A group of TikTok creators is suing to block a recently signed law banning the operation of the app in Montana. The case, filed last night and announced todaysay Montana’s SB 419 is unconstitutional and an overbroad violation of their free speech rights.
“Montana has no authority to enact laws advancing what it believes to be the necessary foreign policy of the United States or its national security interests, nor can Montana prohibit an entire forum for of communication based on its views shared by certain speech through that forum, although protected by the First Amendment, is dangerous,” says the lawsuit, filed by law firm Davis Wright. Tremaine. “Montana can no more ban residents from viewing or posting on TikTok than banning it Wall Street Journal because who owns it or the ideas it publishes.”
Davis Wright Tremaine is behind a similar lawsuit filed by TikTok users in 2020 after President Donald Trump issued an executive order banning the ByteDance-owned app. Trump, like Montana lawmakers, claims that China’s ownership of TikTok makes it a national security threat. The company successfully obtained a temporary stay of the order — which was later revoked by incoming President Joe Biden.
This week’s lawsuit attacks Montana’s law on several grounds. It argued that Montana deprived state residents of a forum for sharing and receiving speech, violating their First Amendment rights. It also argued that SB 419 violates the Commerce Clause by effectively restricting interstate commerce. And it says the law is preempted by federal sanctioning powers.
The suit defends TikTok as a way to learn about current events, promote local businesses, and “showcase the natural beauty” of Montana, offering a counter to the claims of SB 419 that the app encourages dangerous stunts and promotes inappropriate content. Its plaintiffs include the owner of a Montana-based small swimwear business that gained a following on TikTok, as well as a US Marine Corps veteran, a college student, a rancher, and a comedian, who all share videos and earn money through the app.
Restricting access to the app on a state-by-state basis raises many logistical problems for TikTok, mobile app stores, and users. SB 419 states that TikTok “may not operate” within the state of Montana and that storefronts such as the iOS App Store and the Google Play Store may not offer it for download at risk of fines. (Users will not be penalized for accessing TikTok.) As noted in the lawsuit, Governor Greg Gianforte unsuccessfully tried to rewrite the bill to address concerns before signing it. The law will be declared void if TikTok is separated from Chinese ownership or if federal lawmakers pass their own restrictions on TikTok such as the RESTRICT Act. Otherwise, it is set to take effect in January of 2024 — unless this legal challenge, or one like it, successfully blocks the rule.