Last Friday, Montana became the first state to announce a ban on the social video app TikTok, inevitably paving the way for First Amendment legal fights.

Governor Greg Gianforte of Montana signed the bill into law – one that Montana’s legislature had passed last month – and its effective date is January 1, 2024, unless legal challenges trigger an injunction to delay the start date.

The law would bar TikTok from operating within the state, and it would also forbid any app store, such as the ones that Google and Apple provide, from making the app available to download within Montana, subjecting both TikTok and app stores liable for fines of $10,000 a day for violating the law. Individual TikTok users would not be punished, and users who already have the TikTok app on their phones would still be able to access and use it.

“The government cannot impose a total ban on a communications platform like TikTok unless it is necessary to prevent extremely serious, immediate harm to national security.”

Letter from US civil liberties organizations

More than half of all US states have partially or fully banned TikTok from government devices. Montana is the first to extend a ban to consumer users and their personal devices.

TikTok, which is owned by China’s ByteDance and used by more than 150 million Americans, has faced growing calls from lawmakers and state officials to ban the app nationwide over concerns about potential Chinese government influence over the platform.

Tiktok sues

On Monday, TikTok Inc filed a lawsuit in US District Court in Montana challenging the new law that bans use of the app.

TikTok argues the ban violates First Amendment rights of the company and users. The lawsuit also argues the ban is preempted by federal law because it intrudes upon matters of exclusive federal concern and violates the Commerce Clause of the US Constitution, which limits the authority of states to enact legislation that unduly burdens interstate and foreign commerce.

Echoing what TikTok’s CEO said in statements made in a recent appearance before lawmakers in Congress, the company says in its lawsuit that it “has not shared, and would not share, US user data with the Chinese government, and has taken substantial measures to protect the privacy and security of TikTok users”.

The American Civil Liberties Union (ACLU) and half a dozen free speech and civil liberties organizations explained in a letter they sent to the Montana House of Representatives in April that their legislation flouted the First Amendment.

“The government cannot impose a total ban on a communications platform like TikTok unless it is necessary to prevent extremely serious, immediate harm to national security. But there’s no public evidence of harm that would meet the high bar set by the US and Montana Constitutions, and a total ban would not be the only option for addressing such harm if it did exist,” the organizations said.

Experts weigh in

“Montanans are indisputably exercising their First Amendment rights when they post and consume content on TikTok. Because Montana can’t establish that the ban is necessary or tailored to any legitimate interest, the law is almost certain to be struck down as unconstitutional,” said Jameel Jaffer, executive director of Knight First Amendment Institute at Columbia University.

Eric Sanders, a civil rights attorney and the CEO and owner of The Sanders Firm PC in New York, said: “It seems to me the state of Montana is wading into federal government territory in articulating a threat by the nation of China as their main basis for the ban. Plus, what data does the state have in terms of the data exchange the governor claims is happening between the tech company and the Chinese government? A court of law will want to see actual proof of the data compromise here, especially to undergird a dramatic action like a ban,” Sanders said.

“Any limitation on free speech must be narrowly tailored in order to limit the burden on users to exercise their free speech rights.”

Jason E Johnson, partner, Moses Singer

Jason E Johnson, a partner who handles AI and data-related cases at the firm Moses Singer in New York, agreed with Sanders.

“Any limitation on free speech must be narrowly tailored in order to limit the burden on users to exercise their free speech rights. Montana faces an uphill battle to show that a total ban is warranted and proper given that most of the data that China may obtain from TikTok users is also publicly available,” he said.

“Since most users post their videos and content across multiple social media platforms or that content can simply be purchased, the argument that TikTok is the singular app featuring it and requiring a ban of its use is not a strong one, he said. “Just the threat of a national security interest alone has not been enough in other contexts to justify similar strict free speech limitations,” he added.