Montana TikTok ban faces first court challenge

Montana’s statewide TikTok ban came under legal attack Wednesday just hours after it was signed into law by the governor.

The law firm Davis Wright Tremaine filed the lawsuit in Montana’s federal trial court on behalf of five TikTok creators who live in the state and use the app that’s popular among 150 million Americans.

Republican Gov. Greg Gianforte signed the law that bans app stores from offering TikTok in Montana starting Jan. 1, 2024. Gianforte said the law aims to protect citizens from foreign influence by the Chinese Communist Party since TikTok is owned by Beijing-based ByteDance, with app stores facing penalties starting at $10,000 for continuing to offer the app.

While Montana is the first state to fully ban new downloads of the app, the hysteria around the alleged national security threats posed by TikTok has led to more than 30 states banning TikTok on government-issued devices. Congress has multiple bills ranging from a nationwide TikTok ban to legislation empowering the executive branch to restrict TikTok and other apps from foreign adversaries. But momentum has stalled in recent weeks after Republicans and progressive Democrats alike came out against a ban.

The lawsuit, announced Thursday, asserts that Montana has no authority to enact laws based on national security interests, or that infringe on residents’ constitutionally protected free speech.

“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 said. “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.”

The lead counsel on the lawsuit — Ambika Kumar — represented other TikTok creators in the lawsuit filed against former President Donald Trump’s previously unsuccessful attempt to ban TikTok in 2020. It’s unlikely to be the only lawsuit, as TikTok is also considering its next legal steps.

In fact, the lawsuit notes that federal judges have blocked three separate attempts to ban the app, holding that Trump lacked the authority to block personal communications on TikTok.

“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,” Brooke Oberwetter, a TikTok spokesperson, said in a statement on Wednesday.

The Biden administration’s Committee on Foreign Investment in the U.S. has been reviewing whether to ban or force the sale of TikTok to a U.S. owner — but efforts have stalled in recent months.

Gianforte’s office continued to defend the law Thursday. “While the Chinese Communist Party may try to hide their nefarious spying and collection of individuals' personal, private, sensitive information under the banner of our First Amendment, the governor has an obligation to protect Montanans and their individual privacy right, as guaranteed by the Montana Constitution, from the Chinese Communist Party's serious, grave threats,” Kaitlin Price, a spokeswoman for the governor, told POLITICO.