HELENA — Next week, the U.S. Supreme Court is set to hear arguments over whether to uphold a federal law that would ban the app TikTok if its Chinese owners don’t sell it. Montana’s attorney general is asking the court to let the law go into effect – even as President-elect Donald Trump seeks to delay it.
“I think Congress got it right this time – I don't often say that, but I think Congress got this one right,” Attorney General Austin Knudsen told MTN.
Last spring, on a bipartisan vote, Congress approved a law that gave TikTok’s parent company nine months to divest the app or risk losing access to U.S. app stores and internet hosting services. That deadline is approaching, on Jan. 19 – the day before Trump’s inauguration.
TikTok sued over the federal law, on the grounds that it infringed on the right of free expression for its millions of users. The Supreme Court agreed to hear the case and scheduled oral arguments for Jan. 10, leaving just a few days before the effective date.
On Friday, Knudsen and 21 other Republican state attorneys general filed an amicus brief, asking justices to let the law take effect.
“Allowing TikTok to operate in the United States without severing its ties to the Chinese Communist Party exposes Americans to the risk of the Chinese Communist Party accessing and exploiting their data,” they wrote.
Knudsen's Amicus Brief:
At the same time, Trump’s attorneys submitted their own brief. In it, they said they weren’t taking a position on the merits of the case, but that they wanted the court to put a stay on the law, to give Trump time to reach a deal once in office that could resolve the issue “through political means.”
“President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged,” they wrote.
While Trump’s brief didn’t support either side in the lawsuit, it did suggest there were “valid concerns” about First Amendment implications from blocking a social media platform.
Trump's Amicus Brief:
In 2023, the Montana Legislature passed and Gov. Greg Gianforte signed Senate Bill 419, which said TikTok couldn’t operate in the state and app stores couldn’t offer it for download within Montana’s borders. Knudsen was one of the main backers of the law, and he cited concerns that China might be able to access U.S. users’ data. TikTok is owned by ByteDance, a company based in China, but has denied any claims that it puts data at risk.
TikTok and a group of Montana-based content creators challenged the state ban. A federal district judge issued a preliminary injunction blocking it, ruling that the state infringing on users’ rights and overstepping onto the federal power over foreign policy. Knudsen appealed that decision, but the entire case was put on hold until the challenge to the federal law was resolved.
Knudsen said what the Supreme Court rules in the federal case will clearly make a difference when it’s time to rule on Montana’s ban. In his amicus brief, he accused TikTok of “trying to have its cake and eat it too” by arguing the state law intruded on federal authority but also challenging the federal law.
In 2020, during his first term as president, Trump issued an executive order that sought to ban TikTok, citing its connections to China. However, during his 2024 campaign, he spoke more favorably about the app, eventually saying people who wanted to “save TikTok in America” should vote for him.
Knudsen told MTN that he doesn’t believe Trump’s change in tone has had an impact on the concerns Montanans have about the app.
“Actually, if you look at what President Trump has said in his public statements, he likes the platform because he was able to reach a lot of young people and he thinks that helped him get elected,” he said. “But if you read that brief that they filed, they don't dispute the fact that TikTok is a Chinese spying application.”
While China was the biggest topic during the debate over Montana’s SB 419, the law also criticized TikTok for what it said was promoting dangerous content for minors. Knudsen filed a lawsuit against the app and its owners earlier this year, making similar arguments. He told MTN Monday he’d have to “wait and see” what form a divestiture of TikTok would take, before he could say whether it would address those issues to his satisfaction.
While the U.S. Supreme Court typically doesn’t rule quickly on cases, Knudsen said he expects that may be different this time.
“We don't often see them move this fast, but I think the Roberts court probably recognizes that this is an important issue – it’s a hot issue for certain,” he said.
