State Senate: Republican majority
State House: Republican majority
Governor: Greg Gianforte (R)
Attorney General: Austin Knudsen (R)
Summary:
While only meeting every other year, Montana’s legislature churned through many free speech related bills in 2023, many spearheaded by one of the three members of the Reiger family: father Sen. Keith Reiger, daughter Rep. Amy Reiger, and son Rep. Matt Reiger.
Highlights include SB 270, which protects employee and job applicant rights to legal expressions of free speech, including posts made on social media; providing that termination of an employee based on the employee’s legal expression of free speech, “including but not limited to statements made on social media,” is discrimination and subject to wrongful discharge laws.
HB 303, the Medical Ethics and Diversity Act, provides Providing protections for medical practitioner, health care institution, and health care payer actions based on conscience by requiring the state’s department of public health and human services, or any other entity that grants licensure or certification may not reprimand, sanction, or revoke or threaten to revoke a license, certificate, or registration of a medical practitioner for engaging in speech or expressive activity protected under the first amendment, with limited exceptions.
Similarly, HB 443 prohibits discrimination based on the free exercise of religion or the freedom of speech and expression in the real estate industry and other licensed professions or occupations. And in 2021, the governor signed SB 370, which in the wake of covid, revised disaster and emergency powers laws, protected constitutional rights of speech, press, redress, and assembly during an emergency, clarified the limitations on government authority during an emergency, and provided means for civil relief.
Despite his state’s small size, Attorney General Austen Knudsen has been a major national leader on many multi-state legal efforts combating a variety of censorship types.
Key Policymakers:
- Sen. Keith Regier [R], Sen. Jason Ellsworth [R]
- Rep. Amy Regier, Rep. Kerri Seekins-Crowe [R]
- Attorney General Austin Knudsen
Legislative Activity:
SB 270 (Signed into Law): Protecting employee and job applicant rights to legal expressions of free speech, including posts made on social media; providing that termination of an employee based on the employee’s legal expression of free speech, including but not limited to statements made on social media, is discrimination and subject to wrongful discharge laws. Introduced by Sen. Keith Regier [R] in Feb. 2023, passed both chambers with some bipartisan opposition, and signed into law on May 2, 2023.
HB 303 (Signed into Law): The Medical Ethics and Diversity Act. Providing protections for medical practitioner, health care institution, and health care payer actions based on conscience; providing protections for objecting to participating in health care services based on conscience; providing free speech protections; providing whistleblower protections; providing immunity; limiting governmental liability. Provides that the department of public health and human services, a licensing board operating under Title 37, or any other entity that grants licensure or certification may not reprimand, sanction, or revoke or threaten to revoke a license, certificate, or registration of a medical practitioner who is licensed or certified by the department or board for engaging in speech or expressive activity protected under the first amendment to the U.S. Constitution, unless the department or board demonstrates beyond a reasonable doubt that the medical practitioner’s speech was the direct cause of physical harm to a person with whom the medical practitioner had a practitioner-patient relationship within the 3 years immediately preceding the incident of physical harm. Introduced by Rep. Amy Regier [R] in January 2023, passed both chambers largely along partisan lines, and signed into law on May 3, 2023.
HB 788: An act generally revising laws protecting constitutional rights of petition and free speech; authorizing a person subject to a lawsuit arising from an act in furtherance of a constitutional right of petition or free speech to file a special motion to strike a claim in a civil action; providing a definition; and providing for the award of costs and reasonable attorney fees to a party prevailing on a special motion to strike. Introduced by Rep. Lola Sheldon-Galloway [R] in February 2023 but did not advance.
SB 370 (Signed into Law) (2021): Revising disaster and emergency powers laws; protecting constitutional rights of speech, press, redress, and assembly during an emergency; clarifying the limitations on authority during an emergency; providing for civil relief. Introduced by Sen. Jason Ellsworth [R] in Feb. 2021, passed both chambers along partisan lines, and signed into law on April 30, 2021.
HB 443 (Signed into Law): An act prohibiting discrimination based on the free exercise of religion or the freedom of speech and expression in the real estate industry and other licensed professions or occupations; prohibiting the investigation of a complaint against a licensed professional for unprofessional conduct based on the licensed professional’s free exercise of religion or freedom of speech and expression; providing that it is not unprofessional conduct to engage in the free exercise of religion or the freedom of speech and expression; providing that it is unprofessional conduct to aid or abet any person or organization in taking adverse action against a licensed professional based on the licensed professional’s free exercise of religion or freedom of speech and expression. Introduced by Rep. Kerri Seekins-Crowe [R] in Feb. 2023, passed both chambers largely along partisan lines, and signed into law on May 3, 2023.
HB 587 (2021): Prohibiting censorship by social media site providers; providing for a civil cause of action against a social media site that censors speech; allowing an interactive computer service provider to limit content explicitly through the provider’s terms of service; authorizing the award of treble damages, punitive damages, costs, and attorney fees. Introduced by Rep. Lola Sheldon-Galloway [R] in Feb. 2021 but did not progress.
HB 770: Requiring social media platforms to publicly disclose certain information; requiring social media platforms to publish acceptable use policies and transparency reports; providing requirements for removal of content from social media platforms and requiring an appeal procedure to challenge the removal; prohibiting censorship by social media platforms; providing a cause of action and remedies against a social media platform. Introduced by Rep. Matt Regier [R] in Feb. 2023 and passed the House along partisan lines, but died in the senate.
Legal Actions:
Multi-State Amicus in NRA vs. Vullo. On January 16, 2024, 23 AG’s offices joined Montana-led multi-state amicus filing to the US Supreme Court supporting the NRA in a suit against NY Financial Services Department head Maria Vullo for using her authority to pressure financial institutions away from doing business with the NRA. Key quote: Government officials may advocate preferred policy positions and criticize contrary positions, but they may not use the government speech doctrine to surreptitiously engage in the regulation of private speech. On May 30, 2024, SCOTUS held that “The NRA plausibly alleged that respondent violated the First Amendment by coercing regulated entities to terminate their business relationships with the NRA in order to punish or suppress gun-promotion advocacy; overturned the 2nd circuit ruling, and remanded the case.
Multi-State Amicus in Murthy v Missouri. On February 9, 2024, AG Knudsen led a coalition of 16 Republican AGs in an amicus brief to the Supreme Court supporting Missouri and respondents. Joining him were the AGs from Alabama, Alaska, Florida, Georgia, Idaho, Iowa, Kansas, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and the Arizona Legislature.
Multi-State Amicus in O’Handley v. Weber. On August 23, 2023, AG Knudsen led a coalition of nine attorneys general in asking the Supreme Court of the United States to take up the social-media censorship case of O’Handley v. Weber and protect Americans’ right to free speech. The attorneys general filed a brief in support of Rogan O’Handley, a political commentator who was censored on Twitter for his tweets regarding the 2020 election. The California Secretary of State’s Office of Election Cybersecurity colluded with the social media giant to censor O’Handley for speech it deemed to be “misinformation.” O’Handley has asked SCOTUS to review the case and reverse the U.S. Court of Appeals for Ninth Circuit’s decision.
AG Letter calling on YouTube to stop censoring firearms-related speech. On November 2, 2022, AG Knudsen sent a letter to YouTube to stop censoring legal firearm-related content on its platform, restore videos it removed which were all related to legal products and activities, and to “start acting like the platform it claims to be, instead of the publisher that it wishes it was.” In a letter to YouTube CEO Susan Wojcicki, Attorney General Knudsen explained that the company recently removed a video from The Rogue Banshee’s channel, a Montana-based content creator, that provided instructions on how to finish construction of an “80% lower.” Even though incomplete lower receivers are not regulated as firearms by the ATF and are legal, five Democrat U.S. Senators wrote a letter to YouTube asking them to censor and remove about a dozen videos related to them. YouTube complied, and AG Knudsen noted that “YouTube’s actions of removing legally protected speech and legal underlying conduct fit its pattern of censoring conservative viewpoints.”
Attorney General Knudsen calls on DHS to disband its Orwellian ‘misinformation’ board. On May 6, 2022, AG Knudsen called on the Biden administration to disband its Orwellian “Disinformation Governance Board” before it further chills free speech, calling it “unconstitutional, illegal, and un-American.” In a letter to Department of Homeland Security Secretary Mayorkas, Attorney General Knudsen and 19 other state attorneys general decried the administration’s attack on the First Amendment, saying “the creation of a “Disinformation Governance Board” violates the constitutional freedoms that state attorneys general are responsible for defending. The Disinformation Governance Board, by its very existence, and almost certainly by design, threatens to ‘enforce silence’ when Americans wish to express views disfavored by the Administration. It is therefore already chilling free speech and impeding the political process,” the letter states. “This is unconstitutional, illegal, and un-American. Unless you turn back now and disband this Orwellian Disinformation Governance Board immediately, the undersigned will have no choice but to consider judicial remedies to protect the rights of their citizens. The board’s creation itself, which has been compared to the “Ministry of Truth” from George Orwell’s novel 1984, abridges a citizen’s right to express their opinions and disagree with the government, furthering self-censorship rather than protecting freedom of speech. The board’s creation is also another example of federal overreach from the Biden administration as there is no statutory authority to support it.”
21-State Coalition in Support of National TikTok Ban. On August 5, 2024, Montana Attorney General Austin Knudsen co-led a 21-state coalition urging the United States Court of Appeals for the District of Columbia to uphold the TikTok divest-or-ban legislation that became law on April 24, 2024. This federal law bans TikTok in the United States unless ByteDance, TikTok’s Chinese-owned parent company, sells its stake in the platform. In response, ByteDance and TikTok filed a lawsuit against the federal government. The attorneys general are asking the court to deny TikTok’s petition, asserting that Congress has the power to act in this matter of national security and foreign affairs. Their letter claims that “TikTok poses significant threats to both national security and consumers’ privacy by indiscriminately collecting user data that could be accessed by the Chinese Communist Party, a longstanding adversary of the United States. Additionally, TikTok’s operations infringe upon Americans’ right to privacy and promote harmful content to minors. Allowing TikTok to operate in the United States without severing its ties to the Chinese Communist Party exposes Americans to the risk of the CCP accessing and exploiting their data.”
Montana Attorney General Austin Knudsen co-led this amicus brief with Virginia Attorney General Jason Miyares and were joined by the AGs of: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, and Utah.
