Montana's TikTok ban violates the First Amendment, EFF and others told the Ninth Circuit Court of Appeals in a friend-of-the-court brief and urged the court to affirm a trial court's holding from December 2023 to that effect.
Montana's ban prohibits TikTok from operating anywhere within the state and imposes financial penalties on TikTok or any mobile application store that allows users to access TikTok.
Last year, EFF-along with the ACLU, Freedom of the Press Foundation, Reason Foundation, and the Center for Democracy and Technology-filed a friend-of-the-court brief in support of TikTok and Montana TikTok users' challenge to this law at the trial court level.
As the brief explains, Montana's TikTok ban is a prior restraint on speech that prohibits Montana TikTok users-and TikTok itself-from posting on the platform.
The law also prohibits TikTok's ability to make decisions about curating its platform.
Prior restraints such as Montana's ban are presumptively unconstitutional.
For a court to uphold a prior restraint, the First Amendment requires it to satisfy the most exacting scrutiny.
The prior restraint must be necessary to further an urgent interest of the highest magnitude, and the narrowest possible way for the government to accomplish its precise interest.
Montana's TikTok ban fails to meet this demanding standard.
Even if the ban is not a prior restraint, the brief illustrates that it would still violate the First Amendment.
This appeal is happening in the immediate aftermath of President Biden signing into law federal legislation that effectively bans TikTok in its current form, by requiring TikTok to divest of any Chinese ownership within 270 days.
This federal law raises many of the same First Amendment concerns as Montana's.
It's important that the Ninth Circuit take this opportunity to make clear that the First Amendment requires the government to satisfy a very demanding standard before it can impose these types of extreme restrictions on Americans' speech.
This Cyber News was published on www.eff.org. Publication date: Sat, 18 May 2024 08:43:05 +0000