TikTokers immediately sue to block Montana’s “unconstitutional” ban

Surprising no one, immediately after Montana became the first state to ban TikTok on Wednesday, five TikTokers in the state with thousands of followers banded together and sued to block the ban. The TikTokers argued that the ban is a huge overstep by the state because it’s “unconstitutional and preempted by federal law.”

According to their complaint, Montana’s claimed interests in enacting the ban to shield minors and prevent foreign spying “are not legitimate and do not support a blanket ban on TikTok. Montana has no authority to enact laws advancing what it believes should be the United States’ foreign policy or its national security interests, nor may Montana ban an entire forum for communication based on its perceptions that some speech shared through that forum, though protected by the First Amendment, is dangerous.”

Citing First Amendment concerns, the TikTokers argued that the ban is “substantially overbroad” and “suppresses far more speech than it may permissibly regulate.” They say that restricting access to content for all users just to address concerns that minors may access some TikTok content that’s “dangerous” goes too far. The First Amendment requires the government to find the “least restrictive means” of regulating speech when the government does have a “compelling” interest. Quite the opposite, Montana’s ban, they argued, is an example of the government finding “the most restrictive means imaginable.”

They also argued that the ban was designed by Montana lawmakers with the intent to substitute Montana’s “view of how best to regulate the alleged national security issues arising from TikTok’s United States operations for that of the United States.” Not only is the responsibility of setting foreign policy “traditionally and exclusively within the federal government’s power,” their complaint said, but also the federal government is actively pursuing its own solutions to possibly permit TikTok to operate in the US. If such an agreement is reached with TikTok and the US, Montana’s ban could end up being even more “at odds” with federal policy.

Filed in a US district court in Montana, the lawsuit targeted State Attorney General Austin Knudsen, who supported the ban and is charged with enforcing it.

A spokesperson for Knudsen, Emily Flower, told Reuters that Montana expected the lawsuit and is “fully prepared” to defend the ban.

Ars could not immediately reach TikTok, TikTokers’ lawyers, or Knudsen for comment.

Yesterday, TikTok spokesperson Brooke Oberwetter told Ars that TikTok plans to fight Montana’s ban, too.

“Governor Gianforte has signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok, a platform that empowers hundreds of thousands of people across the state,” Oberwetter said in the statement. “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.”

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