even heard these alleged misstatements, let alone relied on them when deciding to download and use the TikTok platform,” Judge Jennifer DeGroote wrote in her opinion.

DeGroote added that just because TikTok “is available to Hoosiers through third-party app stores” does not mean the court has jurisdiction over TikTok either, “because the State does not allege that TikTok specifically targeted Indiana.”

Together, the rulings lay out significant limitations on how those states can go after TikTok, constraining policymakers’ ability to target the company by way of either its ties to China or by reference to loud public criticism of the app.

What comes next

Ultimately, the state-level efforts in Indiana and Montana failed for many reasons, Goldman said, and policymakers should take note of this. “It’s a panoply of legal hurdles that anti-TikTok efforts must jump through, and there’s just no way to get through all of them,” he said.

Because of how clear-cut and well-reasoned the judges’ opinions were on many of the core legal principles, said Blake Reid, a law professor at the University of Colorado, there was little need for them to weigh in on the central political argument at the center of the cases: Whether TikTok really is a danger to the public.

“These are both judges who likely are trying to avoid wading into the political fight,” said Reid, adding that the Montana opinion in particular “is a very efficient dismantling of a high-profile, politically charged law” and uses a tight and narrow approach to reach a result “without breaking too much new ground” that might leave an opening for a successful appeal.

Other courts will likely take note of the Montana injunction, said Goldman. It won’t be considered a precedent, exactly, but Molloy’s argument will be persuasive to other judges reviewing similar cases, he said. The Indiana decision is less likely to have a nationwide impact, Goldman added, simply due to the typical obscurity of state court rulings and how state laws differ from one jurisdiction to another.

Rather than risk running afoul of the Constitution with TikTok-specific bans and limitations, Goldman said, policymakers should reinvigorate efforts to enhance Americans’ data privacy rights more broadly, applying uniform rules to all internet companies to prevent unauthorized access to that data by any government — Chinese or otherwise.

“The fact that social media apps are a giant machine for gathering information that is of substantial interest to governments means we really need to have a social reconciliation about how do we restrict, if appropriate, the collection of data,” he said. “And, certainly, how do we restrict government access to that data.”

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