ACLU and EFF Amicus Brief in Alario & TikTok v. Knudson

WASHINGTON — The House Energy and Commerce Committee announced it would be voting on a bill this Thursday that would effectively ban TikTok in the United States. This bill, which was introduced by Reps. Mike Gallagher (R-Wis.) and Rep. Raja Krishnamoorthi (D-Ill.), would violate the First Amendment rights of hundreds of millions of Americans who use the app to communicate and express themselves daily. “We’re deeply disappointed that our leaders are once again attempting to trade our First Amendment rights for cheap political points during an election year,” said Jenna Leventoff, senior policy counsel at the American Civil Liberties Union. “Just because the bill sponsors claim that banning TikTok isn’t about suppressing speech, there’s no denying that it would do just that. We strongly urge legislators to vote no on this unconstitutional bill.” The ACLU has repeatedly explained that banning TikTok would have profound implications for our constitutional right to free speech and free expression because millions of Americans rely on the app every day for information, communication, advocacy, and entertainment. And the courts have agreed. In November 2023, a federal district court in Montana ruled that the state’s attempted ban would violate Montanans’ free speech rights and blocked it from going into effect. Like Montana’s blocked TikTok ban, this legislation would forbid app stores and internet service providers from offering TikTok so long as the company remains under foreign ownership. The proposed legislation would also let the President block other foreign-owned apps that they deem a national security threat.  

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.”

HELENA — Montana Governor Greg Gianforte signed an unconstitutional statewide TikTok ban into law today, over the objections of the American Civil Liberties Union, ACLU of Montana, and other free-speech organizations. “With this ban, Governor Gianforte and the Montana legislature have trampled on the free speech of hundreds of thousands of Montanans who use the app to express themselves, gather information, and run their small business in the name of anti-Chinese sentiment,” said Keegan Medrano, policy director at the ACLU of Montana. “We will never trade our First Amendment rights for cheap political points.” The ban will prohibit TikTok from operating in the state, and will also prohibit app stores from allowing users in Montana to download the TikTok app. If companies allow users to download the app, they’ll initially be fined $10,000, and then another $10,000 for every day the violation continues. If the courts don’t act, the ban will go into effect on January 1, 2024. As the ACLU and half a dozen free speech and civil liberties organizations explained in a letter sent to the Montana House of Representatives in April, this legislation flouts the First Amendment. The government cannot impose a total ban on a communications platform like TikTok unless it is necessary to prevent extremely serious, immediate harm to national security. But there’s no public evidence of harm that would meet the high bar set by the U.S. and Montana Constitutions, and a total ban would not be the only option for addressing such harm if it did exist.

WASHINGTON — In a letter sent to the Montana House of Representatives today, the American Civil Liberties Union, ACLU of Montana, and half a dozen free speech and civil liberties organizations implored members to vote no on SB 419, a bill that would ban TikTok in the state of Montana, violating the First Amendment rights of hundreds of thousands of Montanans who use the app to communicate, gather information, and express themselves daily. As the letter to the Montana House makes clear, passing this legislation would flout the First Amendment and trample on Montanans’ constitutional right to freedom of speech. The government cannot impose a total ban on a communications platform like TikTok unless it is necessary to prevent extremely serious, immediate harm to national security. But there’s no public evidence of harm that would meet the high bar set by the U.S. and Montana Constitutions, and a total ban would not be the only option for addressing such harm if it did exist. Signatories include Americans for Prosperity Montana, the Center for Democracy and Technology, Electronic Frontier Foundation, the Foundation for Individual Rights and Expression, and TechFreedom. The following quotes are attributable to the legal and policy experts who signed on to this letter: “Montana’s TikTok bill is censorship, plain and simple,” said Jenna Leventoff, senior policy counsel at ACLU. “Montanans deserve better than to have their representatives violate their free speech rights by cutting them off from a unique platform that allows them to speak their minds, exchange information, and learn new things.” “The bottom line is that this bill is censorship: The government and politicians have no right to control what technology goes on your phone,” said David Herbst, state director of Americans for Prosperity - Montana. “National Security does not, nor should it ever, trump Montanan’s civil liberties. This bill is a step too far, and we urge lawmakers to reject this blatant government overreach.” "Banning TikTok in Montana would raise serious First Amendment concerns and is not the appropriate way to protect the privacy of user's data or respond to content on the app that lawmakers disapprove of,” said Caitlin Vogus, deputy director of the Free Expression Project at the Center for Democracy & Technology. “We urge the Montana legislature not to take this dangerous step toward limiting Montanans' ability to speak freely and receive information online." “Many Montanans use TikTok to communicate with local and global audiences,” said Jason Kelley, interim director of activism at EFF. “The state must not violate their rights by banning this speech platform.” “Montana should abandon this bill, which would restrict the free flow of information and ideas online,” said Tyler Coward, senior legislative counsel at FIRE. “Protecting user data from hostile foreign regimes may be a worthy goal, but the government has not shown that a sweeping ban of an entire forum for online speech is necessary to achieve it.” “Government has long appealed to ‘national security interests’ to justify intrusions on protected First Amendment activity,” said Ari Cohn, free speech counsel at TechFreedom. “It is a convenient justification that trades on fear and discourages close scrutiny of the alleged danger and the means by which the government seeks to address it. Legislatures must do the hard work of actually defining the harm and carefully tailoring any proposed resolutions, rather than aiming the flamethrower of moral panic at the First Amendment.”