Last month, TikTok sued Montana’s attorney general—alleging the state’s recent TikTok ban is unconstitutional and is preempted by federal law.

On May 17, Montana Governor Greg Gianforte signed a first-of-its-kind law banning TikTok from operating in the state, in order “[t]o protect Montanans’ personal, private, and sensitive data and information from intelligence gathering by the Chinese Communist Party.”

Montana’s ban blocks app store platforms from providing TikTok for download to state residents, and prohibits individual users from accessing the app. Once the legislation takes effect on January 1, 2024, TikTok and app platforms could face a $10,000 fine for each “discrete violation”—defined as “each time that a user accesses tiktok, is offered the ability to access tiktok, or is offered the ability to download tiktok”—and an additional $10,000 each day that the violation continues.  

TikTok alleges the ban is unlawful for a number of reasons, including:

  • First Amendment: The law violates TikTok’s First Amendment rights and is a prior restraint on the company and its users’ speech.
  • Federal Preemption: The law is preempted by federal law because it is “based on the State’s purported concern about the security of U.S. user data vis-à-vis the Chinese government,” but the federal government has exclusive authority over foreign affairs and national security.
  • Commerce Clause: Because the law imposes a ban on a platform that is both national and international, it “interferes with TikTok’s operation and availability to users in other States and it risks disrupting the flow of travel and commerce between States.”
  • Bill of Attainder: The law targets TikTok specifically and imposes harsh penalties, rather than regulating social media companies more generally.
Photo of Justin Cohen Justin Cohen

Justin Cohen is an associate in the Litigation Department. His practice focuses on complex civil and commercial litigation, including securities litigation and antitrust. He has represented clients in a variety of industries in both federal and state courts across the United States, and …

Justin Cohen is an associate in the Litigation Department. His practice focuses on complex civil and commercial litigation, including securities litigation and antitrust. He has represented clients in a variety of industries in both federal and state courts across the United States, and in investigations by the SEC and DOJ. Recently, Justin was part of the trial team that secured a full defense verdict for Sanderson Farms and defeated $7 billion in damages claims, following a six-week federal jury trial in one of the largest-ever agriculture industry antitrust trials.

Justin earned his J.D. from Columbia Law School, where he was an Articles Editor for the Columbia Science and Technology Law Review. While at Columbia, he worked at the U.S. Attorney’s Office for the Eastern District of New York.

Prior to joining Proskauer, Justin practiced at Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York. Before law school, he worked as an analyst for the U.S. Department of Defense.