Last month, TikTok sued Montana’s attorney general—alleging the state’s recent TikTok ban is unconstitutional and is preempted by federal law.
On May 17, Montana Governor Greg Gianforte signed a first-of-its-kind law banning TikTok from operating in the state, in order “[t]o protect Montanans’ personal, private, and sensitive data and information from intelligence gathering by the Chinese Communist Party.”
Montana’s ban blocks app store platforms from providing TikTok for download to state residents, and prohibits individual users from accessing the app. Once the legislation takes effect on January 1, 2024, TikTok and app platforms could face a $10,000 fine for each “discrete violation”—defined as “each time that a user accesses tiktok, is offered the ability to access tiktok, or is offered the ability to download tiktok”—and an additional $10,000 each day that the violation continues.
TikTok alleges the ban is unlawful for a number of reasons, including:
- First Amendment: The law violates TikTok’s First Amendment rights and is a prior restraint on the company and its users’ speech.
- Federal Preemption: The law is preempted by federal law because it is “based on the State’s purported concern about the security of U.S. user data vis-à-vis the Chinese government,” but the federal government has exclusive authority over foreign affairs and national security.
- Commerce Clause: Because the law imposes a ban on a platform that is both national and international, it “interferes with TikTok’s operation and availability to users in other States and it risks disrupting the flow of travel and commerce between States.”
- Bill of Attainder: The law targets TikTok specifically and imposes harsh penalties, rather than regulating social media companies more generally.
The law faces other legal challenges, including a separate suit filed by a group of TikTok users who similarly argued that the ban was unconstitutional and was preempted by federal law. The suits could provide insight into how successful other proposed attempts to ban or limit the use of TikTok will be across the country.
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