Five TikTok users filed a lawsuit in a federal Montana court on Wednesday to stop the state’s newly enacted TikTok ban from going into effect. The lawsuit, filed the same day Governor Greg Gianforte signed the ban into law, asks the court to declare the law invalid under the US Constitution and prevent the state from taking any action to enforce it.
The five TikTok users argue that the newly enacted law “attempts to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress.”
Specifically, the users claim the law violates the US Constitution’s First and Fourteenth Amendments. The users claim that TikTok is a “forum for communications protected by the First Amendment” because it serves as a place for users to freely express themselves and exchange ideas.
They also argue that, in enacting the law, Montana sought to enforce foreign policy or national security interests, which are meant to be addressed at the federal level, not state. Specifically, the lawsuit cites the International Emergency Economic Powers Act (IEEPA) and Section 721 of the Defense Production Act (DPA). Both of these acts authorize the executive branch of the federal government–the US president and the Treasury Department–”to investigate and if necessary mitigate national security risks arising from foreign economic actors.” Notably, the users point out that these powers are placed with the federal government, not Montana.
Even beyond the cited statutes, users cite a legal concept known as the foreign affairs doctrine, in which the US Constitution is understood to vest the power to administer foreign affairs solely with the federal government. The users also refer to previous court rulings, which found that where the federal government has no stated foreign policy, states are not meant to enact their own.
However even the federal government’s attempts to limit TikTok’s US operations have been shot down by federal judges. In 2020, three federal judges blocked a Trump-era executive order which sanctioned TikTok in the name of national security. The judges found that former President Donald Trump’s executive order lacked a legitimate national security concern, leaving the president with no authority to regulate or prohibit TikTok’s US operations.
Gianforte signed the ban into law on Wednesday. The ban applies a $10,000 fine for any entity operating or offering for download the popular social media platform TikTok. TikTok users are not penalized under the law.
The ACLU has condemned the law as “unconstitutional.” Policy director at the ACLU of Montana Keegan Medrano said, “With this ban, Governor Gianforte and the Montana legislature have trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment.”
If the court does not take action in this case or any others filed, the law will go into effect on January 1, 2024.