Mont. TikTok Ban ‘Squelches’ App Stores’ First Amendment Rights, Says CCIA

The several Computer & Communications Industry Association members “directly regulated” by Montana’s TikTok ban (SB-419) will have their “core First Amendment rights” infringed unless the law is enjoined, said the association’s amicus brief Thursday (docket 9:23-cv-00056) in U.S. District Court for Montana in Missoula. CCIA filed the brief in support of the preliminary injunction the plaintiffs seek to block Montana Attorney General Austin Knudsen (R) from enforcing SB-419 when it takes effect Jan. 1.

Under the law, an app store accessible by 100,000 people within Montana will be liable for $1 billion in civil fines for each day TikTok remains available, said CCIA. By “punishing” app stores for every person who could access TikTok, even if the person never downloads or uses it, SB-419 “imposes harsher penalties on app stores than on TikTok itself,” it said. TikTok is liable “only if people within Montana actually access it,” it said.

App stores’ “expressive control” is essential to “the flourishing array of experiences that users seek on their devices,” said CCIA. Like a publisher who selects and arranges articles by third-party authors, a bookstore that selects which books to offer and promote, and a cable operator selecting its programming, app stores “engage in protected speech when they exercise their editorial discretion about which apps to present and how,” it said. Montana’s unprecedented and severe restriction on what app stores can offer “infringes these private companies’ First Amendment rights,” it said.

The court should evaluate the unconstitutionality of SB-419’s restrictions on app stores in determining whether the plaintiffs’ “facial challenge” to the law “is likely to succeed,” said CCIA. The plaintiffs, five Montana-based TikTok users with hundreds of thousands of followers (see 2305190035), plus TikTok itself, have presented an “overbreadth challenge” to SB-419, it said. The overbreadth doctrine “provides that a law is facially invalid when its unconstitutional scope is both real and substantial in relation to any lawful effect,” it said.

Though the overbreadth doctrine may often turn on hypotheticals, “in this case it turns on direct, concrete, and explicit effects on CCIA’s members,” said CCIA. SB-419 “squelches app stores’ First Amendment rights,” it said. If, “as seems likely,” Montana can’t “justify” SB-419’s restrictions on TikTok and its users, “then it plainly has no basis to prohibit app stores from making TikTok available,” it said.

Nor can Montana justify targeting app stores with “draconian sanctions,” said CCIA. The court should consider the “broader danger to online expression” if other states feel empowered to target app stores to ban apps and other content they wish to suppress, it said.