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Amicus Brief in Support of Plaintiffs-Appellees and Affirmance - Alario v. Knudsen

In May 2023, Montana passed S.B. 419 banning TikTok from operating within its borders and imposing liability on TikTok if anyone in the state uses it. Although S.B. 419 plainly states that it singles out TikTok because of its failure to remove certain protected speech from its platform, Montana sought to evade First Amendment scrutiny by arguing that the legislation is nothing more than a common consumer-protection measure addressing TikTok’s data practices. The U.S. District Court for the District of Montana roundly rejected this characterization and issued a preliminary injunction against enforcing S.B. 419, because the bill implicated TikTok’s and its users’ expressive rights and failed intermediate First Amendment scrutiny. Montana appealed to the Ninth Circuit.

FIRE filed an amicus brief highlighting the pretense of Montana’s attempt to skirt constitutional constraints by characterizing its TikTok ban as a regulation only of non-expressive conduct or “business practices.” Banning a channel of communications raises obvious First Amendment implications for both the providers of the online platform and its users.  TikTok is used by over 170 million Americans and approximately a third of Montana's population.

FIRE also urged the Ninth Circuit to affirm the preliminary injunction, but to go beyond the district court's holding and to find the law constitutes a prior restraint and is subject to strict scrutiny. While the district court properly enjoined S.B. 419’s operation, it applied too constrained a definition of prior restraint and overlooked S.B. 419’s expressly content-based legislative purpose. Instead of applying intermediate First Amendment scrutiny, the district court should have treated the TikTok ban as a prior restraint and as a content-based speech regulation subject to strict scrutiny. Even so, the district court correctly concluded that S.B. 419 cannot satisfy even intermediate scrutiny because Montana failed to demonstrate that the law is narrowly tailored to directly and materially address substantial problems.