TikTok, the popular universal short-form video phone application, is suing the state of Montana, alleging it has violated the First Amendment by abridging free speech.
Montana Governor Greg Gianforte, a Republican, on Wednesday signed state Senate Bill 419 into law, effectively banning the use of the app on all devices within state borders as of January 1, 2024. The legislation gained bipartisan support, passing the state House 54-43 on April 14 and the state Senate 30-20 on March 2.
"The Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private and sensitive information is well-documented," Gianforte, said at the bill signing. "Today, Montana takes the most decisive action of any state to protect Montanans' private data and sensitive personal information from being harvested by the Chinese Communist Party."
The risks associated with TikTok, owned by Chinese company ByteDance, have become more publicly proclaimed due to perceived threats from various spy balloons and "secret police stations" within the United States and across the world.
Its risks have been assessed by the U.S. Senate, pushed by Republican Senator Josh Hawley as part of the larger RESTRICT Act that has lost some support from both sides of the aisle due to a perceived retaliatory version of the U.S. stance on censorship, as stated by fellow Republican Rand Paul.
This lawsuit is an effort to prevent Montana Attorney General Austin Knudsen from enforcing the ban.
"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," reads the 62-page lawsuit filed Monday, which also alleges that the ban is preempted by federal law and also violates the U.S. Constitution's Commerce Clause.
The lawsuit refers to the enacting of "extraordinary and unprecedented measures based on nothing more than unfounded speculation," adding that the state of Montana in its legislation "cites nothing" to support allegations—such as the ban exposing minors to harmful online content, or that the People's Republic of China can access users' data.
TikTok's attorneys also say the platform has fostered a safe environment for all users, including teens.
"We are challenging Montana's unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana," Brooke Oberwetter, a TikTok spokesperson, told Newsweek via email. "We believe our legal challenge will prevail based on an exceedingly strong set of precedents and facts."
Oberwetter cited various opposition to the Montana ban, including by the American Civil Liberties Union (ACLU), which on Wednesday wrote: "With this ban, Governor Gianforte and the Montana legislature have trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment. We will never trade our First Amendment rights for cheap political points."
Another lawsuit has also been filed against Montana by TikTok creators and content viewers over alleged "attempts to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress."
Per the bill signed into law by Gianforte, the app can still be downloaded until the ban goes into effect next year. But after January 1, app stores cannot offer TikTok to be downloaded in Montana. It will institute fines of up to $10,000 for each violation, adding another $10,000 for each day that a violation continues.
Users will not be fined or face penalties.
"Defending Montanans' freedom and privacy from foreign adversaries like China is one of Senator [Jon] Tester's top priorities, and he's backed legislation to ban TikTok from government devices," a spokesperson for Tester told Newsweek via email. "He believes we need to prevent spying on Montanans, but believes those steps must be balanced with respecting Montanans' First Amendment rights."
Attorneys for TikTok deferred comment to Oberwetter.
Newsweek has reached out to attorneys for Gianforte and Montana bill sponsor Shelley Vance via email for comment.
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