ACLU-EFF Amicus Brief: Mont. TikTok Ban Constitutes ‘Prior Restraint’

Montana’s TikTok ban, SB-419, is “both unprecedented and unconstitutional” and “a direct restriction on protected expression and association,” said an ACLU and Electronic Freedom Foundation amicus brief Friday (docket 9:23-cv-00061) in support of the plaintiffs' motions for a preliminary injunction to block Montana Attorney General Austin Knudsen (R) from enforcing the statute when it takes effect Jan. 1 (see 2307070002).

SB-419 “deliberately singles out a communications platform,” imposing a “blanket prohibition” that will make it impossible for users to speak, access information, and associate through TikTok,” said the brief, filed in U.S. District Court for Montana in Missoula. “As a result, the statute triggers an especially exacting form of First Amendment scrutiny,” it said.

The statute constitutes a “prior restraint” on TikTok and its users, “an especially disfavored means of restricting First Amendment rights,” said the brief. That’s because SB-419 “will shut down the app,” blocking hundreds of thousands of users in Montana, plus TikTok itself, from engaging in protected expression in advance of the time that their communications are to occur, it said. The court must respond by applying an “extraordinarily exacting” form of strict scrutiny, it said.

Even if SB-419 didn’t constitute a prior restraint, “it would still have to satisfy a strict narrow-tailoring requirement because it is a total ban on a unique and important means of communication,” and thus forecloses an entire medium of expression, said the brief. In those circumstances, courts apply an exacting standard, because a total ban fails unless it curtails no more speech than is necessary to accomplish its purpose, it said.

The degree of judicial scrutiny that applies to SB-419 isn’t diminished by Montana’s “national security and foreign espionage claims,” said the brief. As both the U.S. Supreme Court and the 9th Circuit have made clear, “the government’s burden to justify an infringement on First Amendment rights is the same in the national security context as in any other,” it said. “In fact, the judiciary has an especially critical role to play in ensuring that the government meets its burden when national security is invoked,” it said.

The ACLU and EFF urge the court to see SB-419 “for what it is,” said their brief. It’s “a sweeping ban on free expression that triggers the most exacting scrutiny under the First Amendment,” it said. Because SB-419 fails this test, the court should grant the motions for a preliminary injunction, it said.

By banning TikTok’s operation in Montana, SB-419 “shutters the wide range of expression that takes place on the platform,” said the brief. The ban will be “cutting off hundreds of thousands of Montanans who use the app and depriving users around the world of their unique content,”it said. The ban also implicates TikTok’s own First Amendment-protected activities on the platform, “including the content it posts itself and its editorial decision-making about what user content to carry and amplify,” it said.