A court battle over First Amendment rights kicked off in Montana on Thursday after a group of TikTok users challenged the state’s new TikTok ban, which will go into effect Jan. 1.
TikTok user says in litigation The law violates their First Amendment rights and claims Gov. Greg Gianforte’s injunction signed Wednesday far exceeds Montana’s legal authority as a state. The lawsuit was filed in U.S. District Court on Wednesday but was added to the public court record system on Thursday.
The ban also sparked outcry from TikTok as well as civil liberties and digital rights groups. Mr. Gianforte, a Montana lawmaker and Republican, said the ban was necessary to keep Americans’ personal information from falling into the hands of the Chinese government. TikTok is owned by Chinese company ByteDance.
Under the law, TikTok would be fined for operating the app in the state, and app store providers like Google and Apple would be fined if TikTok were available for download in Montana.
Neither TikTok itself nor leading civil liberties groups announced any plans for a lawsuit Thursday. TikTok spokeswoman Brooke Oberwetter declined to comment on the possibility of the company filing a lawsuit.
But Ms. Oberwetter said Wednesday that after the law was signed, the ban violated the First Amendment rights of Montana people and that the company would continue to “work hard to defend the rights of our users.” She said Thursday that the 2020 federal ban does not stand up to legal scrutiny and that Montana has no viable plan to implement it.
Ms Oberwetter also pointed to statements by civil and digital rights groups raising similar concerns. TikTok did not immediately respond to a request for comment on the lawsuit.
Ramya Krishnan, an attorney at Columbia University’s Knight First Amendment Institute, said the U.S. Constitution protects the right of Americans to access the social media platforms of their choice. Ms. Krishnan said that to justify the ban, Montana would have to demonstrate that its privacy and security concerns are real and cannot be addressed in a more narrow fashion.
“I don’t think TikTok has committed to suing, but I think it’s likely to do so,” she said. “Because this is such a dramatic and unconstitutional violation of Americans’ First Amendment rights, we are certainly looking at the possibility of engaging in some way.”
NetChoice, a trade group that counts TikTok as a member and has sued in the past to block state laws targeting tech companies, also said in a statement that the ban was unconstitutional. Krista Chavez, a spokeswoman for the group, said NetChoice “has no current plans to sue” to challenge the law.
The plaintiffs in Montana are five residents who “created, posted, viewed, interacted with and shared videos on TikTok,” their lawsuit says. Their lawyers did not immediately respond to a request for comment.
The lawsuit says Montana “cannot ban its residents from viewing or posting on TikTok because of who owns The Wall Street Journal or the opinions it expresses.” Users also argue that the law violates a constitutional mandate that gives the federal government Exclusive power in matters of law and prohibited states from regulating interstate commerce.
TikTok users have successfully blocked bans from the app before. In 2020, a judge sided with a group of creators challenging President Donald J. Trump’s attempt to ban the app. TikTok and ByteDance have also filed separate lawsuits seeking to block the president’s actions.
Montana passed the law after the federal government and more than a dozen states banned the use of TikTok on government devices in recent months. Lawmakers and intelligence officials have said that because of TikTok’s ownership, it may be handing over sensitive user data to the Chinese government. They also argued that the app could be used to spread propaganda.
TikTok said it was never asked to provide, and has not provided, any U.S. user data to the Chinese government.
“Many have assumed that China might ask TikTok’s parent company, ByteDance, to hand over Americans’ data or use TikTok to somehow spread disinformation, but neither the state of Montana nor the U.S. government have pointed to any evidence that China is doing this Do it,” Ms Krishnan said. “This is a problem because speculative harm does not justify a complete ban on a communications platform, especially one that is used by hundreds of thousands of Montanans every day.”
In addition to the legal battle, many experts have raised questions about whether the law will be enforced. Internet users can use virtual private network software to disguise their location. Individuals living in border towns in Montana can access TikTok and other mobile apps through cell towers in neighboring states.
In an email, Emilee Cantrell, a spokeswoman for the state’s Attorney General Austin Knudsen, said technology exists to limit the use of apps in specific locations. Ms Cantrell said the technology, known as geofencing, “was used across the gaming industry” and was regulated by the state’s Department of Justice.
“A basic internet search will show you companies that offer geolocation compliance,” she says. If companies do not comply with the ban, she continued, the agency “will investigate and hold the violating entity accountable in accordance with the law.”
Asked about the lawsuit brought by the TikTok user, a second spokeswoman for Knudsen, who is named as a defendant in the suit, said late Thursday that his office “anticipates legal challenges” and is “well prepared.” Fully prepared to defend the law.”
The legislation places responsibility on TikTok, Apple and Google for enforcing the ban. Under the law, TikTok could be fined $10,000 for each violation of the ban, and $10,000 per day for continued violations. Apple and Google would face the same fine if they allowed the app to be downloaded in the state.
While state legislatures are considering a ban, trade groups representing Apple and Google say it’s impossible for the companies to restrict access to apps within a single state.
“The responsibility for determining where it can operate should rest with the app, not the app store,” David Edmonson, vice president of trade group TechNet, said in a statement Thursday.
Google and Apple declined to comment.
