by Rob Natelson

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Imagine the state legislature passes a law that says this:

“A Montana driver’s license allows you to drive on all state roads—except not to church services. People can still go to church, but they have to walk or find other arrangements.”

Would that law be constitutional?

Or suppose a law says that a barber’s license allows you to cut hair, but you can’t talk politics in your barbershop. If you do, you lose your license. Would that be constitutional?

Or suppose the legislature says a business may incorporate in Montana, but it can’t operate a newspaper. Newspapers must be unincorporated, unprotected by rules of limited liability. Would that be constitutional?

If you answered that all three laws would be unconstitutional, then your grade is 100 percent!

If you are a sponsor of I-194, your grade is “Zero”.

The Unconstitutional Conditions Doctrine

Each of those three hypothetical laws is unconstitutional for the same reason that I-194 is unconstitutional: They condition a government license on forfeiting some of your constitutional rights.

In the first case, the state grants you a driver’s license only if you sacrifice your First Amendment right to free exercise of religion. In the second case, the barber gets a license only at the cost of freedom of speech. In the third case, business organizers may incorporate, but only if they give up their freedom of the press.

And in the case of I-194, organizers may incorporate, but only if they forfeit their rights of freedom of speech and the press.

The Supreme Court calls this rule the “unconstitutional conditions doctrine.” Every law student learns about it.

I-194 is unconstitutional for another reason, too: It tries to protect the establishment media from a restriction it imposes on everyone else.

Montanans Have Seen this Before

Even if I-194’s supporters (some of whom are lawyers) have forgotten basic constitutional law, they should have learned from experience. In 2012, some of these same people tried to defend an ancient Montana statute that denied First Amendment freedoms to people choosing the corporate form. They even convinced the Montana Supreme Court—a panel not known for its legal acumen—to agree with them.

It took about fifteen minutes for the U.S. Supreme Court to summarily reverse. In a per curiam opinion, the court ruled that “There can be no serious doubt” the Montana law violated established precedent. (You can read the opinion here.)

“Well,” a I-194 sponsor might argue, “we want to get the Supreme Court to revisit that opinion.” But that’s clearly a waste of time, because the justices on the bench today are even more protective of First Amendment rights than they were in 2012.

I-194 is so obviously defective, you have to wonder, “What are the sponsors really trying to do? Compile a political mailing list? Build a stable of donors? Promote themselves for higher office?

Or is it just a Hail Mary pass? If so, then as Roger Koopman suggests, maybe they are trying to weaken local Montana businesses and political committees and empower out-of-state dark money groups. After all, Montana businesses and committees would labor under I-194, while out-of-staters would be exempt.

But ultimately, it doesn’t matter. Here are the real choices: (1) I-194 passes and the attorney general has to waste a lot of taxpayer money trying to defend an unconstitutional law or (2) voters defeat it, spare the A-G the trouble, and save themselves some cash.

Because although predicting the outcome of constitutional cases is often risky, this one is almost risk-free: I-194 is not going to survive either way.

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Rob Natelson, a former University of Montana constitutional law professor, is one of the most often-quoted scholars in U.S. Supreme Court opinions. He is Senior Fellow in Constitutional Jurisprudence at the Independence Institute and the Centennial Institute, and the author of the book, “The Original Constitution” (4th ed., 2025).