Court Declines to Dismiss FSC Challenge to Montana Age Verification Act

In the decision, Molloy noted that the state “seeks to dismiss Plaintiffs’ claims largely on the basis that they lack substantive merit, not because they are inadequately pled. Accordingly, the State’s motion to dismiss is primarily denied.”

The judge did dismiss one claim from the complaint, however, finding that the plaintiffs “Plaintiffs attempt to overreach in pleading a claim under the dormant Commerce Clause, and the State’s motion is granted as to that single claim.”

Molloy’s decision otherwise favored the plaintiffs, at least at this stage of the case, where the question is whether the plaintiffs have stated claims adequate to survive a motion to dismiss.

“The State argues that Plaintiffs have failed to state a plausible First Amendment claim because obscene materials are not protected speech and, even if they are, the Act passes constitutional muster under any level of scrutiny, primarily because ‘it doesn’t prohibit any speech,’” Molly wrote. “Plaintiffs, on the other hand, argue that Montana’s Age Verification Act burdens constitutionally protected speech and is subject to strict scrutiny, the standard governing content-based speech restrictions. Plaintiffs are correct on both counts. Whether the Act survives such scrutiny is a question for a later date.”

Molloy added that the state “first argues that Plaintiffs cannot state a plausible First Amendment claim because ‘the First Amendment doesn’t protect content that is obscene for minors.’”

“In response, Plaintiffs insist that ‘invoking the innocence of children is not, and cannot be, a magic incantation sufficient for legislatures to run roughshod over the First Amendment rights of adults,’” Molloy observed. “Plaintiffs have the better argument. Because the Act burdens protected speech in several ways, it ‘triggers review under the First Amendment.’”

In a statement hailing the ruling, FSC noted that “like the Utah law and those in several other states, Montana’s law allows for enforcement only through private lawsuits, meaning that citizens—rather than the state—can sue websites for non-compliance.”

“Supporters of the law argue that because no government official is directly responsible for enforcement, the law cannot be challenged until someone sues under it,” FSC added.

The fact that Molloy has allowed the lawsuit to continue represents “a major victory in the fight for free speech and internet freedom,” FSC Executive Director Alison Boden said.

“Despite the Montana Attorney General’s attempt to dismiss the validity of our claims, the court has ruled that the case can proceed,” Boden added. “We look forward to arguing this case on its merits.”

To read Judge Molloy’s decision in full, click here.