The federal lawsuit will set the stage for a broader debate over the short-video app and its Chinese parent company, ByteDance.<\/b>
\nThe popular video app TikTok sued Montana on Monday, saying the state\u2019s new law banning the app statewide would violate Americans\u2019 First Amendment right to free expression.
The federal lawsuit will set the stage for a broader debate over the short-video app and its Chinese parent company, ByteDance, which some critics in the United States have said is vulnerable to Chinese government propaganda and espionage.
The lawsuit seeks to overturn the law, which Gov. Greg Gianforte (R) signed last week and is set to go into effect Jan. 1. The legal challenge will probably delay the measure.
Gianforte said the law would \u201cprotect Montanans\u2019 private data and sensitive personal information from being harvested by the Chinese Communist Party.\u201d Neither Montana officials nor the U.S. government has supplied evidence supporting that claim.
TikTok, which says it has 150 million monthly active users in the United States, said in its lawsuit that the state\u2019s \u201cextraordinary and unprecedented measures [are] based on nothing more than unfounded speculation.\u201d
In a statement, TikTok spokeswoman Brooke Oberwetter said that the company is \u201cchallenging Montana\u2019s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana\u201d and that it believes its case \u201cwill prevail based on an exceedingly strong set of precedents and facts.\u201d
The lawsuit cited TikTok data from March to estimate that roughly 110,000 monthly active users accessed TikTok around Missoula, the home of the public University of Montana and the second-largest metropolitan area in the state.
Montana officials did not immediately respond to requests for comment.
In its complaint, TikTok says Montana\u2019s ban violates not only the company\u2019s First Amendment rights on \u201cwhether, and how, to host, disseminate, and promote third-party speech created by others,\u201d but also the free-speech rights of its users by \u201cunconstitutionally shutting down the forum for speech for all speakers on the app.\u201d
Five TikTok creators in Montana also cited First Amendment protections when they sued Montana last week over the ban.
\u201cMontana has no authority to enact laws advancing what it believes should be the United States\u2019 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,\u201d the lawsuit states.
Federal judges supported a similar argument when they blocked President Donald Trump\u2019s executive order banning TikTok and the Chinese app WeChat in 2020, saying the U.S. government had provided \u201cscant little evidence\u201d to justify a ban that would \u201cburden substantially more speech than is necessary.\u201d
TikTok\u2019s lawsuit also argues that Montana\u2019s ban would preempt federal law by intruding upon matters of national concern, including domestic security and foreign affairs.
TikTok is negotiating with the Committee on Foreign Investment in the United States, a cross-government group that reviews foreign business deals, on data-security measures that the company hopes will allow it to remain operational in the United States.
Some in the Biden administration have pushed ByteDance to sell TikTok, arguing divestiture is the only measure that would resolve their concerns over foreign influence.
TikTok\u2019s lawsuit argues that Montana\u2019s ban would violate the Constitution\u2019s Commerce Clause, which restricts state laws that could impair the flow of business across state lines.
It also accuses Montana of an \u201cunconstitutional bill of attainder\u201d by passing a law that would single out TikTok for punishment \u201cbased on speculative concerns,\u201d rather than approving a more general law that would cover all social media companies or regulate the practices of the industry at large.
Civil rights and free-expression groups have argued that TikTok presents a compelling case. Seth Stern, a director at the Freedom of the Press Foundation, wrote in March that \u201ccensoring communications from foreign countries \u2014 let alone entire platforms \u2014 is plainly unconstitutional\u201d and called on the courts to strike any such measure down.
The law would ban TikTok from operating in the state and impose $10,000-a-day fines on any \u201centity,\u201d such as the Apple and Google app stores, that allows people in Montana to download the app.
Tech experts told The last week that the proposal is \u201ctechnically incompetent\u201d due to several factors, including that the app stores don\u2019t keep track of everyone who crosses the Montana state line.
And Carl Tobias, a professor at the University of Richmond\u2019s law school, said TikTok\u2019s lawsuit makes several compelling arguments and that he expects the federal judges ruling on it may take the company\u2019s side.
\u201cIt\u2019s a pretty clear violation of the First Amendment, which requires strict scrutiny and narrowly tailored laws, which this ban is clearly not,\u201d Tobias said in an interview. \u201cThe argument about this impairing the free flow of commerce between the states is a strong argument. As is the one about national security, which is clearly within the purview of the president and the Congress, not individual states. It\u2019s a very strong case.\u201d<\/p>\n