A group of TikTok creators have sued to block a recently signed law that bans the app’s operation in Montana. The suit, filed last night and announced today, alleges that Montana’s SB 419 is an unconstitutional and overly broad infringement of their right to speech.
“Montana has no authority to enact laws advancing what it believes should be the United States’ foreign policy or its national security interests, nor may Montana ban an entire forum for communication based on its perceptions that some speech shared through that forum, though protected by the First Amendment, is dangerous,” says the suit, filed by law firm Davis Wright Tremaine. “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.”
Davis Wright Tremaine was behind a similar suit filed by TikTok users in 2020 after then-President Donald Trump issued an executive order banning the ByteDance-owned app. Trump, like Montana lawmakers, claimed that TikTok’s Chinese ownership made it a national security threat. The firm successfully secured a temporary halt to the order — which was later revoked by incoming President Joe Biden.
This week’s lawsuit attacks the Montana law on several fronts. It argues that Montana is depriving state residents of 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 sanctions powers.
The suit defends TikTok as a way to learn about current affairs, promote local businesses, and “showcase the natural beauty” of Montana, offering a counterpoint to SB 419’s claims that the app encourages dangerous stunts and promotes inappropriate content. Its plaintiffs include the owner of a small Montana-based swimwear business that has gained a following on TikTok, as well as a US Marine Corps veteran, a college student, a rancher, and a comedian, all of whom share videos and make money through the app.
Restricting app access on a state-by-state basis raises numerous logistical problems for TikTok, mobile app stores, and users. SB 419 says that TikTok “may not operate” within the state of Montana and that storefronts like the iOS App Store and the Google Play Store may not offer it for download at risk of fines. (Users would not be penalized for accessing TikTok.) As noted by the lawsuit, Governor Greg Gianforte unsuccessfully attempted to rewrite the bill to address concerns before signing it. The law would be declared void if TikTok is spun off from Chinese ownership or if federal lawmakers passed their own TikTok ban like the RESTRICT Act. Otherwise, it’s set to take effect in January of 2024 — unless this legal challenge, or one like it, successfully blocks the rule.