After Montana banned TikTok, it happened what we all thought it would: the creators have struck back. A group of app users has sued the state of Montana in an attempt to overturn the controversial decision. They claim that the ban violates the First Amendment but also deprives the users of many other constitutional rights.
To remind you, Montana Governor Greg Gianforte just recently signed the legislation, making Montana the first US state to outright ban TikTok. Before that, some US states and some European countries banned the app on government-owned devices. These bans were introduced to “protect data and increase cybersecurity” in Europe, and in the US to protect the country from Chinese espionage. At the same time, users provide all their sensitive data to Meta, but I guess that’s okay because it’s not a Chinese company. Yes, I’m being sarcastic.
In a statement, a spokesperson for Gianforte said:
“While the Chinese Communist Party may try to hide their nefarious spying and collection of individuals’ personal, private, sensitive information under the banner of our First Amendment, the governor has an obligation to protect Montanans and their individual privacy right, as guaranteed by the Montana Constitution, from the Chinese Communist Party’s serious, grave threats.”
But the users aren’t buying it. According to CNN, five TikTok creators filed the lawsuit. Among them are a small swimwear business, a rancher, and a former Marine sergeant – very different types of TikTok users and creators.
We filed suit last night challenging Montana’s unconstitutional ban of TikTok, on behalf of 5 TikTok creators. Lead counsel is Ambika Kumar, who represented other creators in securing an injunction of President Trump’s 2020 ban.
— Davis Wright Tremaine LLP (@DWTLaw) May 18, 2023
“Montana’s claimed interests in SB 419 are not legitimate and do not support a blanket ban on TikTok,” the lawsuit reads. “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.
“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. Even if Montana could regulate any of the speech that users share through TikTok, SB 419 wields a sledgehammer when the First Amendment requires a scalpel.”
The suit further claims that the controversial SB 419 is “unconstitutional and preempted by federal law.” It doesn’t only violate the First Amendment, but also the Due Process Clause of the Fourteenth Amendment and the Foreign Affairs and Commerce Clauses of the United States Constitution, according to the plaintiffs.
However, for now, it doesn’t seem that Montana lawmakers will back up. A spokeswoman for Montana Attorney General Austin Knudsen, Emily Flower, said in a statement that they “expected a legal challenge and are fully prepared to defend the law.” As Mashable notes, although this lawsuit is the first legal challenge to the ban, it is likely that other creators will join the legal battle in the months to come. Let’s see how it unfolds.