• by Wendy Davis  @wendyndavis, May 19, 2023

Five Montana residents are asking a federal judge to block the state's new TikTok ban on the grounds that the law violates the First Amendment.

“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,” Samantha Alario and four other users of the Chinese-owned app allege in a complaint filed Wednesday, shortly after the law was signed by Governor Greg Gianforte.

The new law prohibits app stores from offering TikTok to users in Montana, and prohibit from the use of TikTok in the state (with some exceptions for law enforcement). The measure doesn't penalize users, but provides for sanctions starting at $10,000 per violation against TikTok and mobile app marketplaces.

The users say they create and share videos on the app, and have “amassed significant audiences who tun in by the thousands to stream and engage with their content.”

Alario alleges that she uses TikTok to promote her swimwear business, as well as for entertainment and education.

Another plaintiff, U.S. Marine Corps veteran Heather DiRocco, says she creates and shares content with more than 200,000 TikTok followers.

She alleges that the account, which she uses “to connect with other veterans and to create content on topics including comedy, makeup, and mental health,” is now “so popular that it generates a substantial portion of her income.”

The TikTok users are asking a federal district court judge in Missoula to declare the law unconstitutional and prohibit the state from enforcing the measure, arguing it will “irreparably harm” them.

“By shuttering an entire forum for expression, the law will immediately and permanently deprive plaintiffs of their ability to express themselves and communicate with others,” the users add.

Numerous states have recently banned the use of TikTok on government-owned devices or public WiFi networks, but Montana is the first to enact legislation prohibiting people from accessing TikTok on private devices or networks.

As with other states' efforts to restrict TikTok, the Montana bill was largely driven by concerns that TikTok's parent company, ByteDance, shares data about U.S. users with China.

Digital rights groups and the tech industry opposed the ban, arguing it violates the First Amendment and isn't necessary to protect national security.

The TikTok users argue in their new lawsuit that only the federal government can pass laws aimed at foreign policy.

“Montana has no authority to enact laws advancing what it believes should be the United States foreign policy or its national security interests,” the complaint states.