The popular video app TikTok sued Montana on Monday, saying the state’s new law banning the app statewide would violate Americans’ First Amendment right to free expression.
The federal lawsuit will set the stage for a broader debate over the short-video app and its Chinese parent company, ByteDance, which some critics in the United States have said is vulnerable to Chinese government propaganda and espionage.
The lawsuit seeks to overturn the law, which Gov. Greg Gianforte (R) signed last week and is set to go into effect Jan. 1. The legal challenge will probably delay the measure.
Gianforte said the law would “protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party.” Neither Montana officials nor the U.S. government has supplied evidence supporting that claim.
TikTok, which says it has 150 million monthly active users in the United States, said in its lawsuit that the state’s “extraordinary and unprecedented measures [are] based on nothing more than unfounded speculation.”
In a statement, TikTok spokeswoman Brooke Oberwetter said that the company is “challenging Montana’s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana” and that it believes its case “will prevail based on an exceedingly strong set of precedents and facts.”
The lawsuit cited TikTok data from March to estimate that roughly 110,000 monthly active users accessed TikTok around Missoula, the home of the public University of Montana and the second-largest metropolitan area in the state.
Montana officials did not immediately respond to requests for comment.
In its complaint, TikTok says Montana’s ban violates not only the company’s First Amendment rights on “whether, and how, to host, disseminate, and promote third-party speech created by others,” but also the free-speech rights of its users by “unconstitutionally shutting down the forum for speech for all speakers on the app.”
Five TikTok creators in Montana also cited First Amendment protections when they sued Montana last week over the ban.
“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,” the lawsuit states.
Federal judges supported a similar argument when they blocked President Donald Trump’s executive order banning TikTok and the Chinese app WeChat in 2020, saying the U.S. government had provided “scant little evidence” to justify a ban that would “burden substantially more speech than is necessary.”
TikTok’s lawsuit also argues that Montana’s ban would preempt federal law by intruding upon matters of national concern, including domestic security and foreign affairs.
TikTok is negotiating with the Committee on Foreign Investment in the United States, a cross-government group that reviews foreign business deals, on data-security measures that the company hopes will allow it to remain operational in the United States.
Some in the Biden administration have pushed ByteDance to sell TikTok, arguing divestiture is the only measure that would resolve their concerns over foreign influence.
TikTok’s lawsuit argues that Montana’s ban would violate the Constitution’s Commerce Clause, which restricts state laws that could impair the flow of business across state lines.
It also accuses Montana of an “unconstitutional bill of attainder” by passing a law that would single out TikTok for punishment “based on speculative concerns,” rather than approving a more general law that would cover all social media companies or regulate the practices of the industry at large.
Civil rights and free-expression groups have argued that TikTok presents a compelling case. Seth Stern, a director at the Freedom of the Press Foundation, wrote in March that “censoring communications from foreign countries — let alone entire platforms — is plainly unconstitutional” and called on the courts to strike any such measure down.
The law would ban TikTok from operating in the state and impose $10,000-a-day fines on any “entity,” such as the Apple and Google app stores, that allows people in Montana to download the app.
Tech experts told The Washington Post last week that the proposal is “technically incompetent” due to several factors, including that the app stores don’t keep track of everyone who crosses the Montana state line.
And Carl Tobias, a professor at the University of Richmond’s law school, said TikTok’s lawsuit makes several compelling arguments and that he expects the federal judges ruling on it may take the company’s side.
“It’s a pretty clear violation of the First Amendment, which requires strict scrutiny and narrowly tailored laws, which this ban is clearly not,” Tobias said in an interview. “The argument about this impairing the free flow of commerce between the states is a strong argument. As is the one about national security, which is clearly within the purview of the president and the Congress, not individual states. It’s a very strong case.”