Surprising no one, immediately after Montana became the first state to ban TikTok on Wednesday, five TikTokers in the state with thousands of followers banded together and sued to block the ban. The TikTokers argued that the ban is a huge overstep by the state because it's "unconstitutional and preempted by federal law."
According to their complaint, Montana’s claimed interests in enacting the ban to shield minors and prevent foreign spying "are not legitimate and do not support a blanket ban on TikTok. 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."
Citing First Amendment concerns, the TikTokers argued that the ban is "substantially overbroad" and "suppresses far more speech than it may permissibly regulate." They say that restricting access to content for all users just to address concerns that minors may access some TikTok content that's "dangerous" goes too far. The First Amendment requires the government to find the "least restrictive means" of regulating speech when the government does have a "compelling" interest. Quite the opposite, Montana's ban, they argued, is an example of the government finding "the most restrictive means imaginable."
They also argued that the ban was designed by Montana lawmakers with the intent to substitute Montana's "view of how best to regulate the alleged national security issues arising from TikTok’s United States operations for that of the United States." Not only is the responsibility of setting foreign policy "traditionally and exclusively within the federal government’s power," their complaint said, but also the federal government is actively pursuing its own solutions to possibly permit TikTok to operate in the US. If such an agreement is reached with TikTok and the US, Montana's ban could end up being even more "at odds" with federal policy.
Filed in a US district court in Montana, the lawsuit targeted State Attorney General Austin Knudsen, who supported the ban and is charged with enforcing it.
A spokesperson for Knudsen, Emily Flower, told Reuters that Montana expected the lawsuit and is "fully prepared" to defend the ban.
Ars could not immediately reach TikTok, TikTokers' lawyers, or Knudsen for comment. [Update: Lead counsel representing the TikTok users, Ambika Kumar, previously helped TikTok creators win an injunction against the Trump administration's TikTok ban in 2020. Kumar told Ars, "TikTok is where a billion people go to find entertainment, talk politics, build community, express themselves, and, in many cases, make a living. Montana's blanket ban prevents our clients, and all Montanans, from engaging in protected speech. We are determined to see that this misguided and invalid law is permanently enjoined."]
Yesterday, TikTok spokesperson Brooke Oberwetter told Ars that TikTok plans to fight Montana's ban, too.
"Governor Gianforte has signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok, a platform that empowers hundreds of thousands of people across the state," Oberwetter said in the statement. "We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside of Montana."
Montanans generate substantial income on TikTok
TikTokers are suing "to preserve their rights to publish, view, and share content through TikTok, to protect access to their TikTok followers, and to avert the irreparable harm they will suffer" if the Montana ban takes effect on January 1, 2024.
All plaintiffs see TikTok as irreplaceable. Some rely on it as an important source of income, while others use it to share knowledge, build community, and access breaking news. Some even use it to connect with local lawmakers.
In the complaint, one small business owner suing, Samantha Alario, said TikTok provided a path to promote her sustainable swimwear and took her business to "new heights." Former US Marine Corps sergeant Heather DiRocco confirmed that a "substantial portion of her income"—as much as 30 percent—is derived from posting funny and informative TikToks to more than 200,000 followers. DiRocco also uses TikTok to "connect with other veterans and share information about mental health and suicide prevention."
The wife of a Montana rancher, Carly Ann Goddard supplements her husband's income by creating TikTok content for more than 95,000 followers. Goddard said that her content is so successful, she managed to "roughly triple her family’s household income," and posting regularly helped the stay-at-home mom "recover from postpartum depression." With the threat of the ban looming next year, Goddard said her family is now "waiting to have more children and make other major life decisions until they know whether they will be able to keep the income flow" up that Goddard earns on TikTok.
They represent TikTok users in the state who have "built their livelihoods and found a sense of community on the app," the complaint said, and "they can’t imagine an America without it.”
To TikTokers suing, there is no substitute for TikTok because, unlike platforms like Instagram and YouTube, they believe that TikTok's "recommendation system and organic reach are particularly valuable and offer more opportunities to reach other users."
Among the harms described in their complaint, the TikTokers alleged that Montana's ban deprives them of property rights—including their followers and the revenues derived from TikTok—and "their liberty to pursue their chosen occupation as TikTok content creators." They also argued that Montana did not give them adequate notice or opportunity to respond to deprivations of these rights and others.
Supreme Court likely to weigh in on Montana’s ban
TikTokers' complaint alleged that Montana officials know that the TikTok ban has many legal concerns. Before Montana Governor Greg Gianforte signed the ban into law, he proposed amendments specifically to address the ban's "technical and legal concerns," his press secretary, Kaitlin Price, told Ars last month.
However, the legislative session ended before lawmakers could consider those amendments, and Gianforte signed the bill into law without any of his amendments.
Knudsen has said that because the TikTok ban is "unprecedented," it will likely require "the US Supreme Court to weigh in," according to the TikTokers' complaint.
Rather than being unprecedented, TikTokers argued that federal judges had blocked three attempts to ban TikTok in the US. TikTok's Oberwetter told Ars that historically such blanket bans have not overcome legal scrutiny. TikTokers see no reason why this ban would be any different. And if Montanans are made to wait through a lengthy court process, they would be deprived of "their ability to express themselves and communicate with others," which would cause "irreparable injury" from the "loss of First Amendment freedoms" for "even minimal periods of time."
While experts have said that Montana's ban will be difficult to enforce and TikTok maintains that Montana has no real plan to operationalize that ban, the complaint said that Knudsen has claimed to be prepared to enforce the ban "as soon as it takes effect." The complaint quoted a Newsmax TV interview, where Knudsen said that he “absolutely” will “go after the company itself” and “anybody that allows it to be downloaded” with a “$10,000 per day civil penalty.”
In a statement after the Montana ban was signed into law, Knudsen said that TikTok "poses a threat to every Montanan," urging other states to follow Montana's lead and pass their own bans.
"I hope other states recognize the dangers of TikTok and follow suit,” Knudsen said.
