TikTok argues Montana ban violates first amendment

The US state of Montana wants to ban app stores from offering popular Chinese-owned social media service TikTok, a move that has profound free speech implications.

Montana made the announcement last week, which seems to set all kinds of legal precedents. Unsurprisingly TikTok is challenging the move, filing a lawsuit asserting that the ban shouldn’t be allowed for the following reasons:

  • It violates the first amendment rights of TikTok and its users, specifically as it “effects a prior restraint on the speech of Plaintiff and other TikTok users, unconstitutionally shutting down the forum for speech for all speakers on the app and singling these speakers out for disfavored treatment with the content-based rationale that videos on TikTok are harmful to minors.”
  • It’s not the business of individual states to act on matters of federal jurisdiction, such as “the security of U.S. user data vis-à-vis the Chinese government.”
  • It “violates the Commerce Clause of the U.S. Constitution, which limits the authority of States to enact legislation that unduly burdens interstate and foreign commerce.”
  • It singles out TikTok over other social media platforms for punitive reasons based on speculative concerns.

On the face of it this seems like a strong legal case. Not only was it odd for Montana to act unilaterally on this matter but it’s hard to see how such a ban could be enforced. Will it try to force individual users to uninstall the app? Good luck with that. The precedent set by individual states drafting laws like this on the fly would appear to invite chaos, which is why the US supposedly has clear rules about where legislative power lies.

But the broader freedom-of-speech issue could be where the most significant legal precedent is set. As detailed in the video from its CEO below, almost half of the US has chosen to use TikTok and the removal of such a major communications platform by the government appears to have obvious first amendment implications.

@tiktokOur CEO, Shou Chew, shares a special message on behalf of the entire TikTok team to thank our community of 150 million Americans ahead of his congressional hearing later this week.♬ original sound – TikTok

That appearance before Congress turned into a five-hour ordeal consisting largely of grandstanding politicians throwing often speculative accusations at Chew. Both social media and China have become highly politicised matters, especially in the US, so it’s no surprise to see TikTok subjected to such scrutiny. But banning its own citizens from using an app they are fond of has implications far beyond the tactics of America’s diplomatic cold war with China.


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