Free Speech Coalition, Inc. v. Knudsen, 754 F.Supp.3d 1037

Background

In 2023, Montana enacted the Age Verification Act (S.B. 544), requiring commercial websites with a substantial portion (over 33.3%) of material harmful to minors to perform age verification for online access or face civil liability.
Plaintiffs include private companies, individuals, and a trade association (Free Speech Coalition), all involved in providing or accessing online adult or sexual wellness content in Montana.
Plaintiffs challenge the Act on First Amendment, Due Process, Equal Protection, Commerce Clause, and federal preemption (Section 230) grounds, filing facial and as-applied challenges.
Plaintiffs argue the law is overbroad, imposes unconstitutional burdens on adults’ access to legal speech, is vague, and is preempted by federal internet law (Section 230).
The State (through Attorney General Knudsen) moved to dismiss, mainly arguing plaintiffs lack standing and the claims fail as a matter of law.
The court grants dismissal of the Commerce Clause challenge but denies dismissal of all other claims, finding plausible constitutional and statutory grounds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
First Amendment (Speech)	Act restricts adults’ access to constitutionally protected speech; law is content-based and triggers strict scrutiny.	Obscene materials are not protected; law doesn’t prohibit speech, just verifies age; rational basis or intermediate scrutiny should apply.	First Amendment applies; strict scrutiny triggered; claim survives dismissal.
Substantive Due Process	Law intrudes on adults’ fundamental rights to sexual autonomy and privacy.	No fundamental liberty interest implicated; plaintiffs lack standing.	Plaintiffs allege fundamental right per Lawrence; standing exists; claim survives dismissal.
Vagueness/Due Process	Key terms are undefined, law is impermissibly vague and authorizes discriminatory enforcement.	Terms are not vague; law gives sufficient notice and standards.	Plaintiffs plausibly allege vagueness; claim survives dismissal.
Equal Protection	Act impermissibly distinguishes between media providers (news vs. non-news); unequal treatment not rationally justified.	Plaintiffs not similarly situated; injury not plausibly alleged.	Plausible factual allegations for equal protection claim; survives dismissal.
Commerce Clause	Law burdens interstate commerce by regulating internet businesses nationwide.	Law applies equally to all, no discrimination against interstate commerce.	Claim dismissed; law not discriminatory or unduly burdensome under recent precedent.
Federal Preemption (Sec. 230)	Website operators immune from state liability for content posted by third parties; state law is preempted.	Section 230 immunity does not apply; law imposes liability for failures to verify, not content itself.	Plaintiffs state plausible claim for Section 230 preemption; survives dismissal.

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for Rule 12(b)(6) motions)
Erznoznik v. City of Jacksonville, 422 U.S. 205 (protection of minors vs. adults' speech rights)
Ginsberg v. New York, 390 U.S. 629 (scope of state power to restrict materials harmful to minors)
Reno v. American Civil Liberties Union, 521 U.S. 844 (First Amendment protection for indecent but not obscene online content)
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (strict scrutiny for content-based burdens on adult speech)
Lawrence v. Texas, 539 U.S. 558 (broad recognition of sexual autonomy as a protected liberty interest)
Sable Communications of California v. FCC, 492 U.S. 115 (compelling state interest in protecting minors has limits)
Village of Willowbrook v. Olech, 528 U.S. 562 (equal protection—differential treatment standards)
Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 588 U.S. 504 (Commerce Clause antidiscrimination rule)
Nat'l Pork Producers Council v. Ross, 598 U.S. 356 (scope of dormant Commerce Clause limits on state regulation)