5 TikTok users sue Montana hours after TikTok ban was signed

Techdirt’s Mike Masnick offers highlights and his take on court filings by users against Montana Governor Greg Gianforte’s TikTok ban.

Op-Ed by Mike Masnick from Tech Dirt

We noted yesterday that Montana’s embarrassment of a governor, Greg Gianforte, was about to cost the state a ridiculous amount of taxpayer money having to defend his obviously unconstitutional ban on TikTok. What I hadn’t realized was that by the time I’d published that article, the first such lawsuit had already been filed.

Five TikTok users have sued the state of Montana, represented by Austin Knudsen, the state’s Attorney General. And the complaint opens by using Knudsen’s own words against him:

Plaintiffs, creators and viewers of content on TikTok, bring this lawsuit to challenge An Act Banning TikTok in Montana (SB 419). The Act attempts to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress. 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.” Packingham v. North Carolina, 582 U.S. 98, 99 (2017).

The opening lays out the basis of the lawsuit pretty plainly and clearly:

Montana’s claimed interests in SB 419 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. 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. Even if Montana could regulate any of the speech that users share through TikTok, SB 419 wields a sledgehammer when the First Amendment requires a scalpel.

SB 419 is unconstitutional and preempted by federal law. The Act violates the First Amendment and the Due Process Clause of the Fourteenth Amendment, as well as the Foreign Affairs and Commerce Clauses of the United States Constitution. The Act is also preempted by the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701 et seq., and by Section 721 of the Defense Production Act (Section 721), 50 U.S.C. § 4565, which authorize the President and the Committee on Foreign Investment in the United States (CFIUS)— not individual states—to investigate and if necessary mitigate national security risks arising from foreign economic actors.

You can read the whole complaint, which goes into a lot more detail on what’s stated in the two paragraphs above, but I’ll just highlight one more section, which points out that former President Trump tried and failed to ban TikTok already, so it’s unclear why Montana officials believe that their law has any chance of being found constitutional.

Federal judges have three times enjoined attempts to ban TikTok. See TikTok Inc. v. Trump, 490 F. Supp. 3d 73, 83 (D.D.C. 2020) (holding that former President Trump lacked authority to issue an executive order to “regulate or prohibit, directly or indirectly” any exchange of “informational materials” or “personal communication[s]” transmitted to the United States through TikTok) (citation & internal quotation marks omitted); Marland v. Trump, 498 F. Supp. 3d 624, 642 (E.D. Pa. 2020) (enjoining same executive order; rejecting government’s “descriptions of the national security threat posed by the TikTok app” as “hypothetical”); TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 112 (D.D.C. 2020) (enjoining the same executive order)

Montana is going to lose this lawsuit. And, in a just world, it would permanently embarrass the governor and the legislature, but in these culture warring days, it will probably just embolden them to produce even more nonsense.