Analysis: FSC's Montana Lawsuit Could Be in Friendly Territory

HELENA, Mont.—The Free Speech Coalition recently announced it is suing Montana Attorney General Austin Knudsen to enjoin the state from enforcing Senate Bill (SB) 544. SB 544 is Montana's age verification law, modeled after similar legislation that relies on private parties to bring enforcement actions and levy penalties against adult platforms. As noted in previous coverage by AVN, this is colloquially known a "bounty law," where private parties can sue others to enforce the law. FSC sued Utah in federal court for a bounty age verification law but saw it dismissed due to the technical language outlined in that bill preventing the state from enforcing it. That decision is on appeal at the U.S. Tenth Circuit Court of Appeals. Louisiana, the first state in the country to implement age verification, has similar provisions in place that prioritize private enforcement actions to enforce age verification. Note that private enforcement actions are often not the subject of controversy, but a U.S. Supreme Court decision to allow a private enforcement action law in Texas that regulates abortion and reproductive rights access to enter force has emboldened predominately conservative state lawmakers to impose age verification rules in such a manner. Texas Senate Bill 8, or the Texas Heartbeat Act, prohibits doctors from carrying out abortion procedures and empowers private citizens to sue anyone who aids and abets an abortion. Reproductive rights groups and clinics sued to block the law, but the conservative-leaning high court said that state officials can't be sued when private enforcement actions through the state's courts are the only means to enforce the law. SB 544 in Montana is similarly worded to the Utah and Louisiana age verification bounty laws prompting the lawsuit. Alison Boden, the Free Speech Coalition executive director, was quoted in a press announcement saying SB 544 "is dangerous, ineffective and deeply unconstitutional." "These laws, while nominally about age verification, are so dangerous to consumer privacy that their practical effect is to censor constitutionally protected expression," she explained in the press release. "We are fully committed to fighting these attacks on free speech.”  FSC is joined by other plaintiffs, including online sexual health platform O.school, Justfor.Fans, local porn writer Lynsey G, Seattle journalist Charyn Pfeuffer and several others.   In examining the lawsuit, the makeup of the court and the legislation, it's not unreasonable to forecast that the Free Speech Coalition and its fellow plaintiffs might be able to pull off a victory in challenging Senate Bill 544.   While FSC's age verification lawsuits have yielded mixed results, it might go before judges in this case who are likely to be more open to hearing arguments on the technical aspects of SB 544 and its alleged constitutional violations of the First Amendment. The lawsuit is filed in the U.S. District Court for the District of Montana, which is a liberal-leaning jurisdiction.   Former Democratic President Barack Obama appointed Chief U.S. District Judge Brian Morris, along with district Judges Dana L. Christensen and Susan P. Watters. Former Democratic President Bill Clinton appointed Judge Donald W. Molloy. The court also appointed several magistrate judges to aid the small federal district.   Montana is covered by the U.S. Ninth Circuit Court of Appeals, a liberal appellate court that often supports upholding existing First Amendment case law. Montana is potentially a winnable jurisdiction compared to that of the FSC's case against the state of Texas challenging its age verification law, which was filed in the U.S. District Court for the Western District of Texas and ruled against by the Fifth Circuit, thus bucking First Amendment case law and prompting the current appeal to the U.S. Supreme Court.   Hypothetically speaking, if the Ninth Circuit decides to hear an appeal in this lawsuit and renders a decision that holds Montana has violated the First Amendment by implementing age verification requirements, this could queue a split among the appeals circuits. In such a case, the Supreme Court would have to intervene. It would be favorable for the FSC to secure a conflicting appeals court opinion on age verification, similar to a pair of lawsuits brought by NetChoice, a trade group representing large tech firms.   Those cases have already been heard before the Supreme Court, and a joint decision could significantly impact Section 230 regulation and most internet platforms in the near future.   The appeal by the FSC and its fellow plaintiffs to the high court of the Fifth Circuit's ruling on the Texas case has received an outpouring of support from many civil society groups in the form of amicus briefs urging SCOTUS to declare age verification unconstitutional.