Alario v. Knudsen: Montana’s TikTok ban is unconstitutional
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Amicus Brief

Alario v. Knudsen: Montana’s TikTok ban is unconstitutional

Montana Senate Bill 419 is an unconstitutional ban on free expression that triggers the most exacting scrutiny under the First Amendment.

Samantha Alario, et. al.,


Austin Knudsen,
In his official capacity as Attorney General of the State of Montana,

On Appeal from the United States District Court for the District of Montana (Missoula)

Lead Case No. Cv 23-56-M-DWM

Brief of Amici Curiae
American Civil Liberties Union, American Civil Liberties Union of Montana, Electronic Frontier Foundation, Freedom of the Press Foundation, Reason Foundation, and Center for Democracy & Technology
In Support of Plaintiffs–appellees


Montana’s ban on TikTok—an application that hundreds of thousands of people in the state use to communicate, learn about the world, and express themselves—is unconstitutional. As the district court recognized, Senate Bill 419 “completely bans a platform where people speak.” It directly restricts protected speech and association, deliberately singles out a particular medium of expression for a blanket prohibition, and imposes a prior restraint that will make it impossible for users to speak, access information, and associate through TikTok. As a result, the statute triggers an especially exacting form of First Amendment scrutiny.

The district court correctly held SB 419 unconstitutional, but it reached that conclusion after applying only intermediate scrutiny under the First Amendment. While applying the proper standard should not change the outcome in this case, amici urge this court to recognize that under the Supreme Court’s and this court’s precedents, a higher level of First Amendment scrutiny governs here—and would apply to any other government attempt to ban Americans from accessing an entire medium of expression. Amici’s brief sets out the First Amendment standards that apply to the state’s effort to ban a social media platform like TikTok.

First, SB 419 constitutes a prior restraint on TikTok and its users, an especially disfavored means of restricting First Amendment rights. This is because the statute will shut down the app, blocking hundreds of thousands of users in Montana, as well as TikTok itself, from engaging in protected expression “in advance of the time that [their] communications are to occur.” Alexander v. United States, 509 U.S. 544, 550 (1993).

As a result, the district court was required to apply an “extraordinarily exacting” form of strict scrutiny. Columbia Broad. Sys., Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 729 F.2d 1174, 1178 (9th Cir. 1984).

Second, even if this court did not apply strict scrutiny to Senate Bill 419, the state would still have to satisfy a strict narrow-tailoring requirement because the statute is a total ban on a unique and important means of communication. See City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).

In these circumstances, courts apply an exacting standard: a total ban fails unless it “curtails no more speech than is necessary to accomplish its purpose.” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).

Finally, the degree of judicial scrutiny that applies to SB 419 is not diminished by the State’s national security and foreign espionage claims. As both the Supreme Court and this court 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. See, e.g., N.Y. Times Co. v. United States (“Pentagon Papers”), 403 U.S. 713, 729–30 (1971).

In fact, the judiciary has an especially critical role to play in ensuring that the government meets its burden when national security is invoked.

Amici urge the court to see Montana Senate Bill 419 for what it is: a sweeping ban on free expression that triggers the most exacting scrutiny under the First Amendment.

Applying the proper test, this court should affirm the district court’s order granting preliminary injunctive relief under the First Amendment.

Full Amicus Brief: Alario v. Knudsen