The day after Montana’s total ban of TikTok became law, 5 creators who post content on the Chinese-owned social media app have jointly filed a lawsuit seeking to prevent the ban from taking effect.
Among other things, the lawsuit argues that Montana’s government is attempting to assert powers reserved for the federal government, and that the ban is a violation of the First Amendment of the U.S. constitution.
“The Act attempts to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress,” the suit says.
“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 suit also says.
Filed by Samantha Alario, Heather DiRocco, Alice Held, Carly Ann Goddard and Dale Scout in the U.S. district court in Montana, the lawsuit names Austin Knudsen, Montana Attorney General, as defendant.
When signing the ban into law on Wednesday, Gov. Greg Gianforte said he did so, “to protect Montanans’ personal and private data from the Chinese Communist Party.”
Montana previously banned TikTok from being installed on government devices, just as the U.S. government has done for devices issued to federal employees. But the new law goes much further in ways that experts say may make it unenforceable, period.
In addition to making it a crime for app stores like Google Play and iTunes to offer TikTok in Montana, the ban says the app itself “may not operate” within Montana’s borders and threatens TikTok and parent company ByteDance with fines if they attempt to subvert it. And it even suggests individual people caught using the app in Montana might also be held liable.
Critics note however that the law doesn’t explain how it will be enforced. Monitoring individual use of the app would require a massive surveillance apparatus that doesn’t exist in Montana and might itself be subject to constitutional challenges. There is also currently no technological means by which Montana could block the app from working within the state. The ban could easily be evaded with the use of VPNs, and any tourist visiting Montana could simply ignore it.
And on top of the other noted constitutional questions, experts say the fact TikTok is singled out might qualify the new law as a bill of attainder.
It will likely be months if not years before these questions are sorted out. Meanwhile, the ban goes into effect January 1, 2024.