TikTok Sues to Block Montana’s Statewide Ban, Cites Free Speech
Montana’s statewide ban of TikTok should be blocked because it violates the First Amendment and the commerce clause and it’s preempted by federal law, the company argued Monday in a lawsuit filed with the U.S. District Court for Montana in Missoula in docket 9:23-cv-00061-DLC.
The lawsuit will “prevail based on an exceedingly strong set of precedents and facts,” TikTok said in a statement: The filing is meant to protect TikTok’s business interests and hundreds of thousands of users in Montana. A group of TikTok influencers and users sued to block SB-419 in a separate but similar lawsuit last week (see 2305190035).
TikTok is a spy tool for the Chinese Communist Party, said a spokesperson for Montana Attorney General Austin Knudsen (R) Tuesday: The company collects "personal information, keystrokes, and even the locations of its users -- and by extension, people without TikTok who affiliate with users may have information about themselves shared without evening knowing it." Montana expects legal challenges and is "fully prepared to defend the law that helps protect Montanans’ privacy and security," she said. The office for Gov. Greg Gianforte (R) didn’t comment Tuesday.
TikTok has a “constitutionally protected” editorial right to decide “whether, and how, to host, disseminate, and promote third-party speech created by others,” the company said. The statewide ban is a “prior restraint on the speech” of the company and users, “singling out” speakers for “disfavored treatment with the content-based rationale that videos on TikTok are harmful to minors.”
The new law intrudes on matters of “exclusive federal concern,” the company said: “Foreign affairs and national security are matters over which the U.S. Constitution vests exclusive authority in the federal government, not the States.” SB-419 attempts to interrupt a federal regulatory process for addressing national security concerns, the company said. DOJ is doing a national security review of TikTok with the Treasury Department’s Committee on Foreign Investment in the United States (CFIUS). The lawsuit noted Congress is considering the Restricting the Emergence of Security Threats that Risk Information and Communications Technology (Restrict) Act (S-686) (see 2304210024), which would allow the Commerce Department to effectively ban apps like TikTok over national security concerns
The Constitution’s commerce clause limits the authority of states enacting laws that “unduly burden” interstate commerce, the company said. The ban interferes with the company’s state-to-state operations and risks disrupting the flow of travel and commerce, said TikTok. The ban is an “unconstitutional bill of attainder,” the lawsuit said. Instead of regulating social media at large, Montana is focused solely on TikTok for “purely punitive reasons,” as evidenced by the state’s “harsh penalties based on speculative concerns about TikTok’s data security and content moderation practices,” the company said.
The lawsuit seeks a declaratory judgment and order “invalidating and preliminarily and permanently enjoining” Montana from enforcing the ban. The company noted Knudsen, who reportedly drafted the legislation, said during floor consideration for the bill that Montana officials are “under no illusions that this is not going to get challenged” on First Amendment grounds. The company claimed he “explicitly tied support of the legislation to a broader effort to exact payback on China,” when he said, “Frankly, the Chinese did us a favor by floating that spy balloon over Montana when they did.”
TikTok cited support for free speech and free market rights from the American Civil Liberties Union, NetChoice, the Knight First Amendment Institute at Columbia University, the Electronic Frontier Foundation, the Council on Foreign Relations and the Freedom of the Press Foundation.