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TikTok creators say Montana law-makers have taken a sledgehammer to the First Amendment
By Chris Cooke | Published on Friday 7 July 2023
The group of TikTok creators who are seeking to stop the video-sharing app from being banned in the US state of Montana submitted a new legal filing with the courts this week, requesting a preliminary injunction that would basically ban the ban.
Law-makers in Montana have backed a law, known as SB419, which will stop the distribution of the TikTok app within the state from the start of next year. The ban is mainly a response to the ongoing concerns in political circles that the Chinese government has access to TikTok user-data via the app’s China-based owner Bytedance. Though concerns have also been raised about TikTok exposing children to content that encourages reckless behaviour.
Five TikTok creators are involved in the lawsuit which argues that SB419 is unconstitutional, in particular infringing the free speech rights contained in the First Amendment of the US Constitution. Their legal action is being financed by TikTok itself, which has also filed its own lawsuit. Though the two separate lawsuits have now been consolidated by the judge overseeing the litigation.
The new legal filing setting out the case for a preliminary injunction that would stop SB419 from going ahead states: “Although SB419 purports to safeguard national security and protect children from dangerous content, Montana has no authority to enact laws advancing its own view of United States foreign policy or national security interests, nor may the state ban an entire medium based on perceptions that some speech shared through that medium is unsuitable for children”.
Not only that, but “even if Montana could regulate any speech that users share through TikTok”, SB419 is inappropriate, it argues. Because, any attempts to refine and restrict the First Amendment “requires a scalpel”, whereas: “SB419 wields a sledgehammer”.
“SB419’s constitutional defects are extraordinary” the legal filing then claims, reckoning that it violates multiple elements of US constitutional law, including the Foreign Affairs Doctrine and Commerce Clause as well as the good old First Amendment.
Plus SB419 “is preempted by the International Emergency Economic Powers Act, and Section 721 of the Defense Production Act, which authorise the President and Committee On Foreign Investment In The United States – not states – to address putative national security risks posed by foreign economic actors”.
With all that in mind, “plaintiffs respectfully request an order enjoining SB 419 in its entirety”.
It remains to be seen how the state’s Attorney General Austin Knudsen now responds. He previously said, when asked about the TikTok creators’ lawsuit: “We expected a legal challenge and are fully prepared to defend the law”.
