TikTok sued the state of Montana Monday in an effort to overturn a first-of-its-kind law banning downloads of the app in the state. The lawsuit, which comes on the heels of other suits filed by Montanan TikTok creators, alleges the state’s law violates users’ freedom of speech and illegally singles TikTok out. If the law is allowed to take effect in January, the suit argues, it could deal a devastating blow to businesses and creators who rely on the app for their income.
“We are challenging Montana’s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana,” TikTok spokesperson Brooke Oberwetter said in an email. “We believe our legal challenge will prevail based on an exceedingly strong set of precedents and facts.”
The company claims the bill, which would fine app stores up to $10,000 per day for allowing downloads of the app in Montana, would shut down a major forum of speech and infringe on its users’ First Amendment speech protections. Montana lawmakers in favor of the bill say it’s necessary to protect Montanas’ from alleged but unproven surveillance by China, since TikTok is owned by Beijing-based ByteDance. TikTok’s lawyers, by contrast, say Montana has no business crafting legislation that attempts to influence US foreign policy or address national security concerns. Those types of actions, the lawyers say, should be left to the federal government. Crucially, the suit says Montana has failed to provide any evidence of supposed collusion between TikTok and the Chinese government, which serves as a main rationale for the law.
“These allegations are entirely false,” the suit reads. “[TikTok] has made clear, through its actions and statements, that it shares no U.S. user data with the Chinese government and will not do so in the future.”
TikTok also slammed Montana for writing the legislation in a way that specifically calls out the company by name, rather than attempting to address data concerns with social media more broadly. The company said this amounts to an illegal bill of attainder. Put simply, bills of attainder refer to laws that criminalize a specific person or individual and punish them without a trial. Those types of unjustified criminalization efforts are explicitly prohibited under the US Constitution.
“This unprecedented and extreme step of banning a major platform for First Amendment speech, based on unfounded speculation about potential foreign government access to user data and the content of the speech, is flatly inconsistent with the constitution,” the lawsuit reads.
The general consensus seems to be that Montana’s law is ridiculous and will be blocked by the courts, though these days you never know. This is wholly different than banning TikTok on state-owned devices and on collegiate WiFi networks. We can debate the wisdom of those things, but they’re clearly legal.
Montana’s law may be clearly unconstitutional, but other states and possibly the federal government may get in on the act, probably in less-illegal ways. There was at least one bill filed to ban TikTok in Texas, which took the approach of banning apps owned by companies headquartered in a number of countries, including China, Russia, Iran, and North Korea. It got voted out of committee but went no further than that, so your classic copy of Tetris is presumably safe for now. It will not surprise me at all if we revisit this matter in 2025, though perhaps the courts will have put up some boundaries on what can be done by then.