TikTok Creators Sue Montana Over App Ban, Citing First Amendment Violations

A group of content creators filed a lawsuit against the state of Montana, challenging a first-in-the-nation ban on TikTok that was signed into law on Wednesday.

The five plaintiffs - Samantha Alario, Heather Dirocco, Carly Ann Goddard, Alice Held and Dale Stout - are Montana residents and TikTok content creators who use the app to promote a business, connect with military veterans, share outdoor adventures, or express their sense of humor. Two of them have over 200,000 followers.

One of them, Carly Ann Goddard, shares videos about her parenting, living on a ranch, food recipes and home décor. Her account has amassed 97,000 followers and, according to the lawsuit, allowed Goddard to roughly triple her family’s household income.

This economic reliance on TikTok is shared by many, including small business owners in Montana. “There are a lot of small businesses that operate via TikTok, and […] don’t have a storefront, work out of their homes,” said Maisie Gospodarek, a Missoula-based business owner who’s used TikTok to reach a larger audience and see business grow, to NBC Montana.

Gospodarek adds that a potential statewide ban on TikTok “would be detrimental to a lot of people,” damaging businesses.

The lawsuit alleges that SB 419 violates the plaintiffs’ First Amendment rights. The content creators claim that Montana does not have any authority over matters of national security, challenging the reason that SB 419 was introduced in the first place.

“The law takes the broadest possible approach to its objectives, restricting and banning the protected speech of all TikTok users in Montana to prevent the speculative and unsubstantiated possibility that the Chinese government might direct TikTok Inc., or its parent, to spy on some Montana users,” the lawsuit states.

This controversial law, officially known as the Montana Social Media Accountability Act, was signed amid growing concern by local lawmakers, Congress and the White House that the app could provide user data to the Chinese government and, in turn, influence content in the U.S.

“To protect Montanans’ personal and private data from the Chinese Communist Party, I have banned TikTok in Montana,” tweeted Gov. Gianforte.

The law is slated to take effect on January 1, 2024, and imposes stringent regulations on TikTok and punishes app stores that allow users to download it.

TikTok will be fined $10,000 for every attempt from users to access it in the state of Montana and an additional $10,000 per day for every day TikTok continues to allow access to a Montana-based user.

For app stores like Google Play and Apple’s app store, the tech giants will face similar penalties if TikTok remains available for download for Montana users. Individual users will not be fined for accessing the app, however.

“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,” the suit contends. “Even if Montana could regulate any of the speech that users share through TikTok, the law wields a sledgehammer when the First Amendment requires a scalpel.”

The plaintiffs also assert that the law unjustifiably singles out TikTok, while other social media platforms with similar features remain unaffected.

While Montana lawmakers supportive of this ban argue that the law is a pro-active step to protect users, especially minors, from potential harm associated with social media addiction and online predators, critics of the law believe that it is an overreach of government power.

“It’s not enough to point to a real problem. The mechanism you use to address the problem has to survive constitutional scrutiny,” said Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University, in an interview with First Amendment expert Floyd Abrams. “And I don’t think that these kinds of bans can survive that scrutiny.”

Jaffer likened the federal government’s proposal to ban TikTok — and what Montana has now down — to authoritarianism, calling the move a “hallmark” of restrictive regimes.