5 creators sue US Montana's attorney general over TikTok ban

Five TikTok content creators filed a lawsuit against US state Montana's attorney general over plans to impose a statewide ban on TikTok, arguing the ban that would prohibit Montana residents from using the popular app infringes on First Amendment rights and is "unconstitutional and preempted by federal law."

The move came after Montana Governor Greg Gianforte signed Senate Bill 419 on Wednesday, making Montana the first US state to prohibit the use of or access to the social network for everyone.

The five plaintiffs, who have diverse occupations, such as businesswomen, rancher, student and veteran, all create, publish, view, interact with, and share TikTok videos with "significant audiences."

They said these communities allow users to connect, build livelihoods, make friends, and share information, so that they must bring this action to preserve their rights to publish.

In their 44-page indictment applied to the US District Court in Missoula of Montana on Wednesday, the group of creators claimed that the law, set to take effect on January 1, 2024, "attempts to exercise powers over national security that Montana does not have and to ban speech Montana may not suppress."

"Montana's claimed interests in SB 419 are not legitimate and do not support a blanket ban on TikTok," the suit said. "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."

The ban on TikTok in Montana "violated 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 suit noted.

According to the new law, while TikTok users themselves in the state would not be targeted for activity, Apple and Google would be held liable for up 10,000 US dollars a day if their app stores allow Montanans to download TikTok at any point from 2024 onward.

Gianforte declared in a statement Wednesday that the move aimed at defending the "State of Montana and its people against threats to our security, privacy, and way of life."

However, local TikTok creators rebuffed the excuse, saying the US government, instead of TikTok, was collecting people's data every ounce.

"No matter how far away you get from the government, no matter how secluded, you still are gonna have some government presence in your everyday life, in everything you do. And that government is still gathering our data to a far greater extent than China ever potentially could through one app that's mainly used by the younger generation," Christian W. Poole, told the Slate, an online magazine, on Friday.

Poole, a lifelong Montanan, from the college town of Bozeman, has 420,000 followers on TikTok. He warned that the ban in Montana could be a dangerous first step for politicians across the country to "ban a certain app based on whatever security reasons they can make up or exaggerate or whatever."

"That's a big fear for so many folks - not just in the state of Montana but across the nation - who don't want this to happen. That's going to lead to so many infractions of our First Amendment rights, especially freedom of speech and media. Once we start having those infractions, it becomes a constitutional issue, and it's going to become a bigger issue than it ever needed to be in the first place," he said.

The Slate also mentioned in the report that Montana state Rep. Zooey Zephyr, one of the most prominent TikTok users from the state, was kicked off the House floor for the rest of this term on April 26.

Noah Feldman, a Bloomberg Opinion columnist and a constitutional law professor at Harvard University, said in an opinion article published Friday that the constitutional issues in the case of Five Creators v Montana's attorney general were pretty clear and the ban would "likely get full constitutional scrutiny."

"The ban will certainly end up in court, as did President Donald Trump's efforts to ban TikTok nationwide," Feldman predicted, saying the effects of the law amounted to a direct ban on speech and "in the context of free speech, almost no direct-speech ban ever survives strict scrutiny. They almost invariably get struck down."

TikTok issued a statement on Wednesday, saying the Montana's law infringes on the First Amendment rights of local residents as TikTok sets a platform that empowers hundreds of thousands of people across the state.

"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," the statement read.

Meanwhile, the American Civil Liberties Union (ACLU), tweeted Wednesday that "this law tramples on our free speech rights under the guise of national security and lays the groundwork for excessive government control over the Internet."