After Montana Ban, TikTok and Free Speech Groups Appear Poised for Legal Fight

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 is set to take effect Jan. 1 and is the first of its kind in the nation.

The TikTok users said in a lawsuit that the law violated their First Amendment rights and claimed that the ban, which Gov. Greg Gianforte signed on Wednesday, far outstripped Montana’s legal authority as a state. The lawsuit was filed Wednesday in U.S. District Court but was added to a public court records system on Thursday.

The ban has also set off an outcry from TikTok and civil liberty and digital rights groups. Montana lawmakers and Mr. Gianforte, a Republican, say the ban is necessary to prevent Americans’ personal information from falling into the hands of the Chinese government. TikTok is owned by the Chinese company ByteDance.

Under the law, TikTok will be fined for operating the app within the state, and app store providers like Google and Apple will be fined if TikTok is available for download in Montana.

No plans for a lawsuit were announced on Thursday by TikTok itself or leading civil liberty groups. Brooke Oberwetter, a spokeswoman for TikTok, declined to comment on the likelihood of the company’s filing a suit.

But Ms. Oberwetter said on Wednesday, after the law was signed, that the ban infringed on the First Amendment rights of people in Montana and that the company would keep “working to defend the rights of our users.” She said on Thursday that a federal ban in 2020 did not hold up to legal scrutiny and that Montana did not have a workable plan for enacting the ban.

Ms. Oberwetter also pointed to statements from civil and digital rights groups raising similar concerns. TikTok did not immediately respond to a request for comment about the lawsuit.

Ramya Krishnan, a lawyer at the Knight First Amendment Institute at Columbia University, said the U.S. Constitution protected Americans’ access rights to the social media platforms of their choosing. To justify a ban, Ms. Krishnan said, Montana would have to show that its privacy and security concerns were real and that they could not be addressed in narrower ways.

“I don’t think TikTok has yet committed to suing, but I think it’s likely that it will,” she said. “Because this is such a dramatic and unconstitutional incursion into the First Amendment rights of Americans, we are certainly thinking through the possibility of getting involved 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 violated the Constitution. Krista Chavez, a spokeswoman for the group, said NetChoice did not “currently have plans to sue” to challenge the law.

The Montana plaintiffs are five residents who “create, publish, view, interact with and share videos on TikTok,” their lawsuit said. Their lawyers did not immediately respond to a request for comment.

The lawsuit said 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.” The users also argued that the law violated provisions of the Constitution that give the federal government exclusive power over foreign affairs and prohibit states from regulating interstate commerce.

TikTok users have been successful in blocking a ban of the app before. In 2020, a judge sided with a group of creators who challenged an attempt to ban the app by President Donald J. Trump. TikTok and ByteDance also separately sued to stop the president’s actions.

Montana passed its law after the federal government and more than two dozen states banned TikTok from government devices in recent months. Lawmakers and intelligence officials have said TikTok, because of its ownership, could put sensitive user data into the hands of the Chinese government. They have also argued that the app could be used to spread propaganda.

TikTok says it has never been asked to provide, nor has it provided, any U.S. user data to the Chinese government.

“Many have hypothesized that China might demand that ByteDance, TikTok’s parent company, turn over Americans’ data or use TikTok to push disinformation in some way, but neither Montana nor the U.S. government has pointed to any evidence that China is actually doing this,” Ms. Krishnan said. “That’s a problem because speculative harms can’t justify a total ban on a communications platform, particularly one that’s used by hundreds of thousands of Montanans daily.”

In addition to the legal fight, many experts raised questions about whether the law could be enforced. Internet users can use virtual private network software to disguise their location. Individuals who live in Montana border towns could have access to TikTok and other mobile apps through cellular towers in neighboring states.

In an email, Emilee Cantrell, a spokeswoman for the state’s attorney general, Austin Knudsen, said there was existing technology for restricting app use within a specific location. The technique, known as geofencing, is “already in use across the gaming industry,” which the state’s Justice Department also regulates, Ms. Cantrell said.

“A basic internet search will show you companies that provide geolocation compliance,” she said. If companies do not comply with the ban, she continued, the agency “will investigate and hold offending entities accountable in accordance with the law.”

Asked about the lawsuit filed by TikTok users, a second spokeswoman for Mr. Knudsen, who is named the defendant in the lawsuit, said later on Thursday that his office “expected a legal challenge” and was “fully prepared to defend the law.”

The legislation puts the onus for enforcing the ban on TikTok, Apple and Google. Under the law, TikTok could be fined $10,000 for each individual violation of the ban and an additional $10,000 every day a violation continues. Apple and Google would face the same fines if they allowed the app to be downloaded in the state.

While the State Legislature was considering the ban, a trade group representing Apple and Google said it would be impossible for the companies to restrict access to an app inside a single state.

“The responsibility should be on an app to determine where it can operate, not an app store,” David Edmonson, a vice president for TechNet, the trade group, said in a statement on Thursday.

Google and Apple declined to comment.


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