A TikTok influencer and friend recording a video at Washington-Grizzly Stadium in Missoula, Mont., on May 1 Associated Press/Photo by Tommy Martino
Mere hours after Montana became the first state in the country to ban TikTok last week, a group of the app’s users sued, challenging the new law as unconstitutional.
On Monday, TikTok filed its own lawsuit attacking the ban. Together, the twin cases may become a bellwether for states considering similar laws.
Critics of the Chinese-owned video-sharing app say it could be used to gather sensitive information for the Communist Party. In 2020, President Donald Trump banned TikTok by executive order. Courts temporarily barred the order’s implementation over concerns about executive overreach, not constitutionality. Then a few months after taking office, President Joe Biden officially revoked the executive order. The federal government and over half of state governments ban the app from government-issued devices, but these narrower restrictions do not raise similar constitutional concerns.
In the complaint filed in federal court late Wednesday, five Montana residents argue that the state law, set to take effect Jan. 1, 2024, violates First Amendment free speech guarantees for users. “Even if Montana could regulate any of the speech that users share through TikTok, S.B. 419 wields a sledgehammer when the First Amendment requires a scalpel,” the complaint states.
The challengers also allege that federal laws authorize the president and the executive branch alone to investigate and take steps to ward off national security risks. “Montana has no authority to enact laws advancing what it believes should be the United States’ foreign policy or its national security interests,” the lawsuit states.
In TikTok’s own filing, the company goes further, calling out the state for “enact[ing] these extraordinary and unprecedented measures based on nothing more than unfounded speculation.” It adds that the restriction violates the commerce clause of the U.S. Constitution by interfering with interstate commerce, or the free movement of goods and services—something that is the province of the federal government and not states.
The bill stops TikTok from operating in Montana and prohibits mobile app stores from offering downloads of the app to Montana users. Violators could receive a fine of $10,000 for each violation and an additional $10,000 each day that the violation continues. Users are exempt from punishment.
Brad Jacob, a constitutional law professor at Regent University, said courts will need to apply strict scrutiny to the law. That means looking for a compelling governmental interest to justify overriding free speech and asking if the government used the least restrictive means of regulation.
“Since TikTok’s China connections have not caused it to be banned by the federal government, which is responsible for national security concerns, and other states, it seems highly unlikely that Montana has a ‘compelling interest’ in such a ban,” Jacob said.
Techdirt’s Mike Masnick raised a less common constitutional claim. He argued that the law singling out TikTok is an unconstitutional bill of attainder, a rarely cited constitutional provision intended to bar punishment of a specific person for a past act without trial.
U.S. lawmakers aim to address national security concerns through legislation focused on technology that is wholly or partially owned by companies in countries deemed hostile to the United States—including China. In March, a bipartisan group of senators introduced the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act, or the RESTRICT Act.
The proposed legislation gives the U.S. secretary of commerce authority to review and prohibit foreign-owned technologies posing an “unacceptable risk to national security.” The bill, which has 25 co-sponsors and the support of the Biden administration—is currently in committee. While the proposed legislation casts a wider net than the Montana law by not singling out TikTok, it triggers the same free speech and due process concerns for some advocates.
“Let’s face it, there are threats to American national security both foreign and domestic, and anyone can steal and misuse data,” said Joe Cohn, legislative and policy director for the Philadelphia-based Foundation for Individual Rights and Expression. He criticized both the Montana legislation and federal RESTRICT Act for overreach, arguing that a better approach would be for Congress to set uniform privacy standards applicable to all internet platforms.
For some users, a ban on TikTok use doesn’t just shut down a fun pastime but also hits them where it hurts—in their pocketbooks. According to the complaint, one challenger, Bozeman, Mont., resident Heather DiRocco, a former U.S. Marine Corps sergeant with over 200,000 followers—contends the app generates a substantial portion of her income.
TikTok has sought to blunt criticism by rolling out a $1.5 billion data security plan dubbed Project Texas. Under the plan, all U.S. user data would be housed on servers owned and maintained by software giant Oracle. An independent entity of U.S. employees would manage access to the data.
Cohn gives little chance that the Montana law banning TikTok will withstand constitutional scrutiny. He has similar doubts about current federal legislation should it become law: “They will need to continue to refine the bill if they want it to survive constitutional scrutiny because right now it gives the secretary of commerce too much of a blank check.”
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Steve is a reporter for WORLD. A graduate of World Journalism Institute, he worked for 34 years as a federal prosecutor in Raleigh, N.C., where he resides with his wife.
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