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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