TikTok V Montana

Case 9:23-cv-00061-DLC Document 1 Filed 05/22/23 Page 1 of 62
Alexander A. Berengaut*
Megan A. Crowley*
COVINGTON & BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
(202) 662-5367
aberengaut@cov.com
mcrowley@cov.com
*pro hac vice application forthcoming
Rob Cameron
Nathan D. Bilyeu
JACKSON, MURDO & GRANT, P.C.
203 North Ewing
Helena, MT 59601
(406) 389-8244
rcameron@jmgattorneys.com
nbilyeu@jmgattorneys.com
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
___________________________________________
)
TIKTOK INC., )
)
Plaintiff, )
) Civil Action No. ___________
v. )
) COMPLAINT FOR DECLARATORY
AUSTIN KNUDSEN, in his official ) AND INJUNCTIVE RELIEF
capacity as Attorney General of the )
State of Montana, )
)
Defendant. )
_______________________________)
Plaintiff TikTok Inc., for its Complaint against Defendant Austin Knudsen,
in his official capacity as Attorney General of the State of Montana, alleges as
follows:
INTRODUCTION
1. This action seeks to prevent the State of Montana from unlawfully
banning TikTok, a short-form video sharing platform that empowers hundreds of
thousands of users in Montana to communicate and express themselves, primarily
through creating, sharing, and interacting with short-form videos on topics “as
diverse as human thought.” Reno v. ACLU, 521 U.S. 844, 870 (1997). Montana’s
ban abridges freedom of speech in violation of the First Amendment, violates the
U.S. Constitution in multiple other respects, and is preempted by federal law.
2. Every month, more than 150 million Americans use TikTok to
express themselves and connect with others. Montanans use TikTok to
communicate with each other and others around the world on an endless variety of
topics, from business to politics to the arts, by creating and sharing videos, sending
messages to each other, and interacting with each other’s content. By fostering
connections among individuals, TikTok has become home to thousands of different
communities and a thriving forum for a wide range of businesses and entrepreneurs
to communicate about their products and services.
2
3. On May 17, 2023, the Governor of Montana signed An Act Banning
TikTok in Montana (the “TikTok Ban” or the “Ban”), which prohibits the
operation of TikTok throughout the State. A copy of the TikTok Ban is attached as
Exhibit A to this Complaint. To enforce the TikTok Ban, the legislation imposes a
$10,000 penalty for each “discrete violation,” defined as any time an individual in
Montana accesses TikTok, is offered the ability to access TikTok, or is offered the
ability to download TikTok. The TikTok Ban—including its substantial
penalties—is set to take effect January 1, 2024.
4. The State has enacted these extraordinary and unprecedented
measures based on nothing more than unfounded speculation. Specifically, the
State claims that the government of the People’s Republic of China (“China”)
could access data about TikTok users, and that TikTok exposes minors to harmful
online content. Yet the State cites nothing to support these allegations, and the
State’s bare speculation ignores the reality that Plaintiff has not shared, and would
not share, U.S. user data with the Chinese government, and has taken substantial
measures to protect the privacy and security of TikTok users, including by storing
all U.S. user data by default in the United States and by erecting safeguards to
protect U.S. user data. TikTok has also implemented safeguards to foster a safe
environment for all users, including teens.
3
5. Ignoring these facts and the federal statutory framework already in
place to address any purported concerns about foreign government access to
TikTok user data, the State has mandated a complete and total ban of TikTok in
Montana. It has done so despite the availability of more targeted measures to
address its purported concerns. In less than eight months, no resident of, visitor to,
or worker passing through Montana will be able to download TikTok on his or her
phone or mobile device, post any videos to TikTok for others to see, or view any
content on the platform.
6. Acknowledging “legal concerns” about the TikTok Ban, the Montana
Governor suggested changes to the legislation after it had already been passed by
the Montana Legislature.1 Those changes would have shifted the Ban’s focus from
TikTok specifically (and the content on the TikTok platform) to social media
applications connected to foreign entities more generally. But the Legislature did
not consider the Governor’s suggested changes—which were legally problematic
in their own right—and yet the Governor signed the TikTok Ban into law anyway.
This unprecedented and extreme step of banning a major platform for First
Amendment speech, based on unfounded speculation about potential foreign
1
Haleluya Hadero, Montana Gov Seeks To Expand TikTok Ban to Other Social
Apps, ASSOCIATED PRESS (Apr. 26, 2023), https://apnews.com/article/tiktok-ban-
montana-bytedance-b735350b367c3f3a0076eaf1267dab18.
4
government access to user data and the content of the speech, is flatly inconsistent
with the Constitution.
7. The TikTok Ban is unlawful and should be enjoined for multiple,
independent reasons. Specifically:
a. First Amendment. The TikTok Ban violates Plaintiff’s First

Amendment rights. Through TikTok, Plaintiff exercises its
constitutionally protected editorial judgment on whether, and how,
to host, disseminate, and promote third-party speech created by
others, and also shares its own content with users in Montana about
a variety of issues and current events. The TikTok Ban, however,
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.
b. Federal Preemption. The TikTok Ban is preempted by federal

law because it intrudes upon matters of exclusive federal concern.
The TikTok Ban is based on the State’s purported concern about
the security of U.S. user data vis-à-vis the Chinese government.
But foreign affairs and national security are matters over which the
U.S. Constitution vests exclusive authority in the federal
government, not the States. Indeed, Congress has created a
specific federal regulatory process by which the purported national
security concerns that have animated this legislation may be
addressed. The TikTok Ban would necessarily disrupt and
interfere with that process, which is currently underway.
c. Commerce Clause. The TikTok Ban 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. By banning Plaintiff from operating TikTok
within Montana, the TikTok Ban imposes a state-specific ban on a
communication platform that is national (indeed, international) in
scope. The Ban interferes with TikTok’s operation and availability
5
to users in other States and it risks disrupting the flow of travel and
commerce between States.
d. Bill of Attainder. The TikTok Ban is an unconstitutional bill of

attainder. Rather than regulate social media companies more
generally, the Ban banishes TikTok, and just TikTok, from the
State for purely punitive reasons, as evidenced by the State’s
decision to single out Plaintiff for harsh penalties based on
speculative concerns about TikTok’s data security and content
moderation practices.
8. To halt this unlawful conduct, Plaintiff seeks a declaratory judgment
and order invalidating and preliminarily and permanently enjoining Defendant
from enforcing the TikTok Ban.
JURISDICTION AND VENUE
9. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331
because this action arises under the U.S. Constitution and federal law. This Court
also has jurisdiction under 28 U.S.C. § 1343(a)(3) to redress deprivations “under
color of any State law, statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United States.”
10. The Court has authority to grant declaratory and injunctive relief
pursuant to 42 U.S.C. § 1983; the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et
seq.; the All Writs Act, 28 U.S.C. § 1651; and the Court’s inherent equitable
powers.
11. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1)
because the only Defendant, the Attorney General of Montana, resides in this
6
district. Venue is also proper in this district under 28 U.S.C. § 1391(b)(2) because
a substantial part of the events or omissions giving rise to this action occurred in
this district.
12. Venue is proper in this division pursuant to Local Rule 3.2(b) and
Mont. Code § 25-2-125. Based on IP address information for March 2023,
Plaintiff estimates that approximately 110,000 monthly active users accessed
TikTok in the counties within the Missoula Division, which was the greatest
concentration of TikTok users for any division of the District of Montana.
13. On May 17, 2023, a related case was filed in this division by five
individual TikTok users residing in Missoula, Bozeman, and Custer, who also
allege that the TikTok Ban violates the First Amendment and other provisions of
federal law. See Alario et. al v. Knudsen, No. 23-cv-00056 (D. Mont. May 17,
2023). That related case involves common questions of law and fact with this suit.
PARTIES
A. Plaintiff
14. Plaintiff TikTok Inc. is a company incorporated in California, with its
principal address in Culver City, California. The TikTok platform is provided in
the United States by TikTok Inc.
7
B. Defendant
15. Defendant Austin Knudsen is the Attorney General of Montana and is
sued in his official capacity. The TikTok Ban charges the Montana Department of
Justice, of which Attorney General Knudsen is the head, with its enforcement.
FACTUAL ALLEGATIONS
A. TikTok is a Popular and Important Platform for Users to

Communicate With Others Through a Wide Range of Expression
and Creative Content.
16. TikTok is a short-form video sharing platform that enables users to
create, share, and view videos. TikTok encourages users to celebrate what makes
them unique, while finding a community that does the same. TikTok’s mission is
“to inspire creativity and bring joy.”2
17. TikTok users can both create and share their own videos and watch
and interact with videos posted by others, such as by “liking” a video or posting a
comment on it. To help TikTok users connect with others who post video content
that would be interesting to them, TikTok offers a “For You” page, which opens to
a stream of videos that is curated by TikTok’s recommendation system. TikTok
users can also use TikTok’s “Discover” page to explore diverse content by
searching for particular topics in videos posted by other users. In addition, TikTok
2
Our Mission, TIKTOK, https://www.tiktok.com/about?lang_en (last visited May
22, 2023).
8
recently introduced a “STEM” initiative in the United States to provide users with
a dedicated space to explore video content related to science, technology,
engineering, and math.
18. In addition to sharing and commenting on videos, TikTok users can
connect with one another in a variety of ways. For example, users can “tag” other
users in the comments, use the app’s “duet” and “stitch” tools to create new
content that incorporates and responds to content created by others, use the
“TikTok LIVE” feature to communicate live with others on the platform, and send
direct messages to one another.3
19. TikTok is operated by and provided in the United States by a U.S.
company, Plaintiff TikTok Inc. Plaintiff is led by an executive team located in the
United States and Singapore and has offices across the United States, including in
Los Angeles, New York, and Washington, D.C. Plaintiff has almost 7,000
employees in the United States. The TikTok platform is not available in China.
20. Plaintiff is ultimately owned by ByteDance Ltd. (“BDL”). BDL is a
global company incorporated in the Cayman Islands that conducts business
through local subsidiaries, such as Plaintiff TikTok Inc. and other TikTok
operating entities. BDL is a privately owned company. Roughly sixty percent of
3
As discussed below, certain age restrictions apply to TikTok features for users
under 18. See also Guardian’s Guide, TIKTOK,
https://www.tiktok.com/safety/en/guardians-guide (last visited May 22, 2023).
9
BDL is beneficially owned by global institutional investors, such as Carlyle Group,
General Atlantic, and Susquehanna International Group; approximately twenty
percent of the company is owned by the company’s subsidiaries’ employees
around the world; and approximately twenty percent is owned by the company’s
founder, who is a private individual and is not part of any state or government
entity.
21. TikTok was first launched globally in 2017 and re-launched in the
United States in August 2018. Within a year-and-a-half, TikTok had nearly 40
million U.S. monthly active users. In September 2021, TikTok surpassed more
than 1 billion monthly active users worldwide. As of March 2023, more than 150
million Americans use TikTok every month.
22. TikTok operates in all fifty States and more than 170 countries. Users
can access TikTok on their phones, computers, and other mobile devices to create,
share, view, and interact with video content to and from other users around the
country and the world.
23. TikTok enables users to express themselves creatively to others. The
range of expression between users on TikTok is vast and diverse, including music,
art, sports, food, pets, hobbies, books, civic engagement, religion, and politics.
Popular videos with millions of views span these topics and beyond. For example,
10
one of the most popular videos ever on TikTok is a video of a magician pretending
to fly on a broomstick, which has been viewed over 2 billion times.4
24. TikTok has evolved into a community in which individuals who might
otherwise feel isolated are able to share their experiences with each other and
advocate for one another. TikTok fosters these communities, which can act as
important support groups for groups such as recovering alcoholics and people
living with rare diseases.5 For example, a recent news story highlighted a
supportive community on TikTok composed of individuals who care for dementia
patients.6 These caregivers post short-form videos on the app that share their
experiences with—and provide practical advice for—caring for loved ones with
dementia. These videos provide caregivers with a “strong sense of community”
that helps them “weather the highs and lows” of serving as a caregiver.7
4
Zach King (@zachking), TIKTOK, https://www.tiktok.com/t/ZTR3xCjdv (last
visited May 22, 2023).
5
AJ Willingham, Leah Asmelash, & Scottie Andrew, The Biggest Ways TikTok
Has Changed American Culture, CNN (Apr. 2, 2023),
https://edition.cnn.com/2023/04/02/us/tiktok-american-culture-effects-
cec/index.html.
6
#Dementia TikTok is a Vibrant, Supportive Community, NAT’L PUBL. RADIO
(Oct. 12, 2022), https://www.npr.org/2022/10/12/1128358073/-dementia-tiktok-is-
a-vibrant-supportive-community.
7
Id.
11
25. In Montana and elsewhere, individuals use TikTok to communicate
and connect with one another and share their unique experiences and life stories
with others around the world. As just one example, a rancher in Montana, whose
TikTok username is @bigskycaroline, has fostered a community of over 88,000
followers by sharing videos of her experiences caring for sheep and other animals
on her ranch.8 Her videos have received over 1.2 million likes.9
26. The vast majority of content on TikTok is affirming, healthy, and
suitable for all users. A particularly popular community on TikTok, for example,
is #BookTok, where individuals discuss, recommend, and celebrate literature.
Videos with the hashtag #BookTok have over 100 billion views.10 “BookTok is
widely believed to have driven a big bump in book sales and increased the
popularity of reading in general.”11
27. Beyond serving as a forum for users to enjoy entertaining content and
find supportive communities, TikTok also enables users to engage in civic
discourse with each other. Many teachers, for example, “leverage their TikTok
8
Big Sky Caroline (@bigskycaroline), TIKTOK,
https://www.tiktok.com/@bigskycaroline? (last visited May 22, 2023).
9
Id.
10
#BookTok, TIKTOK, https://www.tiktok.com/tag/booktok (last visited May 22,
2023).
11
TikTok Users Report Reading 50% More Because of BookTok, BOOK RIOT
(May 16, 2023), https://bookriot.com/booktok-survey/.
12
platforms to highlight serious issues in education and the teaching profession.”12
More broadly, TikTok users of all stripes communicate and express their views on
the app about the issues they care about, including individual rights and health
care.13 Many of the app’s features, such as the “stitch” tool and in-video comment
replies, provide users with an “organic way to comment on political
information.”14
28. TikTok is also a forum for users to express their faith. Through
TikTok, individuals of diverse faiths connect with others throughout the world to
share aspects about their faith and answer questions about their beliefs.15 For
example, the hashtag #christiantiktok has over 40 billion views.16
12
Hayley Hardison, How Teachers Use TikTok: To Get New Ideas, Feel Inspired,
and Indulge a Laugh or Two, EDUCATION WEEK (Feb. 14, 2023),
https://www.edweek.org/teaching-learning/how-teachers-use-tiktok-to-get-new-
ideas-feel-inspired-and-indulge-a-laugh-or-two/2023/02.
13
Jacob Fulton, Gen Z Activists Worry That University TikTok Bans Could Hurt
Their Ability to Organize, BOSTON GLOBE (Feb. 2, 2023),
https://www.bostonglobe.com/2023/02/02/nation/gen-z-activists-worry-that-
university-tiktok-bans-could-hurt-their-ability-organize/.
14
Sofia Andrade, The Growing Political Power of TikTok, THE NATION (Jan. 25,
2023), https://www.thenation.com/article/politics/tiktok-election-gen-z-voters/.
15
John Reynolds, TikTok is Helping Us Reach Millions with the Gospel, PREMIER
CHRISTIANITY (Aug. 22, 2022), https://www.premierchristianity.com/real-
life/tiktok-is-helping-us-reach-millions-with-the-gospel/13647.article.
16
#christiantok, TIKTOK, https://tiktok.com/tag/christiantiktok?lang=en (last
13
29. Although TikTok does not permit political advertising or campaign
fundraising on its platform,17 TikTok is an increasingly important channel for
constituents and voters to obtain information and advocacy directly from elected
officials and political candidates and to send and receive information and
encouragement about exercising the right to vote.18 American politicians from
across the political spectrum communicate on TikTok.19 These politicians use
TikTok to communicate with voters in an informal and accessible way.
30. Operating and using TikTok is also a form of expression for Plaintiff
itself. One way Plaintiff expresses itself is through the content it promotes on the
platform. For example, Plaintiff recently launched a campaign called “EduTok,”
which encourages users to create and share educational and motivational content
17
TikTok’s Stance on Political Ads, TIKTOK,
https://www.tiktok.com/creators/creator-portal/community-guidelines-and-
safety/tiktoks-stance-on-political-ads (last visited May 22, 2023).
18
See, e.g., Lindsay Gorman & Nash Miller, Not Just Dance Videos: How
Candidates Are Using TikTok in the US Midterms, ALL. FOR SECURING
DEMOCRACY (Oct. 31, 2022), https://securingdemocracy.gmfus.org/candidates-
tiktok-us-midterm-elections-2022/; TikToks to Get Out the Vote, LEAGUE OF
WOMEN VOTERS (Sept. 20, 2022), https://www.lwv.org/blog/tiktoks-get-out-vote
(“There are a million ways to get-out-the-vote (GOTV), and when it comes to
reaching new voters, one of the best methods is via the incredibly popular video
app, TikTok!”).
19
Cat Zakrzewski, Naomi Nix & Taylor Lorenz, As Midterms Loom, TikTok Faces
its Next Political Test, WASH. POST (Oct. 31, 2022),
https://www.washingtonpost.com/technology/2022/10/31/tiktok-faces-2022-
midterm-elections.
14
on a variety of themes. Plaintiff has also launched other campaigns to share public
interest content. Through special effects, filters, and stickers offered by the
platform, TikTok users have the ability to share their perspectives about these
public interest issues.
31. Plaintiff also expresses itself through its own account, which has more
than 70 million followers, and through which Plaintiff shares messages with users
about a variety of issues and current events, including, for example, Plaintiff’s
support for small businesses and Earth Day.
32. TikTok is also a platform through which individuals, including many
TikTok users in Montana, earn a living.20 Small businesses use TikTok to reach
new audiences and grow their businesses, and for some, success can happen
overnight.21 Based on this kind of success, “[m]any small businesses that rely on
TikTok for marketing don’t want to see it go, saying it’s changed their lives.”22
20
See, e.g., Madison Malone Kircher, In Montana, Creators Await—and Dread—a
TikTok Ban, N.Y. TIMES (May 18, 2023),
https://www.nytimes.com/2023/05/18/style/montana-tiktok-ban-influencers.html.
21
Kristin Merkel, Montana Business Owners Say They’re Concerned by Possible
TikTok Ban in the State, KBZK 7 BOZEMAN (Mar. 14, 2023),
https://www.kbzk.com/news/local-news/montana-legislature-tiktok-ban-business-
owners.
22
Dominic Vitiello, Some Local Businesses Disheartened by Potential Statewide
TikTok Ban, NBC MONTANA (Apr. 11, 2023),
https://nbcmontana.com/news/local/some-local-businesses-disheartened-by-
potential-statewide-tiktok-ban#.
15
33. For instance, Montana resident Shauna White Bear is an artisan who
uses TikTok to promote her business, White Bear Moccasins.23 White Bear has
over 70,000 followers on TikTok and communicates with her customers by, among
other things, posting informative, creative videos showing how she makes bison
leather moccasins. Hundreds of Montana businesses, like White Bear Moccasins,
use TikTok to boost sales and find new customers.24
34. In 2020, TikTok launched the TikTok Creator Fund to support its
users in creating and sharing content on the platform. In 2021, TikTok announced
that it would invest $1 billion in the fund to support U.S.-based creators who make
and share videos with others on the platform. U.S. users who are at least 18 years
old and meet certain other criteria are eligible to participate in, and can receive
funds from, the Creator Fund to help them further their creative pursuits on the
app.
B. Plaintiff Has Implemented Safeguards to Protect the Privacy and

Security of U.S. User Data.
35. TikTok is popular because people feel comfortable on the platform
expressing themselves openly and creatively. A priority for Plaintiff is therefore
23
white_bear_moccasins (@whitebearmocs), TIKTOK,
https://www.tiktok.com/@whitebearmocs?lang=en (last visited May 22, 2023).
24
A Message to Our Community in Montana, TIKTOK (Mar. 13, 2023),
https://newsroom.tiktok.com/en-us/stop-montana-ban.
16
maintaining a safe and supportive environment on TikTok. Part of this mission is
designing and operating TikTok in a way that protects the privacy and security of
U.S. user data.
36. Privacy is built into TikTok by design, including through the app’s
data collection practices. As set out in its Privacy Policy and like other platforms,
TikTok collects certain information from its U.S. users, such as username, date of
birth,25 and, depending on the process by which a user signs up for TikTok, the
user’s phone number or email address.26 TikTok does not, however, require users
to provide their real names during registration, nor does TikTok ask its users about
their employment or relationship status. Moreover, current versions of the TikTok
app do not collect precise or approximate GPS information from U.S. users.
37. With respect to the limited data that TikTok does collect from U.S.
users, Plaintiff devotes significant resources to keeping that data secure. The
centerpiece of Plaintiff’s data security efforts is an unprecedented initiative
dedicated to safeguarding U.S. user data and addressing national security concerns
expressed by the U.S. government. To date, over $1.5 billion has been spent on
Plaintiff’s initiative.
25
Dates of birth are necessary for Plaintiff to provide an age-appropriate
experience to users.
26
Privacy Policy, TIKTOK (last updated Mar. 21, 2023),
https://www.tiktok.com/legal/privacy-policy?lang=en.
17
38. In furtherance of this initiative, Plaintiff has formed a special-purpose
subsidiary, TikTok U.S. Data Security Inc. (“USDS”), that will oversee protected
U.S. user data and the underlying TikTok U.S. platform. To provide further
assurance and protection, TikTok has also contracted with Oracle Corporation, a
prominent U.S. public company and provider of cloud-based services, to store
TikTok’s U.S. user data. TikTok currently routes 100% of U.S. user traffic to
Oracle and USDS-controlled infrastructure in the United States.
39. Oracle also provides a variety of other services for TikTok. For
example, USDS is running the recommendation system for U.S. users, which
determines what appears in their “For You” page, in the Oracle Cloud
infrastructure. Oracle has also begun inspecting TikTok’s source code, which will
ultimately serve to identify instances of potential malicious code or security
vulnerabilities. No other social media company or entertainment platform provides
this type of access and transparency to third-party entities.
40. As these and other efforts show, Plaintiff is committed to
safeguarding U.S. user data against unauthorized access from outside the United
States, including by any foreign government. Plaintiff has never shared, or
received a request to share, U.S. user data with the Chinese government. Nor
would Plaintiff honor such a request if one were ever made.
18
C. TikTok Has Safeguards in Place to Moderate Harmful Content

and Protect Minor Users.
41. Another aspect of Plaintiff’s commitment to creating a safe and
supportive environment is protecting TikTok users against harmful content that
might be uploaded to the platform. Safety and wellness—particularly for minors—
is a core priority for Plaintiff. By deciding what content is (and is not) appropriate
on the platform, Plaintiff exercises its editorial judgment as to what kind of
community it wants to foster on TikTok.
42. While the vast majority of content on TikTok is suitable for all
TikTok users, the reality of modern communication is that some users will
inevitably seek to share content that is inappropriate and harmful. All online
platforms that host user-generated content face this challenge. In response, TikTok
maintains a multi-layered set of product features, policies, and procedures to help
protect its users—and minor users in particular—against inappropriate and harmful
content.
43. TikTok enforces rules governing the scope of permissible content on
TikTok, which it has labeled its Community Guidelines. The Guidelines, which
are available to users and the general public, prohibit certain categories of videos,
including those featuring nudity, sexual activity, and sexually explicit or
exploitative content, as well as videos that appear dangerous or otherwise harmful.
19
The Community Guidelines were created and are continually refined in
consultation with third-party experts.
44. A stated basis for the TikTok Ban is that “TikTok fails to remove, and
may even promote, dangerous content that directs minors to engage in dangerous
activities.” In fact, TikTok dedicates a section of its Community Guidelines to
forbidding “[d]angerous activities and challenges.” As that section explains,
TikTok “do[es] not allow showing or promoting dangerous activities and
challenges . . . includ[ing] . . . activities that may lead to significant physical
harm.”27
45. TikTok uses both technology and human moderators to remove
content that violates the Community Guidelines. In the fourth quarter of 2022,
96.2% of content identified as violative was removed before receiving any reports
from users or others.28 In 91.2% of cases during the same time period, the removal
occurred within 24 hours of when the content was posted, and in 84.7% of cases,
the removal occurred before the video received any views. For videos deemed to
violate the Guideline against “dangerous acts and challenges” during this same
27
Community Guidelines, TIKTOK (Mar. 2023),
https://www.tiktok.com/community-guidelines/en/mental-behavioral-health/#3.
28
Community Guidelines Enforcement Report, TIKTOK (Mar. 31, 2023),
https://www.tiktok.com/transparency/en/community-guidelines-enforcement-2022-
4/.
20
time period, TikTok proactively removed 96.0% of videos before they were
reported, with 82.2% removed within 24 hours of being posted on the platform.
TikTok removed 70.5% of the videos identified as involving dangerous acts or
challenges before they received any views.
46. TikTok is an active member of the Technology Coalition, an
organization that works to protect children from online sexual exploitation and
abuse. TikTok screens content for signs of potential predatory or abusive
behavior. TikTok’s moderation system is automated to identify content, including
videos, captions, and comments, that violate TikTok’s Youth Safety and Wellbeing
Policy. Every video uploaded to TikTok goes through automated moderation, and
potentially violative content can be automatically removed or escalated for human
review by teams of trained moderators.
47. For U.S. users under 13, TikTok provides a different, age-appropriate
experience, with stringent safeguards and privacy protections designed specifically
for this age group. In this experience, users under 13 can view fun, creative, and
educational videos that are vetted by a third-party expert, Common Sense
Networks. These users cannot post videos on the platform, comment on others’
videos, exchange messages with others, or maintain a profile or followers.
48. Similarly, TikTok provides age-appropriate settings and controls for
its teen users. For users between 13 and 16, TikTok sets their accounts to private
21
by default. For example, such accounts are prevented from sending direct
messages, and their content is ineligible for recommendation into the “For You”
page. TikTok also prevents teens from receiving late-night push notifications and
gives parents and guardians the ability to create further restrictions on
notifications. Another safety feature is that users under 18 cannot host LIVE.
49. TikTok’s parental control feature, Family Pairing, allows a parent to
link their TikTok account to their child’s account and set certain parental controls,
including restricting the child’s ability to search for content, limiting the amount of
time the child may spend on TikTok, and preventing other users from commenting
on the child’s videos. These controls have been recognized by independent experts
as “the most comprehensive” in the industry.29
50. TikTok continues to enhance its robust existing safety settings for teen
accounts. For example, in March 2023, after consulting with the Digital Wellness
Lab at Boston Children’s Hospital, TikTok announced that every account
belonging to a person under age 18 will have a 60-minute daily screen time limit
by default. If the 60-minute limit is reached, teens will be prompted to enter a
passcode in order to continue watching, requiring them to make an active decision
to extend that time. In the under-13 experience, the daily screen time limit will
29
Julie Jargon, How to Use Parental Controls on YouTube, TikTok, Instagram and
Snapchat, WALL ST. J. (Apr. 16, 2022), https://www.wsj.com/articles/how-to-use-
parental-controls-on-youtube-tiktok-instagram-and-snapchat-11650065233.
22
also be set to 60 minutes, and a parent or guardian will need to set or enter a
passcode to enable 30 minutes of additional watch time.
D. The Montana Government’s Ban of TikTok in the State.
51. Notwithstanding Plaintiff’s ongoing efforts to provide all users,
including Montanans, with a robust set of privacy, security, and safety protections,
on April 14, 2023, the Montana Legislature took the unprecedented step of passing
An Act Banning TikTok in Montana. Before the Act reached Governor
Gianforte’s desk, the Governor suggested amendments to the Act that would have
shifted its focus from targeting TikTok specifically to social media applications
connected to foreign entities more generally. The Governor’s office stated that
these suggested changes were meant to address the Act’s “technical and legal
concerns.”30 The Legislature did not consider the Governor’s suggested changes,
and Governor Gianforte signed the TikTok Ban into law anyway on May 17, 2023.
52. Supporters of the TikTok Ban made clear that its purpose was to
target China. The bill’s primary sponsor, Sen. Shelley Vance, stated in a
March 28, 2023 hearing that the bill “puts an end to China’s surveillance operation
in Montana.” At a floor session on April 13, 2023, another sponsor of the bill,
30
Haleluya Hadero, Montana Gov Seeks to Expand TikTok Ban to Other Social
Apps, ASSOCIATED PRESS (Apr. 26, 2023), https://apnews.com/article/tiktok-ban-
montana-bytedance-b735350b367c3f3a0076eaf1267dab18.
23
Rep. Brandon Ler, linked TikTok to the balloon shot down in Montana and stated:
“I believe it’s time we stand up to the Chinese and ban TikTok.”
53. The TikTok Ban does precisely what its formal name (“An Act
Banning TikTok”) suggests. See Ex. A Section 1(1). Specifically, it prohibits “the
operation of tiktok” within the territorial jurisdiction of Montana and bans any
efforts by Plaintiff or app stores to afford anyone in Montana “the option to
download the tiktok mobile application.” Id.
54. To enforce the TikTok Ban, the legislation imposes a $10,000 penalty
for each “discrete violation,” defined as any time “a user accesses tiktok, is offered
the ability to access tiktok, or is offered the ability to download tiktok” in the State.
Id. Sections 1(2), 1(7)(a). Such penalties accrue against Plaintiff and any “mobile
application store,” but not against any “users of tiktok.” Id. Sections 1(5), 1(7)(b).
55. The ramifications of the TikTok Ban are sweeping. By banning
TikTok, the State has taken the unprecedented step of eliminating a popular
communication and information-sharing platform that many thousands of
Montanans use to express themselves, engage in discussions with others, receive
information from others inside and outside the State, and share their viewpoints
24
with people around the world. Since Governor Gianforte signed the Ban, creators
from Montana have explained how it will harm them and their businesses.31
56. The State has also curtailed Plaintiff’s speech rights. Through the
Ban, the State has taken away the mechanism through which Plaintiff
communicates with Montana residents and exercises its editorial judgment
regarding what content to allow on the platform and what types of public interest
messaging to promote, such as EduTok.
57. To attempt to justify this sweeping prohibition, the TikTok Ban makes
a variety of unsubstantiated allegations about the threat that TikTok poses to
national security. For example, the “findings” in the legislation accuse TikTok of
“gather[ing] significant information from its users,” which it allegedly “share[s]
with the People’s Republic of China.” The findings further charge TikTok with
“stealing . . . information and data from users,” which it allegedly provides to “the
Chinese Communist Party” to enable it to engage in “corporate and international
espionage.”
31
Madison Malone Kircher, In Montana, Creators Await—and Dread—a TikTok
Ban, N.Y. TIMES (May 18, 2023),
https://www.nytimes.com/2023/05/18/style/montana-tiktok-ban-influencers.html;
Jacey Fortin, Eliza Fawcett & Jim Robbins, In Montana, a TikTok Ban Could Be a
‘Kick in the Face,’ N.Y. TIMES (May 18, 2023),
https://www.nytimes.com/2023/05/18/us/tiktok-ban-montana-reaction.html.
25
58. These allegations are entirely false. Indeed, Plaintiff has made clear,
through its actions and statements, that it shares no U.S. user data with the Chinese
government and will not do so in the future. TikTok also has a highly developed
and sophisticated content moderation program designed to provide a safe forum for
its users and to express Plaintiff’s editorial judgment as to the kind of platform
TikTok wants to be. This moderation system does not censor content to advance
the objectives of any government, and there is no evidence that TikTok has ever
been used to engage in espionage on behalf of any foreign government.
59. In any event, banning TikTok is neither necessary nor effective in
protecting user data. As privacy experts have emphasized, much of the data
collected by TikTok is no different in kind from the data routinely collected by
other apps and sources in today’s online world, which is widely available in the
data broker market. See, e.g., Alfred Ng, TikTok Fervor Sparks Push for U.S. Data
Privacy Legislation, POLITICOPRO (Mar. 22, 2023) (“Even if they actually did ban
TikTok, governments could go purchase much of the same information from
unregulated data brokers, who flourish in the U.S. with basically no laws to keep
them in check.” (quoting Evan Greer, deputy director for the digital rights group
Fight for the Future)). In other words, the TikTok Ban does not address the
concerns that purportedly animate it, and it rests not on the reality of Plaintiff’s
business, but on conjecture, hyperbole, and demonstrable falsehoods.
26
E. The TikTok Ban Encroaches on the Federal Government’s

Exclusive Authority Over Matters of National Security and
Foreign Affairs.
60. “The Constitution gives the federal government the exclusive
authority to administer foreign affairs,” Movsesian v. Victoria Versicherung AG,
670 F.3d 1067, 1071 (9th Cir. 2012) (en banc), as well as to “provide for the
common Defence . . . of the United States,” U.S. Const. art. 1, § 8, cl. 1.
61. By enacting a state law intended to address the national security
concerns purportedly posed by TikTok, Montana has intruded upon not only the
federal government’s constitutionally-assigned primacy in matters of national
security and foreign affairs, but also the comprehensive and carefully crafted
regime that Congress set up to regulate in this area.
62. Two relevant federal authorities in this area are Section 721 of the
Defense Production Act of 1950, as amended (“Section 721”), 50 U.S.C. § 4565,
and the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C.
§§ 1701–08. These statutes (described in greater detail below) authorize the
Committee on Foreign Investment in the United States (“CFIUS”) and the
President, respectively, to investigate and, if warranted, to mitigate national
security risks arising out of foreign acquisitions or other various foreign economic
activities. Furthermore, Congress is actively considering additional legislation in
this area, such as the Restricting the Emergence of Security Threats that Risk
27
Information and Communications Technology Act, or “RESTRICT Act,” which
according to the federal Executive Branch would provide the federal government
with “new mechanisms to mitigate the national security risks posed by high-risk
technology businesses operating in the United States.”32
63. Both Section 721 and IEEPA have been invoked in recent years by the
federal government in its engagement with Plaintiff and its ultimate parent
company BDL over perceived national security risks related to TikTok. Plaintiff
and BDL have been engaging with CFIUS for more than three years, including on
proposals to address perceived national security risks through a National Security
Agreement (“NSA”) that would be entered with CFIUS. These negotiations and
the engagement with CFIUS have led TikTok to restructure its U.S. business by
creating USDS to be responsible for the operation of the TikTok U.S. platform and
for the safeguarding of protected U.S. user data. Montana’s Ban ignores
Congress’s clear intention to address national security concerns at a national level
rather than to allow a patchwork of State laws.
32
Statement from National Security Advisor Jake Sullivan on the Introduction of
the RESTRICT Act (Mar. 7, 2023), https://www.whitehouse.gov/briefing-
room/statements-releases/2023/03/07/statement-from-national-security-advisor-
jake-sullivan-on-the-introduction-of-the-restrict-act/.
28
a. Section 721 and CFIUS
64. Congress enacted Section 721, which codifies CFIUS’s authority to
review foreign acquisitions of U.S. businesses, to investigate and address the sorts
of purported national security risks that Montana seeks to regulate through the
TikTok Ban.
65. CFIUS is an interagency committee of the executive branch tasked
with reviewing foreign acquisitions of U.S. businesses to determine their impact on
national security. See 50 U.S.C. §§ 4565(b)(1)(A)–(B), 4565(a)(4)(B)(i). CFIUS
is empowered to address identified national security risks arising out of
acquisitions of U.S. businesses by foreign persons by imposing or otherwise
reaching agreement with the transaction parties on conditions to address national
security concerns. Id. § 4565(l)(3)(A). The specific measures imposed by the
Committee “shall be based on a risk-based analysis, conducted by the Committee,
of the effects on the national security of the United States of the covered
transaction, which shall include an assessment of the threat, vulnerabilities, and
consequences to national security related to the transaction.” Id. § 4565(l)(4)(A).
If the risks to a particular transaction cannot be mitigated, the President is
empowered to prohibit the transaction. Id. § 4565(d).
66. In 2019, BDL was notified that CFIUS was considering whether to
review a 2017 acquisition by BDL of Musical.ly, a China-headquartered company
29
that distributed a video-sharing application also called Musical.ly. CFIUS has
sought to review the TikTok business in connection with that acquisition. Since
2019, Plaintiff has proposed a number of measures to mitigate any purported
national security concerns of the U.S. government around TikTok U.S. user data.
67. Plaintiff has already begun the implementation of these mitigation
strategies, including moving protected U.S. user data under the exclusive control of
USDS and in the cloud environment maintained by Oracle Corporation. Plaintiff
remains in discussions with the U.S. government regarding this implementation
and other safeguards. See Status Report, TikTok Inc. v. CFIUS, No. 20-1444 (D.C.
Cir. Apr. 24, 2023) (explaining that the U.S. government, Plaintiff, and BDL
“continue to be involved in ongoing negotiations to determine” whether any
national security concerns of the U.S. government related to TikTok’s data
management practices “may be resolved by mutual agreement”).
b. IEEPA
68. Congress also addressed national security concerns posed by foreign
economic activity and transactions involving foreign ownership of domestic
companies through IEEPA.
69. Enacted in 1977, IEEPA grants the President significant authority to
regulate foreign commerce upon declaring a national emergency. See 50 U.S.C.
§ 1701(a) (authorizing the President “to deal with any unusual and extraordinary
30
threat, which has its source in whole or substantial part outside the United States,
to the national security, foreign policy, or economy of the United States, if the
President declares a national emergency with respect to such threat”).
70. Specifically, IEEPA permits the president to “investigate, block
during the pendency of an investigation, regulate, direct and compel, nullify, void,
prevent or prohibit, any acquisition, holding, withholding, use, transfer,
withdrawal, transportation, importation or exportation of, or dealing in, or
exercising any right, power, or privilege with respect to, or transactions involving,
any property in which any foreign country or a national thereof has any interest by
any person, or with respect to any property, subject to the jurisdiction of the United
States.” 50 U.S.C. § 1702(a)(1)(B).33
71. IEEPA places several limitations on the President’s authority in
recognition of the limits of the First Amendment, providing that it “does not
include the authority to regulate or prohibit, directly or indirectly,” the importation
or exportation of “information or informational materials” or “personal
communication[s], which do[] not involve a transfer of anything of value.” 50
U.S.C. § 1702(b)(1), (3). IEEPA includes these limitations to “avoid[] serious
questions about the constitutionality” of IEEPA, and in an effort to “prevent the
33
The President has delegated authority to the Treasury Department’s Office of
Foreign Assets Control to “block” or “regulate” prohibited transactions under
IEEPA.
31
statute from running afoul of the First Amendment.” Cernuda v. Heavey, 720 F.
Supp. 1544, 1553 (S.D. Fla. 1989).
72. On August 6, 2020, President Trump issued an executive order
entitled “Addressing the Threat Posed by TikTok,” which purported to act under
IEEPA to prohibit “any transaction” with BDL or its subsidiaries, including
Plaintiff, by “any person, or with respect to any property, subject to the jurisdiction
of the United States.” Exec. Order No. 13942, 85 Fed. Reg. 48637. In September
2020, the Secretary of Commerce issued a list of prohibited transactions to
implement the President’s executive order.
73. On September 18, 2020, Plaintiff and BDL filed an action opposing
the prohibitions, including because they violated IEEPA’s limitation against
regulating the importation or exportation of “information or informational
materials” or “personal communication[s], which do[] not involve a transfer of
anything of value.” TikTok Inc. v. Trump, No. 20-cv-2658 (D.D.C. Sept. 18,
2020), Compl. at 40.
74. The United States District Court for the District of Columbia agreed,
and by orders dated September 27, 2020, and December 7, 2020, granted two
preliminary injunctions preventing those prohibitions from going into effect. See
TikTok Inc. v. Trump, 490 F. Supp. 3d 73, 76 (D.D.C. 2020); TikTok Inc. v. Trump,
507 F. Supp. 3d 92, 96 (D.D.C. 2020).
32
75. On June 9, 2021, President Biden issued an executive order entitled
“Protecting Americans’ Sensitive Data From Foreign Adversaries,” which, among
other things, revoked President Trump’s executive order purporting to ban under
IEEPA any U.S. transaction with BDL or Plaintiff. Exec. Order No. 14034, 86
Fed. Reg. 31423.
76. On July 14, 2021, the D.C. Circuit granted the federal government’s
motion to voluntarily dismiss the government’s appeal of those decisions. See
TikTok Inc. v. Biden, No. 20-5381, 2021 WL 3082803 (D.C. Cir. July 14, 2021).
* * *
77. As these federal statutory authorities demonstrate, Congress has
enacted a comprehensive statutory regime that takes account not only of the
country’s national security needs, but also the protection of expressive activity and
the federal government’s concurrent obligation to manage foreign affairs. The
TikTok Ban undermines, disrupts, and conflicts with this federal scheme. For
example, the TikTok Ban undermines the years-long negotiations between
Plaintiff, BDL, and CFIUS, pursuant to which Plaintiff has implemented a
comprehensive set of measures to address national security concerns. The TikTok
Ban, by contrast, is not based on any particularized assessment of Plaintiff’s actual
practices, nor is it reasonably calibrated to address the specific issues raised in the
legislation, i.e., alleged Chinese government access to U.S. user data and TikTok’s
33
content moderation practices. Instead, the TikTok Ban effects a wholesale ban on
TikTok in the State, notwithstanding the many ways in which Plaintiff can—and
does—protect U.S. user data and attempts to shield users from harmful content.
F. Enforcement of the TikTok Ban Would Cause Plaintiff

Irreparable Harm.
78. Enforcement of the TikTok Ban would result in myriad harms to
Plaintiff, both inside and outside of Montana, including but not limited to the
following:
79. First, enforcement of the Ban would infringe upon Plaintiff’s First
Amendment rights, as well as those of its users. As Attorney General Knudsen
acknowledged, the State is “under no illusions that this is not going to get
challenged” on First Amendment grounds.34 While Attorney General Knudsen
went on to characterize the TikTok Ban as being at “the next frontier in First
Amendment jurisprudence that’s probably going to have to come from the U.S.
Supreme Court,” it does not take further guidance from the Supreme Court to
recognize that the TikTok Ban’s blanket prohibition on a popular communications
platform runs afoul of the First Amendment. As one Montana TikTok creator put
34
David McCabe, A Plan to Ban TikTok in Montana Is a Preview for the Rest of
the Country, N.Y. TIMES (Apr. 12, 2023),
https://www.nytimes.com/2023/04/12/technology/tiktok-ban-montana.html.
34
it, the TikTok Ban is “censorship at its finest form.”35 The Ban would bar Plaintiff
from making editorial decisions on whether, and how, to publish and disseminate
speech created by Montanans to others and vice versa. It would also prevent
Plaintiff from creating and sharing its own content about a variety of issues and
current events with Montanans. The harm from abridgment of such First
Amendment freedoms is inherently irreparable.
80. Second, enforcement of the Ban would destroy Plaintiff’s business in
Montana. The Ban will mean that TikTok will no longer be available in Montana,
resulting in the loss of many thousands of current and future users. Competitors
will undoubtedly benefit as TikTok creators and users in Montana switch
platforms. And even if the Ban were lifted after a period of weeks or months, the
harm to TikTok’s user base and Plaintiff’s competitive position in Montana would
be permanent.
81. Third, the TikTok Ban will destroy the goodwill that Plaintiff needs to
partner with other businesses and advertisers that are either based in Montana or
wish to advertise to Montana consumers. Commercial partners seeking to sell their
products in Montana or otherwise reach Montana audiences will move away from
35
Dominic Vitiello, Some Local Businesses Disheartened by Potential Statewide
TikTok Ban, NBC MONTANA (Apr. 11, 2023),
https://nbcmontana.com/news/local/some-local-businesses-disheartened-by-
potential-statewide-tiktok-ban#.
35
TikTok, leading not just to a loss of revenue but extraordinary harm to Plaintiff’s
reputation and goodwill, making it unlikely that these relationships could be
salvaged if the Ban were to be lifted. These reputational harms will not be limited
to TikTok’s business operations in Montana; advertisers and other business
partners outside of Montana will also be less likely to partner with TikTok because
it is banned in Montana.
82. Fourth, because the TikTok Ban imposes liability not just on Plaintiff,
but also on “mobile application store[s]” that make TikTok available to download
in Montana (even if individuals in Montana do not actually download, activate, or
otherwise access the app while in the State), the TikTok Ban may lead one or more
app stores to remove TikTok from their store. Depending on the technical
difficulties faced by the app stores in ensuring that users are not able to access
TikTok within Montana’s state borders, one or more of these app stores may
decide not to offer TikTok at all, rather than risk the legislation’s draconian
penalties. Were the app stores to remove the TikTok app altogether, that would
prevent everyone in the United States from downloading TikTok, causing further
irreparable harm to Plaintiff.
83. Furthermore, even though the TikTok Ban is not scheduled to take
effect until January 1, 2024, its planned prohibition on TikTok in the State is
already having a negative business impact on Plaintiff, as well as a chilling effect
36
on the speech of Plaintiff and other TikTok users in Montana. Like any business,
Plaintiff must plan for the future, and the prospect that TikTok could become
entirely unavailable in Montana negatively affects Plaintiff’s ability to operate in
Montana and elsewhere.
84. If not for the TikTok Ban, Plaintiff would continue to operate TikTok
in Montana. Attorney General Knudsen has warned, however, that he “absolutely”
will “go after the company itself” and “anybody that allows it to be downloaded”
with a “$10,000 per day civil penalty.”36 Plaintiff brings this suit to enjoin
Defendant Knudsen from carrying out this express intention to use the legislation’s
penalties to shut down TikTok, and thus suppress free speech, across the State of
Montana.
CLAIMS FOR RELIEF
Count 1: The TikTok Ban Violates the First Amendment.
85. Plaintiff realleges and incorporates by reference all prior paragraphs
of this Complaint and the paragraphs in the counts below as though fully set forth
in this count.
36
Fran Beyer, Mont. AG Knudsen to Newsmax: State TikTok Ban First of Its Kind,
NEWSMAX (Apr. 17, 2023), https://www.newsmax.com/newsmax-tv/tiktok-
montana-ban/2023/04/17/id/1116448.
37
86. The First Amendment to the U.S. Constitution, as incorporated by the
Fourteenth Amendment, prohibits state laws that “abridg[e] the freedom of
speech.” U.S. Const., amend. I.
87. By banning TikTok—a forum that Plaintiff and hundreds of thousands
of individuals in Montana use to engage in constitutionally protected speech—the
TikTok Ban unlawfully abridges one of the core freedoms guaranteed by the First
Amendment. See U.S. WeChat Users All. v. Trump, 488 F. Supp. 3d 912, 926
(N.D. Cal. 2020) (preliminarily enjoining the federal government’s ban of the
Chinese-owned WeChat app because plaintiffs had “shown serious questions going
to the merits of their First Amendment claim that” the Ban “effectively
eliminate[d] the plaintiffs’ key platform for communication, slow[ed] or
eliminate[d] discourse, and was the equivalent of censorship of speech or a prior
restraint on it”).
88. Plaintiff is among the speakers whose expression the TikTok Ban
prohibits. As a U.S. corporation, Plaintiff TikTok Inc. is entitled to First
Amendment protections. See Citizens United v. Fed. Election Comm’n, 558 U.S.
310, 342 (2010) (“The Court has recognized that First Amendment protection
extends to corporations.”).
89. The TikTok Ban prevents Plaintiff from exercising editorial discretion
over the third-party speech published on the app. Plaintiff “is more than a passive
38
receptacle or conduit for news, comment, and advertising” of others; its “choice of
material” to recommend or forbid “constitute[s] the exercise of editorial control
and judgment” that is independently protected by the First Amendment. Miami
Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974). For example, Plaintiff
encourages users to create and share education and environment-focused content
on the app, such as through the “EduTok” campaign, which results in the
promotion of certain public interest content on the app. Moreover, Plaintiff, like
operators of other online platforms, engages in content moderation and
enforcement of its Community Guidelines, which includes “decisions about what
content to include, exclude, moderate, filter, label, restrict, or promote.”
O’Handley v. Padilla, 579 F. Supp. 3d 1163, 1186–87 (N.D. Cal. 2022).
90. This editorial discretion is constitutionally protected speech. See, e.g.,
NetChoice, LLC v. Att’y General, Florida, 34 F.4th 1196, 1210 (11th Cir. 2022)
(“[W]hen a platform removes or deprioritizes a user or post, it makes a judgment
about whether and to what extent it will publish information to its users—a
judgment rooted in the platform’s own views about the sorts of content and
viewpoints that are valuable and appropriate for dissemination on its site,” and
“thereby engages in ‘speech’ within the meaning of the First Amendment.”);
O’Handley, 579 F. Supp. 3d at 1188 (“Twitter has important First Amendment
39
rights that would be jeopardized by a Court order telling Twitter what content-
moderation policies to adopt and how to enforce those policies.”).
91. Plaintiff also uses TikTok to create and share its own content about a
variety of issues and current events, including, for example, its support for small
businesses, Earth Day, and literacy and education.37 When Plaintiff publishes its
own posts and other information, it is engaging in core speech protected by the
First Amendment. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011)
(“[T]he creation and dissemination of information are speech within the meaning
of the First Amendment.”); NetChoice, 34 F.4th at 1210 (“Social-media platforms
like . . . TikTok are private companies with First Amendment rights, and when
they (like other entities) disclose, publish, or disseminate information, they engage
in ‘speech within the meaning of the First Amendment.’” (internal quotation
marks, alterations, and citations omitted)).
92. The restrictions that the TikTok Ban imposes on Plaintiff’s speech and
that of TikTok users violate the First Amendment. The TikTok Ban is subject to
strict scrutiny because it constitutes government action that singles out TikTok and
37
TikTok (@tiktok), TIKTOK, https://www.tiktok.com/t/ZTRELfewn (last visited
May 22, 2023); TikTok (@tiktok), TIKTOK,
https://www.tiktok.com/t/ZTRELWoCN (last visited May 22, 2023); TikTok
(@tiktok), TIKTOK, https://www.tiktok.com/t/ZTRTqtL7D (last visited May 22,
2023); TikTok (@tiktok), TIKTOK, https://www.tiktok.com/t/ZTRTqnrSJ (last
40
its users for disfavored treatment with the content-based rationale that videos on
TikTok are harmful to minors. As a content-based restriction on speech, the
TikTok Ban is “presumptively invalid,” R.A.V. v. City of St. Paul, 505 U.S. 377,
382 (1992), and must be struck down unless Defendant can satisfy his burden of
meeting the stringent requirements of strict scrutiny, meaning that the relevant
restrictions must be the least-restrictive means of promoting a compelling
government interest, see United States v. Playboy Ent. Grp., 529 U.S. 803, 813
(2000). “It is rare that a regulation restricting speech because of its content will
ever be permissible.” Id. at 818. The TikTok Ban is also subject to strict scrutiny
to the extent the State seeks to justify the Ban based on purported concerns that
Plaintiff will use TikTok to promote certain viewpoints on the platform over
others. See, e.g., Waln v. Dysart Sch. Dist., 54 F.4th 1152, 1163 (9th Cir. 2022).
93. When the Act was first introduced in the Montana Senate, a legal
memorandum written by a staff attorney for the Montana Legislature read at a
Senate hearing agreed that “a court would likely apply a strict scrutiny approach in
construing the provisions of the draft.”38 Governor Gianforte subsequently
suggested amendments to the bill that would have applied its prohibitions to a
38
Hearing, Montana Senate Business, Labor, and Economic Affairs (Feb. 27,
2023), http://sg001-
harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBrowserV2/20170221/-
1/48139.
41
broad range of social media applications, not just TikTok, and would have
removed the legislation’s purported content-based concerns about the material
available on TikTok.39 Setting aside whether those changes would have been
sufficient to subject the Ban to a lower tier of scrutiny (they would not), the
Montana Legislature did not consider Governor Gianforte’s suggested
amendments.
94. Strict scrutiny applies also because the TikTok Ban constitutes a prior
restraint on Plaintiff’s and its users’ speech—“the most serious and the least
tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart,
427 U.S. 539, 559 (1976). The TikTok Ban entirely prohibits the use of TikTok in
Montana, barring Plaintiff and the many thousands of Montanans who use the app
from engaging in protected speech. See U.S. WeChat Users All., 488 F. Supp. 3d
at 926 (holding it was a “serious question[]” whether the government’s ban on
WeChat was a prior restraint). Such prior restraints are reviewed for strict
scrutiny, In re Dan Farr Prods., 874 F.3d 590, 593 n.2 (9th Cir. 2017), and “bear a
heavy presumption against [their] constitutional validity,” Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 70 (1963).
39
See Eric Dietrich, Gianforte Signals He’ll Sign TikTok Ban—But He Prefers
Changes First, MONTANA FREE PRESS (Apr. 27, 2023),
https://montanafreepress.org/2023/04/27/montana-governor-gianforte-pushes-
back-on-tiktok-ban-bill/.
42
95. The State cannot meet its demanding burden to show that the TikTok
Ban satisfies strict scrutiny. Even if the State could articulate a general interest in
securing its residents’ data or protecting minors from harmful content, the State has
failed to point to anything beyond speculation to suggest that banning TikTok
would advance either interest. The purported national security concerns animating
the TikTok Ban are outside the State’s realm of expertise and constitutional
authority. And the State has failed entirely to substantiate the assertion that
TikTok is harmful to minors, or that TikTok is more dangerous than the many
other online entertainment, communications, and social-media services that the
TikTok Ban does not touch. The State’s “justification for” the TikTok Ban’s
“novel burden on expression must be ‘far stronger than mere speculation about
serious harms.’” Bartnicki v. Vopper, 532 U.S. 514, 532 (2001) (quoting United
States v. Treasury Empls., 513 U.S. 454, 475 (1995)); see also Washington Post v.
McManus, 944 F.3d 506, 522 (4th Cir. 2019) (“Without direct evidence (or
anything close to it) of [foreign] meddling,” the State “has failed to show that this
purported threat is likely or imminent enough to justify the Act’s intrusive
preventative measures.”).
96. Even if the State could show that the TikTok Ban served a compelling
government interest, the legislation’s total ban on TikTok is far from the least-
restrictive means of promoting that interest. Numerous less-restrictive alternatives
43
exist that could address the State’s perceived concerns. The State could, for
example, enact an appropriately tailored data privacy law of general application, or
mandate additional protections designed to protect the safety of minors on the
internet. By disregarding these alternatives, the TikTok Ban burdens far more
speech than necessary by completely extinguishing a forum used by Plaintiff and
hundreds of thousands of users in Montana for constitutionally protected speech.
See, e.g., U.S. WeChat Users All., 488 F. Supp. 3d at 927 (holding that, “while the
government has established that China’s activities raise significant national-
security concerns[,] it has put in scant little evidence that its effective ban of
WeChat for all U.S. users addresses those concerns. And, as the plaintiffs point
out, there are obvious alternatives to a complete ban.”).
97. Even if strict scrutiny did not apply, at a minimum, the TikTok Ban is
subject to intermediate scrutiny as a government regulation of the time, place, or
manner of protected speech, because the TikTok Ban prohibits the manner in
which Plaintiff and its users may communicate with one another (i.e., through the
TikTok app). See Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).
Intermediate scrutiny requires that a government speech restriction must be
“narrowly tailored to serve a significant government interest,” may not “burden
substantially more speech than is necessary to further the government’s legitimate
interests,” and must “leave open ample alternative channels for communication of
44
the information.” McCullen v. Coakley, 573 U.S. 464, 477, 486 (2014) (internal
quotation marks omitted).
98. For many of the same reasons the TikTok Ban cannot survive strict
scrutiny, it cannot survive intermediate scrutiny. The State cannot show that the
TikTok ban serves a significant government interest, because the connection
between the legislation and the issues it purports to address are purely speculative,
see supra ¶ 95. Nor can the State show that the TikTok Ban is narrowly tailored to
serve any such interest, given the sweeping breadth of the legislation and the
existence of numerous, substantially less-restrictive alternatives that the State
could enact instead, see supra ¶ 96.
99. Furthermore, because the TikTok Ban “effectively prevents” Plaintiff
“from reaching [its] intended audience, it fails to leave open ample alternative
means of communication,” and thus fails intermediate scrutiny for this independent
reason. Edwards v. City of Coeur d’Alene, 262 F.3d 856, 866 (9th Cir. 2001). The
First Amendment protects a speaker’s interest in reaching an audience of its
choosing in a manner of its choosing. See, e.g., Galvin v. Hay, 374 F.3d 739, 752
(9th Cir. 2004) (“[T]here is a strong First Amendment interest in . . . protecting
speakers seeking to reach a particular audience.”). While Plaintiff might be able to
communicate with individuals other than Montana TikTok users, and through
means other than the TikTok app, it has no meaningful alternative means to
45
communicate with Montana TikTok users. Weinberg v. City of Chicago, 310 F.3d
1029, 1041 (7th Cir. 2002) (“[A]n alternative is not adequate if it foreclose[s] a
speaker’s ability to reach one audience even if it allows the speaker to reach other
groups.” (internal quotation marks omitted)).
100. Indeed, laws like the TikTok Ban that impose a total prohibition on a
medium of expression are particularly disfavored, because they often suppress
more speech than necessary. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 55
(1994) (“Our prior decisions have voiced particular concern with laws that
foreclose an entire medium of expression. . . . Although prohibitions foreclosing
entire media may be completely free of content or viewpoint discrimination, the
danger they pose to the freedom of speech is readily apparent—by eliminating a
common means of speaking, such measures can suppress too much speech.”).
101. For many of these same reasons, the TikTok Ban is unconstitutionally
“overbroad” on its face due to its burdens on the speech of the many thousands of
people in Montana who currently use TikTok or might wish to do so in the future.
A statute is constitutionally overbroad if a “substantial number” of its “applications
are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). Here, because the
TikTok Ban would completely destroy an important medium of communication
46
throughout the State, based on speculative and unfounded concerns about national
security and minor safety, all of its applications are unconstitutional, not just a
substantial number.
102. At a minimum, the TikTok Ban suffers from unconstitutional
overbreadth as a result of its ban on TikTok use by adults. While the Ban purports
to express concern about “minors’” access to “dangerous content,” there is no
similar concern expressed about adults’ ability to access content on the app. The
TikTok Ban, however, applies to all users in Montana, not just users under the age
of 18. Thus, even if the TikTok Ban could survive constitutional scrutiny with
respect to minors (it cannot), there is no equivalent justification for the Ban with
respect to adults.
103. The TikTok Ban’s violation of Plaintiff’s First Amendment rights is
causing and will continue to cause ongoing and irreparable harm to Plaintiff.
Count 2: The TikTok Ban Is Preempted by Federal Law.
in this count.
105. As explained above, the TikTok Ban purports to ban TikTok based on
perceived national security concerns as well as unsubstantiated fears that Plaintiff
may share Montanans’ user data with Chinese authorities. But in attempting to ban
47
Plaintiff from operating in the State, the TikTok Ban runs afoul of basic tenets of
federal preemption.
106. The Supremacy Clause of the U.S. Constitution prohibits States from
regulating conduct “in a field that Congress, acting within its proper authority, has
determined must be regulated by its exclusive governance.” Arizona v. United
States, 567 U.S. 387, 399 (2012). State laws are also preempted when they conflict
with federal law, including when they stand “as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.” Id. (quoting Hines
v. Davidowitz, 312 U.S. 52, 67 (1941)).
107. Here, the TikTok Ban is preempted by federal law because it regulates
conduct in the field of national security and foreign affairs, purporting to remedy
concerns posed by foreign involvement in domestic businesses—an area that the
Constitution has assigned to the federal government and that Congress has
occupied by enacting an extensive regulatory framework. The TikTok Ban also
conflicts with this federal regulatory framework, including by interfering with the
accomplishment of the full objectives of Congress in Section 721, IEEPA, and
related regulations. See Zschernig v. Miller, 389 U.S. 429, 432 (1968) (States may
not trespass into the realm of “foreign affairs which the Constitution entrusts to the
President and the Congress.”); Movsesian, 670 F.3d at 1071 (“Under the foreign
48
affairs doctrine, state laws that intrude on this exclusively federal power are
preempted.”).
108. “The Supreme Court has long recognized that foreign relations and
national security are preeminently federal concerns that are exclusive of state
regulation.” NLMK Pa., LLC v. U.S. Steel Corp., 592 F. Supp. 3d 432, 452 (W.D.
Pa. 2022); see also, e.g., Zschernig, 389 U.S. at 432 (invalidating an Oregon statute
that represented “an intrusion by the State into the field of foreign affairs”). This is
especially true with respect to the regulation of national security risks posed by the
foreign involvement in domestic businesses. In this area, Congress has legislated
so pervasively—including by enacting Section 721 and IEEPA—that it is clear
Congress intended to leave no room for States to make separate determinations that
would create a patchwork of different laws affecting national security and foreign
affairs. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
Furthermore, “even in the absence of any express federal policy, a state law still
may be preempted under the foreign affairs doctrine if it intrudes on the field of
foreign affairs without addressing a traditional state responsibility.” Movsesian,
670 F.3d at 1072.
109. The TikTok Ban purports to justify prohibiting TikTok by asserting,
inter alia, that China is an “adversary of the United States,” that China uses
TikTok as a tool to conduct “international espionage,” and that TikTok allows
49
China “to track the real-time locations of public officials, journalists, and other
individuals adverse to the Chinese Communist Party’s interests.” These concerns
are unfounded, but even setting that aside, the TikTok Ban’s purported
justifications regarding national security and foreign relations are not grounded in
an area of traditional state responsibility, but are instead, as noted, supra ¶¶ 107-
108, distinctly federal interests that are addressed through nationwide law and
policy. See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954,
964 (9th Cir. 2010) (“Courts have consistently struck down state laws which
purport to regulate an area of traditional state competence, but in fact, affect
foreign affairs.”).
110. The TikTok Ban thus contravenes Congress’s manifest intent to deal
with national security threats posed by foreign economic activity and involvement
in U.S. business through Section 721 and IEEPA on a nationwide basis.
111. The TikTok Ban not only intrudes upon the federal government’s field
of exclusive regulation over matters of national security and foreign affairs; it also
conflicts with congressional policy in that field.
112. For example, Congress gives CFIUS a broad range of tools short of an
outright prohibition to mitigate the national security risks the U.S. government
determines are posed by certain categories of transactions. See 50 U.S.C.
§ 4565(l)(3)(A)(i) (permitting CFIUS to “negotiate, enter into or impose, and
50
enforce any agreement or condition with any party to the covered transaction in
order to mitigate any risk to the national security of the United States that arises as
a result of the covered transaction”). Indeed, Plaintiff and CFIUS have been in
negotiations for nearly three years to identify mitigation measures that further
national security, short of a complete ban. The President also has the authority to
mandate divestiture under Section 721 in certain circumstances. See id. § 4565(d).
113. In passing the TikTok Ban, however, the Montana government has
substituted its own view of how best to address perceived national security threats
from China, requiring a total ban on TikTok regardless of CFIUS and the
President’s ultimate conclusions regarding this same matter. While the TikTok
Ban purports to address this issue by declaring that it is contingently void “if tiktok
is acquired by or sold to a company that is not designated as a foreign adversary”
under federal regulations, this provision merely reinforces the conflict between the
TikTok Ban and federal law. CFIUS expressly has authority to take actions short
of a divestiture, such as by entering into mitigation agreements, and the statute
makes clear that the President has discretion as to whether to take action pursuant
to the statute or not. Thus, the President’s and CFIUS’s authorities under Section
721 extend beyond the circumstances posited by the Ban’s contingent voidness
clause, and Montana’s efforts to short-circuit and constrain the ongoing CFIUS
review represent a clear obstacle to Congress’s objectives in enacting Section 721.
51
114. Furthermore, Congress gave the President specified authorities to
regulate foreign commerce upon declaring a national emergency under IEEPA.
See 50 U.S.C. § 1701(a). But Congress also made that authority subject to certain
express limitations, including that the President may not “regulate or prohibit,
directly or indirectly,” the importation or exportation of “information or
information materials,” or “personal communication[s], which do[] not involve a
transfer of anything of value.” Id. § 1702(b)(1), (3).
115. Montana’s TikTok Ban conflicts with Congress’s judgment as to the
proper limits of government authority over foreign economic activity because it
restricts the types of personal communications and informational materials
excluded from the scope of IEEPA—limits that were included to, among other
things, “prevent the statute from running afoul of the First Amendment.” Cernuda,
720 F. Supp. at 1553.
116. Accordingly, the TikTok Ban is preempted by federal law and stands
in violation of the Supremacy Clause of the U.S. Constitution.
117. The TikTok Ban’s violation of the Supremacy Clause is causing and
will continue to cause ongoing and irreparable harm to Plaintiff.
52
Count 3: The TikTok Ban Violates the Commerce Clause and Disrupts the
Constitution’s Structural Distribution of Authority Between Federal and
State Governments.
in this count.
119. The Commerce Clause of the U.S. Constitution grants Congress the
power to regulate commerce “with foreign Nations, and among the several States.”
U.S. Const. art. 1, § 8, cl. 3. While the Commerce Clause is framed “by its text
[as] an affirmative grant of power to Congress,” the so-called “Dormant”
component of the Clause “has long been recognized as a self-executing limitation
on the power of the States to enact laws imposing substantial burdens on
[interstate] commerce.” South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S.
82, 87 (1984).
120. The TikTok Ban imposes substantial burdens on interstate commerce
in violation of the Commerce Clause and other structural provisions of the
Constitution by prohibiting Plaintiff from operating TikTok in Montana and
penalizing Plaintiff any time a user in Montana accesses TikTok or is offered the
ability to access or download TikTok in the State. The TikTok Ban is not limited
to Montana residents; it applies to anyone in the State, including those visiting or
merely passing through for work.
53
121. Substantial burdens on interstate commerce “generally result from
inconsistent regulation of activities that are inherently national or require a uniform
system of regulation.” Bernstein v. Virgin Am., Inc., 3 F.4th 1127, 1135 (9th Cir.
2021) (quoting Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144,
1148 (9th Cir. 2012)).
122. Plaintiff’s operation of TikTok, an application used by over 150
million users in the United States, including in every State, is inherently national in
scope and requires a uniform system of regulation, not one subject to the policy
decisions of fifty separate States.
123. Implementing the TikTok Ban would cause inevitable disruption that
would impede the flow of interstate commerce and spill over into neighboring
States. This is especially true given that the TikTok Ban is not limited to Montana
residents; rather, the TikTok Ban prohibits the use of TikTok by anyone physically
present in the State, including visitors and others passing through, such as long-
haul truckers and railroad employees. Montana also hosts millions of tourists each
year. To comply with the Ban, Plaintiff would need to block any user from
accessing TikTok the moment they cross State lines, and for those users who want
to retain access to TikTok, they would be required to adjust their plans
accordingly.
54
124. Separately, because the TikTok Ban penalizes not only Plaintiff for
violations of the legislation but also “mobile application store[s]” merely for
making TikTok available to download (regardless of whether the app is actually
downloaded), the TikTok Ban may lead one or more app stores to elect not to offer
TikTok at all, rather than risk the significant penalties under the legislation. See
supra ¶ 82. If national app stores remove the app, TikTok would lose access to
new users across the entire United States based on the actions of the Montana
Government. Such a possibility is forbidden by the Commerce Clause and
structure of the Constitution.
125. These “burdens on interstate commerce” flowing from the TikTok
Ban are “excessive” in relation to the putative local benefits. Comptroller of the
Treasury of Md. v. Wynne, 575 U.S. 542, 549 (2015). Indeed, the resulting
“confusion and difficulty” of trying to comply with this “varied system of state
regulation” in an area where there is an inherent “need for uniformity” is exactly
the sort of burden on interstate commerce the Commerce Clause prohibits. S. Pac.
Co. v. Arizona, 325 U.S. 761, 774 (1945).
126. The Ban also facially discriminates against foreign commerce by
prohibiting TikTok in the State due to Plaintiff’s asserted economic relationship
with a foreign-owned entity. By imposing the Ban as long as Plaintiff purportedly
remains a subsidiary of a company “incorporated in” China or “any country
55
designated as a foreign adversary” of the United States, the Ban aims to “affect
business decisions pertaining to a foreign nation.” Nat’l Fed’n Trade Council v.
Natsios, 181 F.3d 38, 46–47 (1st Cir. 1999). The Ban is thus a “direct attempt
regulate the flow of foreign commerce.” Id. State laws like the Ban that facially
discriminate against foreign commerce are subject to the “strictest scrutiny.”
Hughes v. Oklahoma, 441 U.S. 322, 337 (1979). The fact that Plaintiff “could
avoid that discrimination by changing the domicile” of its parent company under
the Ban’s contingent voidness provision confirms that the Ban violates the
Commerce Clause. Kraft Gen. Foods, Inc. v. Iowa Dep’t of Revenue & Fin., 505
U.S. 71, 76 (1992). And the State cannot carry its heavy burden of showing that
the Ban’s discrimination serves a legitimate local purpose or that there is an
absence of nondiscriminatory alternatives.
127. The TikTok Ban’s substantial burden on interstate commerce and
facial discrimination against foreign commerce therefore violates the Commerce
Clause and constitutional structure.
128. The TikTok Ban’s violation of the Commerce Clause and
constitutional structure is causing and will continue to cause ongoing and
irreparable harm to Plaintiff.
56
Count 4: The TikTok Ban Is an Unconstitutional Bill of Attainder.
of this Complaint as though fully set forth in this count.
130. Article I of the U.S. Constitution provides that “[n]o State shall . . .
pass any Bill of Attainder.” U.S. Const. art. I, § 10, cl. 1. A bill of attainder is
“legislative punishment, of any form or severity, of specifically designated persons
or groups.” United States v. Brown, 381 U.S. 437, 447 (1965).40
131. By singling out TikTok for legislative punishment applicable to no
other social media or entertainment platform, the TikTok Ban is an
unconstitutional bill of attainder. Although numerous companies, both foreign and
domestic, operate social media platforms, communications services, and online
entertainment platforms in Montana, the TikTok Ban prohibits TikTok—and only
TikTok—based on purported concerns about its data security practices. The
TikTok Ban singles out the TikTok application for this punishment,
notwithstanding that the data allegedly collected by the app is no different in kind
than data collected from any number of other sources and that is widely available
in the data broker market. See supra ¶ 59.
40
Courts in the Ninth Circuit “do not distinguish in [their] analysis between the
Bill of Attainder Clauses in section 10, which applies to the states, and in section 9,
which applies to Congress.” SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309
F.3d 662, 672 n.6 (9th Cir. 2002); see also Fowler Packing Co. v. Lanier, 844 F.3d
809, 817 n.5 (9th Cir. 2016) (similar).
57
132. The TikTok Ban’s creation of liability each time a user in Montana
accesses TikTok, is offered the ability to access TikTok, or is offered the ability to
download TikTok constitutes unconstitutional legislative punishment.
133. First, the TikTok Ban inflicts “pains and penalties” that historically
have been associated with bills of attainder. Among other things, the legislation
banishes Plaintiff from Montana and punitively confiscates Plaintiff’s business
expectancy relating to the ongoing operation of TikTok in the State. See Nixon v.
Adm’r of Gen. Servs., 433 U.S. 425, 474 (1977) (“‘[P]ains and penalties’
historically consisted of a wide array of punishments: commonly included were
imprisonment, banishment, and the punitive confiscation of property by the
sovereign.”). Furthermore, the TikTok Ban imposes those pains and penalties on
Plaintiff as a result of its perceived disloyalty to the United States—i.e., based on
unfounded allegations that Plaintiff might misappropriate U.S. user data to share
with the Chinese government. See id. (explaining that pains and penalties were
“[g]enerally addressed to persons considered disloyal to the Crown or State”).
134. Second, “viewed in terms of the type and severity of burdens
imposed” on Plaintiff, the TikTok Ban’s treatment of Plaintiff cannot “reasonably
. . . be said to further nonpunitive legislative purposes.” Id. at 475–76. A $10,000
penalty imposed each time a user in Montana accesses TikTok (or is even offered
the opportunity to download the app) is too severe a penalty not to be punitive.
58
Furthermore, the fact that the TikTok Ban targets TikTok exclusively—and no
other application with foreign ownership—confirms that the State lacks a
legitimate interest in enacting the TikTok Ban apart from inflicting legislative
punishment.
135. Third, and finally, the legislative record evinces an intent to punish
Plaintiff. Prior to the TikTok Ban’s passage, members of the Montana Legislature
expressed their support for the legislation in terms of the opportunity it presented
to punish Plaintiff, often for perceived wrongdoing by China. For example,
Attorney General Knudsen, whose office reportedly drafted the TikTok Ban,
explicitly tied support of the legislation to a broader effort to exact payback on
China, stating that, “[f]rankly, the Chinese did us a favor by floating that spy
balloon over Montana when they did.”41 Similarly, in a House debate on April 13,
2023, Representative Edward Butcher referred to Plaintiff—a private U.S.
company—as both an “economic adversary” and a “political adversary,” and urged
his colleagues not to “bury our head in the sand and say ‘oh gee, well, we don’t
41
David McCabe, A Plan to Ban TikTok in Montana Is a Preview for the Rest of
the Country, N.Y. TIMES (Apr. 12, 2023),
59
want to pick on one company,’” because “[t]hey’re the ones that started this
thing.”42
136. As another example, during a House Judiciary Committee Hearing on
March 28, 2023, Representative Neil Duram referred to TikTok as “the music
played by the Pied Piper to steal this generation’s heart and mind.”43 Other
legislators remarked on the punitive nature of the TikTok Ban, including
Representative Zooey Zephyr, who in opposition to the bill at a House floor
session on April 13, 2023, said that while “[d]ata privacy is a really serious
concern, . . . that’s not really being addressed in this Bill.” Instead, Representative
Zephyr noted, “[w]hat we heard in Committee, what we heard from proponents of
this Bill, was a lot of conversation around China, around communists, around red
scare stuff.”44 These and other comments from legislators during deliberation of
the TikTok Ban confirm that the legislation was not an effort to regulate in an area
42
Floor Session, Montana House (Apr. 13, 2023), http://sg001-
harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBrowserV2/20230416/
21/46167.
43
Hearing, Montana House Judiciary (Mar. 28, 2023), http://sg001-
30/47792; see also David McCabe, A Plan to Ban TikTok in Montana Is a Preview
for the Rest of the Country, N.Y. TIMES (Apr. 12, 2023),
44
Floor Session, Montana House (Apr. 13, 2023), http://sg001-
21/46167.
60
of legitimate state concern, but instead a political act of retribution aimed at
punishing Plaintiff erroneously as a perceived proxy for the Chinese government.
137. Accordingly, the TikTok Ban constitutes an unconstitutional bill of
attainder.
138. The TikTok Ban’s imposition of an unconstitutional bill of attainder is
causing and will continue to cause ongoing and irreparable harm to Plaintiff.
REQUESTED RELIEF
WHEREFORE, Plaintiff prays that this Court grant the following relief:
(1) Issue a declaratory judgment pursuant to 28 U.S.C. § 2201(a) that the
TikTok Ban is unconstitutional and preempted by federal law;
(2) Issue an order invalidating the TikTok Ban and preliminarily and
permanently enjoining Defendant from implementing or enforcing the
TikTok Ban, and preserving the status quo; and
(3) Grant any other and further relief that this Court may deem just,
equitable, and proper.
61

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What is the TikTok Ban and what penalties does it impose?

What is the TikTok Ban and what penalties does it impose?

What arguments does TikTok make against the TikTok Ban?

What arguments does TikTok make against the TikTok Ban?

Case 9:23-cv-00061-DLC Document 1 Filed 05/22/23 Page 1 of 62

in his official capacity as Attorney General of the State of Montana, alleges as

1. This action seeks to prevent the State of Montana from unlawfully

banning TikTok, a short-form video sharing platform that empowers hundreds of

thousands of users in Montana to communicate and express themselves, primarily

U.S. Constitution in multiple other respects, and is preempted by federal law.

2. Every month, more than 150 million Americans use TikTok to

express themselves and connect with others. Montanans use TikTok to

connections among individuals, TikTok has become home to thousands of different

to communicate about their products and services.

3. On May 17, 2023, the Governor of Montana signed An Act Banning

ability to download TikTok. The TikTok Ban—including its substantial

penalties—is set to take effect January 1, 2024.

4. The State has enacted these extraordinary and unprecedented

measures based on nothing more than unfounded speculation. Specifically, the

environment for all users, including teens.

5. Ignoring these facts and the federal statutory framework already in

place to address any purported concerns about foreign government access to

Montana. It has done so despite the availability of more targeted measures to

content on the platform.

6. Acknowledging “legal concerns” about the TikTok Ban, the Montana

not consider the Governor’s suggested changes—which were legally problematic

Amendment speech, based on unfounded speculation about potential foreign

with the Constitution.

7. The TikTok Ban is unlawful and should be enjoined for multiple,

independent reasons. Specifically:

a. First Amendment. The TikTok Ban violates Plaintiff’s First

b. Federal Preemption. The TikTok Ban is preempted by federal

c. Commerce Clause. The TikTok Ban violates the Commerce

d. Bill of Attainder. The TikTok Ban is an unconstitutional bill of

8. To halt this unlawful conduct, Plaintiff seeks a declaratory judgment

and order invalidating and preliminarily and permanently enjoining Defendant

from enforcing the TikTok Ban.

JURISDICTION AND VENUE

9. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331

also has jurisdiction under 28 U.S.C. § 1343(a)(3) to redress deprivations “under

privilege or immunity secured by the Constitution of the United States.”

pursuant to 42 U.S.C. § 1983; the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et

11. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1)

Mont. Code § 25-2-125. Based on IP address information for March 2023,

Plaintiff estimates that approximately 110,000 monthly active users accessed

concentration of TikTok users for any division of the District of Montana.

14. Plaintiff TikTok Inc. is a company incorporated in California, with its

principal address in Culver City, California. The TikTok platform is provided in

the United States by TikTok Inc.

15. Defendant Austin Knudsen is the Attorney General of Montana and is

A. TikTok is a Popular and Important Platform for Users to

16. TikTok is a short-form video sharing platform that enables users to

“to inspire creativity and bring joy.”2

a stream of videos that is curated by TikTok’s recommendation system. TikTok

a dedicated space to explore video content related to science, technology,

engineering, and math.

18. In addition to sharing and commenting on videos, TikTok users can

direct messages to one another.3