ACLU and EFF File Friend-of-the-Court Brief Opposing Unconstitutional Montana TikTok Ban

MISSOULA, Mont. — Today, the American Civil Liberties Union, ACLU of Montana, and the Electronic Frontier Foundation (EFF) filed an amicus brief in the consolidated lawsuits brought by TikTok and five TikTok creators challenging the constitutionality of SB 419, Montana's TikTok ban. The ban, which was enacted this spring but doesn’t go into effect until Jan. 1, 2024, blocks all people from accessing and using TikTok in Montana. The plaintiffs are seeking a preliminary injunction to block the law from going into effect.

“Once again, Montana’s legislature seeks to unnecessarily insert itself into the daily life of ordinary Montanans,” said Alex Rate, legal director with the ACLU of Montana. “We will not stand idly by while the government adopts unconstitutional new restrictions on the ways that we communicate with one another.”

Montana’s ban on TikTok — an application that hundreds of thousands of people in the state use to communicate, receive information, and express themselves — is both unprecedented and unconstitutional. As the brief lays out, this law is a direct restriction on First Amendment-protected expression and association. It also deliberately singles out a communications platform, imposing a blanket prohibition that will make it impossible for users to speak and associate through TikTok.

“Many Montanans use TikTok to communicate with local and global audiences,” said David Greene, EFF’s Civil Liberties Director. “The state must not violate their rights by banning this speech platform.”

The brief urges the court to see this law for what it is: a sweeping ban on free expression that triggers the most exacting scrutiny under the First Amendment. It also lays out the especially important and outsized role TikTok plays for communities of color seeking to foster solidarity online and to highlight issues specific to them. For example, one Indigenous artist based in Montana, @Supaman, reaches over 79,000 followers on TikTok with videos showcasing not only his music and dance but also Indigenous hope, history, and resilience.

“The Constitution imposes an extraordinarily high bar on this kind of mass censorship,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “Montana’s law violates the First Amendment, plain and simple, and it should be halted.”