A group of TikTok creators has filed a lawsuit to block a recently signed law banning the app’s operation in Montana. The suit, filed last night and announced todayclaims that Montana’s SB 419 is an unconstitutional and overly broad violation of their right to free speech.
“Montana has no authority to enact laws that advance what it believes should be United States foreign policy or national security interests, nor should Montana prohibit an entire forum for communication based on its perception that some speech may forum was shared, although protected by the First Amendment, is dangerous,” says the lawsuit, filed by law firm Davis Wright Tremaine. “Montana can no more ban its residents from viewing or posting TikTok than it can Wall Street Journal because of who owns it or the ideas it publishes.”
Davis Wright Tremaine was behind a similar lawsuit brought by TikTok users in 2020 after then-President Donald Trump issued an executive order banning ByteDance’s app. Trump, like Montana lawmakers, claimed China’s ownership of TikTok made it a threat to national security. The company successfully secured a temporary halt to the order — which was later revoked by incoming president Joe Biden.
This week’s lawsuit attacks Montana law on several fronts. It argues that Montana denies state residents a forum for sharing and receiving speech, violating their First Amendment rights. It also argues that SB 419 violates the Commerce Clause by effectively restricting interstate commerce. And it says the law is preempted by federal sanctioning powers.
The lawsuit defends TikTok as a way to learn about current affairs, promote local businesses and “showcase the natural beauty of Montana,” counterpointing SB 419’s claims that the app encourages dangerous stunts and promotes inappropriate content. The accusers include the owner of a small swimwear business in Montana that has gained a following on TikTok, as well as a veteran of the US Marine Corps, a student, a farmer and a comedian, all of whom share videos and earn money through the app .
Restricting app access on a state-by-state basis presents numerous logistical problems for TikTok, mobile app stores, and users. SB 419 says TikTok “may not work” in the state of Montana and storefronts such as the iOS App Store and Google Play Store may not offer it for download at risk of fines. (Users would not be penalized for accessing TikTok.) As noted in the lawsuit, Governor Greg Gianforte unsuccessfully attempted to rewrite the bill to address concerns before signing it into law. The law would be overturned if TikTok is spun off from Chinese ownership or if federal lawmakers pass their own TikTok ban, such as the RESTRICT law. Otherwise, it will take effect in January 2024 – unless this legal challenge, or a similar one, successfully blocks the rule.