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Lawsuit: Montana’s TikTok Ban Violates First Amendment, Usurps Federal Power

Lawsuit: Montana’s TikTok Ban Violates First Amendment, Usurps Federal Power

Plaintiffs argue, “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.”

Several Montana residents sued Montana Attorney General Austin Knudsen on May 17, 2023, to prevent the state’s TikTok ban from taking effect. The plaintiffs mounted their legal challenge the same day Montana Governor Greg Gianforte signed the bill into law, which is slated to take effect on January 1, 2024.

The plaintiffs allege the law is unconstitutional as an infringement on the First Amendment and Fourteenth Amendment as well as a usurpation of Congress’s and the President’s powers.

The lawsuit alleges the TikTok ban violates the First Amendment by imposing a prior restraint and content-, viewpoint-, and speaker-based restrictions on speech. The plaintiffs’ Fourteenth Amendment claims include denial of due process through deprivation of property and liberty.

The lawsuit also claims the TikTok ban impermissibly regulates interstate commerce and foreign affairs, powers reserved to the federal government.

The plaintiffs, who include a small-business owner and a Marine Corps veteran, use TikTok for diverse purposes: providing parenting advice, selling sustainable swimsuits, commenting on ranch life, and sharing content on outdoor activities, among other uses.

The law’s preamble identifies several justifications for the TikTok ban: China’s “control and oversight of ByteDance,” TikTok’s parent company, and the use of TikTok to promote “dangerous content that directs minors to engage in dangerous activities,” including “throwing objects at moving automobiles” and “attempting to break an unsuspecting passerby’s skull by tripping him or her into landing face first into a hard surface.”

The law’s preamble also contains the accusation TikTok steals user information and has the “ability to share that data with the Chinese Communist Party,” which “unacceptably infringes on Montana’s right to privacy.”

The law prohibits any entity from operating TikTik “within the territorial jurisdiction of Montana,” including the operation by companies or users or providing “the option to download” the app. Any person violating the law is subject to a $10,000 fine for each violation, with “an additional $10,000 each day thereafter that the violation continues.”

The law exempts users from penalties and does not ban use related “to law enforcement activities, national security interests and activities, security research activities, or essential government uses permitted by the governor on the information technology system of the state.”

The law provides an affirmative defense to any violator who “could not have reasonably known that the violation occurred within the territorial jurisdiction of Montana.” The law is automatically void if “a company that is not incorporated in any other country designated as a foreign adversary” acquires TikTok.


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chrisboltssr | May 22, 2023 at 7:32 pm

You don’t have a 1st Amendment right to be on TikTok.

I am interested in the commerce argument because lots of states regulate a lot of commerce that can be construed as interstate commerce, such as California imposing stricter regulations on vehicles than federal standards.

I highly doubt these individuals will be successful in their lawsuit.

You can read the editorial choices of the Chinese government for you if you want, TikTok just makes it entertaining in addition.

It’s like our political news tailored for women.

And where were all these people before, during and after the Trump presidency, when the leftist media and social media dwarves “violated the First Amendment by imposing a prior restraint and content-, viewpoint-, and speaker-based restrictions on speech. The plaintiffs’ Fourteenth Amendment claims include denial of due process through deprivation of property and liberty.”

Two tiered justice and prosecutions. Total banana republic.

    diver64 in reply to Dimsdale. | May 23, 2023 at 3:59 am

    My first thought. All these screeching leftists apparently have no problem with government and private industry censoring viewpoints they don’t like. I don’t think many are missing this point

Almost every agency of the federal government, as well as numerous agencies among the 50 states, had a hand in either asking or forcing Twitter, Facebook, YouTube and other platforms to restrict, remove or censor posts that questioned the “official narrative”.

But since TikTok is not controlled by Big Tech, governments can’s stick their nose in it to monitor and censor free speech. That is why it’s a danger, not China convincing some fool in Nebraska to throw a rock through a window.

    caseoftheblues in reply to George S. | May 23, 2023 at 7:12 am

    You are woefully ignorant of exactly what Tiktok is and what it does…suggest you educate yourself before posting about things you clearly know nothing about

What is disturbing to me is that there even needs to be a discussion about banning it. Why in the heck would anybody still have that Chinese spyware on their phone? It baffles me! One of TikTok’s executives even testified that the app contained a key logger! Of course they said they didn’t use it for anything nefarious, but who would trust that? The app has the ability to track every single key you type… passwords, texts, emails, websites… everything. People are nuts!

I look forward to other states banning American spyware from app stores too. Google, Facebook, etc. have long cooperated with the government in investigations, even without warrants.

JackinSilverSpring | May 22, 2023 at 11:54 pm

I am going to be the odd-man out here. I think the 1st Amendment does protect the right of the individual to use Tik-tok (although I personally think anyone doing so is a fool because of the CCP’s deep involvement in it). A ban on Tik-tok should come from the federal government on national defense grounds. After all, it is the federal government that determines the nation’s defense policies, not individual states.

    chrisboltssr in reply to JackinSilverSpring. | May 23, 2023 at 1:55 am

    Using any form of technology, save anything protected by the 2nd Amendment, is a privilege. Preventing someone from accessing an app is not a fundamental curtailment of a person’s 1st Amendment right. If they were going to make a constitutional argument I wonder why they’re not making a 4th Amendment argument, since it could be argued the state is taking away their access without giving a proper reason to do so (national defense is the purview of the federal government, not the states).

    We shall see.

      daniel_ream in reply to chrisboltssr. | May 23, 2023 at 5:16 am

      Using any form of technology, save anything protected by the 2nd Amendment, is a privilege

      Now do printing presses. Or automobiles. Or natural gas stoves.

      Honestly, half the reason soi-disant conservatives keep losing the culture war is that they are and insist on remaining pig-f*cking stupid about technology.

        chrisboltssr in reply to daniel_ream. | May 23, 2023 at 9:38 am

        Although the 1st Amendment guarantees your right to the freedom of the press, it does not guarantee your right to owning a printing press.

        Vehicles are the very definition of privilege as states can and do regulate your ability to drive a car. You have to register the vehicle with the state, are required to have insurance on the vehicle, are required to be licensed by the state granting you driving privileges and if you do not follow any of the traffic laws your privileges can be revoked and your car confiscated. Also, if your vehicle is financed and you don’t pay your finance company can seize your vehicle and, if you file for bankruptcy, the government can seize your vehicle or any of your property to settle your debts.

        All technology is basically a privilege. There is a difference between recognizing that fact and advocating for the banning of them. Perhaps you should try to understand the difference and not be quick to rush to insult people.

          henrybowman in reply to chrisboltssr. | May 23, 2023 at 4:28 pm

          The Bill of Rights isn’t an exception to a Constitution that says “the government can do everything else.”
          The government can only do what has specifically been delegated to it. The Bill of Rights was just a clear statement of, “here’s one more reminder, in ink, that we did NOT delegate these powers to you.” And even one of those was another statement that anything else we didn’t delegate, you don’t have.
          Technology is a privilege, my ass. Commerce created it, and commerce is free to market it. This federal “mother may I” shit is getting old.

You just can’t fix stupid. The problem isn’t the Chinese.

BierceAmbrose | May 23, 2023 at 12:21 am

They can’t engage in product-banning theater; that’s the CSPB’s, er, EPA’s job.

Plaintiffs’ counsel are from Seattle and Portland. What a shocker!

The MT law smells like a setup, a vehicle to get TikTok a positive incentive in federal court. Here’s how:

The law is all about TikTok data: Who has it, where is it stored, what is done with it afterwards, etc. Any complaint made about TikTok data can be answered by TikTok simply complying with the new rules, storing data in the US, claiming to have shut down the CCP access to it, etc. They can kick this can down the road endlessly.

But the problem with TikTok is that it is a weapons grade persuasion platform, one that is driving the current trans hysteria, making our young women crazy / psychotic on any number of topics. They still have the viral button, that they can push on any single post to make it go viral. Not a single word about persuasion in the MT legislation.

From here, this is a setup using a small, western state as a vehicle to manufacture precedent in federal court as a defense against an expected national TikTok ban. Cheers –

I love that they’re making the dual claim that it’s un-constitutional AND it’s a federal power. So, if the feds were doing it, it would be constitutional?

No, not really what they’re claiming, but putting it together like that does look a tiny bit absurd.

I really don’t see how they can simply ban TikTok (from a constitutional point of view). It’s not really within their purview (or the federal gov’t’s).
Yes, they can block it on gov’t devices, etc. But how do you simply ban an application? If you could show it was somehow breaking the law (fraud, wiretapping, stealing data) then you could conceivably prosecute on that basis.
But, simply banning it seems like a corporate bill of attainder.

Now, banning its import might be something the feds could do.

The internet is the modern public square.

Now for comparison to the old public square lets say there are a series of malls

Lets say one mall is called Google and it is owned by an American Indian (from India not native American)

Lets say another is called twitter and it is owned by an American from South Africa

Now lets say another is Facebook and it is owned by an American

Now lets say another is called Tik Tok and it is owned by a Jew and young people are ignoring the other malls and using shopping there. Now lets say there is an anger at Jews so it is forcibly closed down for being a Jewish owned mall.

State can’t go in and close Tik Tok Mall for being Jewish owned.

We have free trade agreements with China, Tik Tok broke zero American laws, it isn’t doing anything the others are not doing either.

So yes banning Tik Tok in Montana is illegal. You can’t ban something on grounds that it is Chinese owned.

    GWB in reply to Danny. | May 23, 2023 at 1:41 pm

    You missed the part where the Jewish mall is not owned by an American, but is a shell company.
    Also, free trade agreements with China have certain rules written into them. It’s not simply an open door.

    I don’t think those things get us over the hump of this not being legal/constitutional.

      Danny in reply to GWB. | May 23, 2023 at 2:44 pm

      But could you name one law Tik Tok broke? Ignore the law could you name one thing Tik Tok did that google and facebook did not do on a much larger scale?

      It is breaking no rules, breaking no laws, and no outcompeting google among the most sought after commercial demographic is not illegal.

      Pretending our problems come from China nearly got us the mother of all censorship bills from the Democrats it is time to stop shouting China every five seconds.

        henrybowman in reply to Danny. | May 23, 2023 at 4:33 pm

        Danny is righter here than many of the other posters. And coming from me, you know that assessment is genuine.