A group of TikTok creators in Montana have filed a lawsuit challenging the state’s new ban of the app, arguing that the law signed by Governor Greg Gianforte violates their First Amendment rights.
The ban signed by Gov. Gianforte on Wednesday is the first state-level ban of the social media platform. The complaint was filed just hours later in the U.S. District Court for the District of Montana Wednesday evening.
The lawsuit asserts that TikTok is comparable to other forms of media, which the state does not have the authority to keep Montanans from accessing and contributing to.
“Montana can no more ban its residents from viewing or posting to TikTok than it could ban the Wall Street Journal because of who owns it or the ideas it publishes.”
The group of creators stated that the new ban, set to take effect in January 2024, goes far beyond restrictions already in place in Montana and other states.
Other states have prohibited the use of TikTok on government devices, citing a potential threat to national security because of TikTok’s ties to China via its parent company ByteDance. The Montana ban extends to personal devices, making it illegal for TikTok to operate the app and for the Apple and Google app stores to offer it for download within state lines.
According to the law, TikTok could be fined $10,000 for each violation of the ban, plus another $10,000 for each day the infraction persists. Google and Apple may face the same fines.
A spokesperson for Gov. Gianforte said in a statement that the Governor’s decision was motivated by wanting to protect “Montanans’ personal and private data being harvested by the Chinese Communist party.”
“While the Chinese Communist Party may try to hide their nefarious spying and collection of individuals’ personal, private, sensitive information under the banner of our First Amendment, the governor has an obligation to protect Montanans and their individual privacy right, as guaranteed by the Montana Constitution, from the Chinese Communist Party’s serious, grave threats.”
TikTok’s CEO, Shou Zi Chew, has stated that the Chinese government has never asked TikTok for its data on users in the U.S. There has also been no evidence to suggest otherwise.
Emily Flower, a spokeswoman for Montana Attorney General Austin Knudsen, released a statement saying that the office expects a legal challenge but is “fully prepared to defend the law.”
Emilee Cantrell, another spokeswoman for the Attorney General’s office, told The New York Times that the state would enforce the ban through “geo-fencing,” which is “already in use across the gaming industry.”
“A basic internet search will show you companies that provide geolocation compliance. If companies do not comply with the ban, the agency will investigate and hold offending entities accountable in accordance with the law.”
In addition to citing the First Amendment, the lawsuit argues that Montana’s ban violates the Fourteenth Amendment by depriving TikTok users of other rights without due process.
It also asserts that the new law violates federal authority to set foreign policy and regulate interstate commerce, undermining the federal government’s powers under the International Emergency Economic Powers Act.
The American Civil Liberties Union described the ban as “unconstitutional.” Ramya Krishnan, a lawyer at the Knight First Amendment Institute at Columbia University, told The New York Times that to justify a ban and have it hold up to legal scrutiny, the state would have to demonstrate its security concerns are real.
“Many have hypothesized that China might demand that ByteDance, TikTok’s parent company, turn over Americans’ data or use TikTok to push disinformation in some way, but neither Montana nor the U.S. government has pointed to any evidence that China is actually doing this. That’s a problem because speculative harms can’t justify a total ban on a communications platform, particularly one that’s used by hundreds of thousands of Montanans daily.”
TikTok told Reuters that the new measure “infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok.”
“We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living and find community as we continue working to defend the rights of our users inside and outside of Montana.”
The five plaintiffs who filed the lawsuit include a former Marine sergeant, a rancher, a swimwear business, and an exercise influencer.
Moumita Basuroychowdhury is a Contributing Reporter at The National Digest. After earning an economics degree at Cornell University, she moved to NYC to pursue her MFA in creative writing. She enjoys reporting on science, business and culture news. You can reach her at firstname.lastname@example.org.