• by Wendy Davis  @wendyndavis, August 11, 2023

Montana's ban on TikTok violates the First Amendment rights of app stores, including ones run by Apple and Google, a trade group representing the tech companies argues in new court papers.

“In deciding which apps to allow and how to present them to users, app stores function like publishers and distributors of third-party speech,” the Computer & Communications Industry Association, writes in a friend-of-the-court brief filed Thursday with U.S. District Court Judge Donald Molloy in Missoula. “The First Amendment protects the rights of publishers and distributors to make these 'editorial' choices.”

The organization is urging Molloy to block the new law from taking effect.

The law, passed earlier this year, prohibits app stores from offering the app to people in Montana, and prohibit the use of the app in the state (with some exceptions for law enforcement). The measure doesn't penalize users, but provides for sanctions starting at $10,000 per violation against TikTok and mobile app marketplaces.

Unless blocked, the law will come into effect January 1, 2024.

The Chinese-owned TikTok and several users have asked a judge to prevent the state from enforcing the law, arguing it violate the First Amendment. Their request is backed by several outside groups, including the Reporters Committee for Freedom of the Press, and the tech-industry funded policy organization Chamber of Progress.

The Computer & Communications Industry Association's arguments focus on the law's effect on app stores' First Amendment rights.

“App stores provide an outlet for third-party speech and thus have constitutional rights independent of the third parties whose speech they disseminate,” the group writes. “The editorial discretion exercised by app stores is no less a protected communicative act than are print publications and broadcasts that present speech.”

Montana lawmakers who passed the bill expressed concerns that TikTok's parent company, the Beijing-based ByteDance, shares data about U.S. users with China. Other states have prohibited use of the app on government-owned devices or public WiFi networks, but haven't attempted to ban residents from using the app.

The Montana legislature also accused TikTok of failing to remove “dangerous content” that allegedly encourages young users to engage in risky activity.

The Computer & Communications Industry Association says neither of those concerns justify a ban on the app, but adds that even if those concerns could warrant a ban, there still wouldn't be a valid reason to impose “punitive sanctions” on app stores.

“Even if Montana’s interests are found 'compelling,' the law is not narrowly tailored in imposing punitive sanctions on app stores; Montana could adequately serve its interests by enforcing its ban on TikTok operating in the state,” the organization writes.