"The Act attempts to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress." This is the argument made by the first legal challenge to the first law completely banning the use of TikTok, which was passed in Montana Thursday.
By shuttering an entire forum for communication that Defendant Montana Attorney General Austin Knudsen himself admitted is one of "the best way[s] ... to get your free speech out there," the law creates a prior restraint on expression that violates the First Amendment, depriving Montanans of access to a forum that for many is a "principal source for knowing current events” and “otherwise exploring the vast realms of human thought and knowledge."
The lawsuit, filed by five TikTok content creators, takes aim at Montana Attorney General Austin Knudsen. The attorney general argues that the law protects the privacy and security of citizens and has even encouraged other states to imitate it.
Arguments
Montana, the lawsuit alleges, lacks power to govern on national security and international policy. One of the reasons for the ban of the social network is its Chinese origin, since, in the words of Republican Governor Greg Gianforte:
The Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented.
In addition, the text submitted by the plaintiffs argues that the state cannot completely eliminate a forum just because it believes that certain speeches circulating in that forum are 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.
The Montana measure commits several infractions, according to the lawsuit: "[It] is invalid under the United States Constitution because it violates Plaintiffs’ First Amendment and due process rights, as well as the Commerce Clause, and the Foreign Affairs Clauses of Articles I, II, and VI."
Tiktokers Sue Montana / TikTokers demandan a Montana by Santiago Adolfo Ospital on Scribd
TikTok creators
Four of the five plaintiffs make money using the platform, the lawsuit acknowledges. One, veteran Heather Dirocco, even "generates a substantial portion of her income" from her content. Another, Carly Ann Goddard, has tripled her family's income by using the platform.
They all live in Montana. They are engaged in a variety of activities, from studying psychology to designing and selling swimsuits. In the parties' description in the lawsuit, they take care to clarify that their use of the platform is more than economic.
DiRocco, for example, says he uses TikTok to connect with other veterans. "Mr. Stout also uses TikTok to make friends, connect with a community, and learn," the lawsuit reads.
Together, they have more than 550,000 followers on the platform. The group claims that they achieved this massive audience thanks to the Chinese-based platform's algorithm, which allows little-known creators to reach massive audiences.
The group also maintains that it is taking legal action against Montana in defense of its followers, with the intention of protecting their access to the content it generates, as well as to "avert the irreparable harm they will suffer if SB 419 takes effect" on Jan. 1, 2024.
