TikTok claims Montana ban violates First Amendment, encourages users to 'continue using' app despite ban

TikTok encourages Montana users to continue using app despite Republican Gov. Greg Gianforte's ban

TikTok torched Montana's move to ban the social media platform, arguing that doing so would infringe upon the First Amendment rights of users in the state. 

Montana Gov. Greg Gianforte "has signed a bill that infringes on the First Amendment rights of the people of Montana by unlawfully banning TikTok, a platform that empowers hundreds of thousands of people across the state," TikTok spokesperson Brooke Oberwetter said in a statement obtained by outlets, including The Associated Press. "We want to reassure Montanans that they can continue using TikTok to express themselves, earn a living, and find community as we continue working to defend the rights of our users inside and outside Montana." 

Fox News Digital reached out to TikTok Thursday asking the platform about any possible litigation it would be pursuing in response to the ban but did not immediately hear back. 


Montana governor signs TikTok ban

Gov. Greg Gianforte signs a law banning TikTok in the state, Wednesday, May 17, 2023, in Helena. That law made Montana the first state in the U.S. to ban TikTok. (Garrett Turner/Montana Governor's Office via AP / AP Newsroom)

Gianforte, a Republican, on Wednesday banned TikTok from operating in Montana – a move his office said aims to "protect Montanans’ personal, private, and sensitive data and information from intelligence gathering by the Chinese Communist Party." In signing Senate Bill 419, the governor made Montana the first state in the nation to ban TikTok and prohibit mobile application stores from offering TikTok within the state. 

Penalties will be enforced by the Montana Department of Justice, the governor's office said. 

In a statement, Gianforte accused the Chinese Communist Party of using the app "to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information," and said the new order is "the most decisive action of any state to protect Montanans’ private data and sensitive personal information from being harvested[.]"

Logo for TikTok app

TikTok claims banning the app in Montana violates First Amendment rights. (AP Photo/Matt Slocum, File / AP Newsroom)

The American Civil Liberties Union of Montana and NetChoice, a trade group that counts Google and TikTok as its members, also called the law unconstitutional. Keegan Medrano, policy director for the ACLU of Montana, said the legislature "trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information and run their small business, in the name of anti-Chinese sentiment."


In March, FBI Director Chris Wray testified before the Senate Intelligence Committee "worldwide threats" hearing that TikTok wields the power to "drive narratives" and "divide Americans against each other." Wray explained that while TikTok is owned by ByteDance, an ostensibly private company, there is no distinction under Chinese Communist Party rule, as the government can still use the platform for data operations. 

Later that same month, TikTok CEO Shou Zi Chew, while testifying before the House Energy and Commerce Committee, repeatedly stated that the company is headquartered in Singapore and Los Angeles, vowing to migrate U.S. user data stored on servers in China to United States soil through an initiative named Project Texas. 

A former executive at ByteDance alleges the tech giant has served as a "propaganda tool" for the Chinese government, a claim ByteDance says is baseless.

When Montana banned the app on government-owned devices in late December, Gianforte said TikTok posed a "significant risk" to sensitive state data. More than half of U.S. states and the federal government have a similar ban.

TikTok CEO testifies before Congress

TikTok CEO Shou Zi Chew testifies before the House Energy and Commerce Committee hearing on Capitol Hill, March 23, 2023. (Olivier Douliery/AFP via Getty Images / Getty Images)

On Wednesday, Gianforte also announced he was prohibiting the use of all social media applications tied to foreign adversaries on state equipment and for state businesses in Montana effective on June 1. Among the apps he listed are WeChat, whose parent company is headquartered in China; and Telegram Messenger, which was founded in Russia.

Montana's new law prohibits downloads of TikTok in the state and would fine any "entity" – an app store or TikTok – $10,000 per day for each time someone "is offered the ability" to access the social media platform or download the app. The penalties would not apply to users.


Opponents say Montana residents could easily circumvent the ban by using a virtual private network, a service that shields internet users by encrypting their data traffic, preventing others from observing their web browsing. Montana state officials say geofencing technology is used with online sports gambling apps, which are deactivated in states where online gambling is illegal.

The Associated Press contributed to this report.