ACLU, tech coalitions file amicus briefs in favor of overturning Montana’s TikTok ban

By: - August 15, 2023 5:32 pm

In this photo illustration, the TikTok app is displayed on an Apple iPhone on Aug. 7, 2020 in Washington, D.C. (Photo Illustration by Drew Angerer | Getty Images)

The American Civil Liberties Union is among the nonprofit organizations and tech-oriented business coalitions that filed amicus — or friend of the court–  briefs in federal court challenging the state of Montana’s ban on the social media app TikTok. 

The ACLU contends in its brief that the law, passed this year by the Legislature, violates the First Amendment, oversteps the federal government’s authority to administer foreign affairs, and hinders business opportunities and political speech for Montanans. 

The organizations filed briefs in support of enjoining Senate Bill 419, which would charge app stores $10,000 each time a Montana-based user was able to download the social media app TikTok, and every day in violation after that, beginning on Jan. 1, 2024.

The bill, sponsored by Sen. Shelley Vance, R-Belgrade, was signed by Republican Gov. Greg Gianforte in May. 

The ACLU filed its arguments in conjunction with digital rights advocacy group Electronic Frontier Foundation on Friday. Other organizations that filed separate briefs included the Computer & Communications Industry Association, as well as trade associations and coalitions like NetChoice and the Chamber of Progress, as well as the Reporters Committee for Freedom of the Press. 

“The Constitution imposes an extraordinarily high bar on this kind of mass censorship,” said Patrick Toomey, deputy director of ACLU’s National Security Project, in a press release. “Montana’s law violates the First Amendment, plain and simple, and it should be halted.”

State officials including Attorney General Austin Knudsen and Gianforte have said the ban would protect Montanans from data collection from an app owned by the Chinese Communist Party, a claim that has been disputed. Gianforte previously banned TikTok on state devices and state wifi. 

The social media app sued the state earlier this year arguing in part that the law is unconstitutional. A separate suit was filed by TikTok users in Montana that was ultimately combined with the original suit by the company after the New York Times reported the app was paying plaintiffs’ legal fees. 

TikTok has said it does not store U.S. user data in China, but rather in data centers in the U.S. and Singapore, meaning it would be safe from potential seizure by the Chinese government. 

The ACLU said in its joint brief that leaders’ claims of potential threats to national security don’t lessen the state’s burden of having to abide by the Constitution. 

“The mere incantation of ‘national security’ cannot diminish the searching judicial scrutiny applicable here. If anything, it requires more skeptical review,” the filing read. 

In NetChoice and the Chamber of Progress’ amicus brief, the tech groups said the law sets a “worrisome precedent,” saying other states might be looking to control online discussions in the name of national security.

“Ironically, this is the sort of authoritarian conduct—inimical to free speech and free commerce—that Montana purports to oppose,” the filing read. 

The NetChoice and Chamber of Progress filing said Montana has no constitutional authority or expertise to make decisions in how to handle foreign affairs, and that states taking an ad-hoc approach to national security would lead to inconsistent and ineffective outcomes. 

“Any concerns about potential influence from the Chinese Communist Party are properly addressed at the national level—not by diktats from the state capitol,” the filing read. 

The Computer & Communications Industry Association said in its brief that it’s not just users’ free speech that would be impeded on, but the editorial authority of the app store. 

“Like traditional publishers and distributors of speech, app stores have a First Amendment right to curate the third-party content they provide,” the filing read. 

CCIA Senior Vice President and Chief of Staff Stephanie Joyce said in a press release the ban was a violation of the First Amendment in “forcing this choice onto app stores.” 

“Digital service companies in the United States have the right to decide what content to offer their users,” she said in the release.

The Reporters Committee for Freedom of the Press argued the ban would impede reporters’ ability to effectively reach and communicate with their audience. 

“Without access to a platform where millions of young people are expressing themselves, members of the press would be handicapped in their effort to understand the stories of that share of the public,” their filing read. 

The ACLU said in its joint brief that Montana’s TikTok ban “blocks far more speech than necessary to serve any legitimate purpose, banning TikTok’s ‘operation’ outright and alluding generally to concerns over ‘dangerous content’ without ever defining it.” 

The joint filing said the law suppresses speech before users or the app can post on the platform, likening it to when the Supreme Court held that barring a newspaper from publishing was the “essence of censorship.” 

“Here, SB 419 similarly shuts down the speech of TikTok and its users by barring them from posting content in the first place,” the filing read.

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Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.