Montana Republican Gov. Greg Gianforte signs Senate Bill 419, which bans TikTok in Montana, on Wednesday, May 17, 2023. (Handout photo)
How is Montana’s newly enacted TikTok ban illegal?
Well, lawyers for five popular TikTok users in the Treasure State have counted the ways, and they’ve told a federal judge that there are at least six legal problems with the first-of-its-kind ban which is scheduled to go into effect on Jan. 1, 2024 unless otherwise stopped.
Lawyers for Samantha Alario, Heather DiRocco, Carly Ann Goddard, Alice Held and Dale Stout have sued the State of Montana for passing Senate Bill 419 which not only bans the popular social media app, owned by the Chinese corporation ByteDance, but also puts in harsh financial penalties for “entities” that violate the law, like mobile app stores and possibly internet service providers. Language in the new law says that TikTok users are not subject to the penalties, which includes as much as $10,000 for each separate violation.
The lawsuit, filed on Thursday in federal court in Missoula, is the first of several lawsuits that are anticipated to challenge the ban. Other states have considered similar bans, as has the federal government, but Montana remains the only state to have taken such substantial action.
TikTok has told multiple sources that it believes the company’s rights were being violated.
The 44-page lawsuit (please see below) outlines a number of legal challenges to the new law including violations of the U.S. Constitution, including First Amendment concerns about free speech and government censorship; due process concerns; an unfair restriction of commerce; as well as concerns that Montana is trying to appropriate powers that belong to the federal government, like foreign policy:
“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. 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. Even if Montana could regulate any of the speech that users share through TikTok, SB 419 wields a sledgehammer when the First Amendment requires a scalpel.”
In addition to the constitutional rights that have been violated, attorneys for the Montana residents argue that Congress, not the individual states, “investigate and if necessary mitigate national security risks arising from foreign economic actors.”
The plaintiffs are Montanans living in different parts of the state. For example, Samantha Alario owns a small business that designs and sells “sustainable swimwear.” She lives in Missoula. DiRocco is a former sergeant in the Marine Corps, living in Bozeman who creates and shares content on TikTok with more than 200,000 followers on comedy, make-up and mental health. While Goddard lives in Custer sharing family recipes, life on a ranch, home décor and parenting.
Among all of them, they have more than 600,000 followers.
The lawsuit states that more than 1 billion people use the social media app on at least a monthly basis and that includes 150 million Americans.
TikTok is different
The lawsuit’s initial filing seemed to anticipate some of the arguments that government officials on the state and federal level have used to justify banning the app, including that there are other media and apps that serve as a nearly identical platfrom.
“TikTok instead focuses on the ‘For You’ page, powered by its recommendation system, which provides curated videos for each user,” the suit said. “TikTok is known for fostering new communities. Unlike other platforms, TikTok was created for users to explore new content and is not focused exclusively on ‘following’ friends, family, celebrities or influencers.”
Instead, it says that TikTok brings together people who are separated by geography but brought together by interests.
“On TikTok no ‘interest is too small or obscure to coalesce into a community,’” the court documents said. “Groups that specialize in, for instance, little-known cultural art forms or environmental conservation can reach new audiences, creating a mutually beneficial exchange where awareness is spread and users get the pleasure of discovering something new.”
For example, the legal brief said that when Goddard moved across the country from Florida to Montana, she used TikTok to meet other young mothers and form new friends.
“Likewise, Mr. Stout has created a strong community on TikTok who sometimes support each other financially – for example, paying one of the members’ electricity bills when she was out of work,” the court documents said.
The First Amendment is not absolute, meaning there are recognized limits to free speech. One of the most commonly used analogies is that the First Amendment does not allow a person to yell “fire” in a crowded theater if the building is, in fact, not burning.
The lawsuit outlines the legal test to analyze whether the government may have a right to ban content or “speaker-based” regulation of free speech.
The State of Montana will be forced in the lawsuit to prove the measure is necessary to advance a “compelling” state interest and that the law is narrowly tailored using the “least restrictive means available.”
“The law takes the broadest possible approach to its objectives, restrict and banning the protected speech of all TikTok users in Montana to prevent the speculative and unsubstantiated possibility that the Chinese government might direct TikTok Inc., or its parent, to spy on some Montana users,” it said.
Banning free speech must establish that the government isn’t preferring one group of speakers or messages over another.
“The government (can’t) unduly burden or chill protected speech, or discriminate among speakers, particularly where such restrictions ‘reflect the government’s preference for the substance of what favored speakers have to say (or aversion to what the disfavored speakers have to say),” the lawsuit said.
While free speech is protected under the First Amendment, the nation’s courts, including the U.S. Supreme Court, have repeatedly given special consideration to political speech or discourse; in other words, speech that includes commentary, thoughts or speech by politicians and elections.
The lawsuit notes that TikTok is often used as a platform to share and engage in those ideas, and so the ban would have a chilling effect on political speech.
“During the 2020 presidential election, many TikTok creators launched political ‘hype houses,’ which livestreamed debates, challenged candidates’ statements, and discussed policy issues,” the court documents said. “There were conservative, liberal, bipartisan, and undecided houses — providing a wide range of viewpoints easily accessible to voters.”
Federal vs. state issue
The lawsuit also claims that aside from the U.S. Constitutional concerns that Montana has impermissibly overstepped its role, one that properly belongs to the federal government. For example, it uses SB 419’s author and bill sponsor as proof.
Sen. Shelley Vance, R-Belgrade, authored the ban, but claimed the TikTok prohibition was necessary “to send a message to other states and Congress” since she “has no faith in our national administration to handle these issues with China.”
Federal courts will often analyze laws using a two-pronged test: Whether the law is traditionally an area of state responsibility and whether it interferes with the federal government’s foreign affairs.
“The Constitution vests the federal government with the ‘exclusive authority to administer foreign affairs,” the court brief said. “Indeed even when the federal government has taken no action on a particular foreign policy issue, the state generally is not free to make its own foreign policy on that subject.”
Judicial déjà vu
While Montana has become the first state to ban TikTok, it’s not the only state contemplating such a move. Moreover, former President Donald J. Trump tried to institute a TikTok ban, but such action has largely been winnowed back to allow governments – at the state and federal level – to ban the app from devices that are owned by the government. The Montana ban is different because it prohibits the use of the app on personal devices and prohibits internet service providers from hosting the site in the state.
The lawsuit notes that federal judges on three separate occasions since 2020 have stopped TikTok bans because of constitutional concerns.
TikTok maintains that it has been addressing these concerns by using additional measures for Americans’ TikTok data, including “Project T.” The social media company reports that it has spent about $1.5 billion implementing the project, which includes monitoring and controlling U.S. data by a subsidiary that reports to an independent board.
The lawsuit asks federal Judge Donald Molloy to issue an injunction halting the measure from going into effect, as well as declare the state measure unconstitutional, and force the State of Montana to pay attorneys’ fees.TikTok Missoula Montana lawsuit
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