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A still from an Epic Games video instigating the lawsuit against Apple – Image Credit: Epic Games
Apple shouldn’t have to change the App Store rules to meet a court order in the long-running lawsuit with Epic, a trade group insists, as it would violate Apple’s First Amendment rights.
In April, the ever-persisting Epic vs Apple trial saw the court sanction Apple for deliberately violating a 2021 injunction to remove anti-steering barriers for third-party businesses. As part of the sanction, Apple was ordered to make quite a few changes.
The list of requirements ranged from not charging a fee on purchases made outside of an app, to stop limiting how developers promote alternative payment options within their apps, to allowing developers to more freely use links in apps, among other measures.
Apple was fast to disagree with the ruling and, while agreeing to comply, it insisted it would appeal. On June 24, it filed to the 9th Circuit Court to undo the “unduly punitive” mandate.
To aid that appeal, the Computer & Communications Industry Association (CCIA), alongside trade association NetChoice, has stepped in to file an amicus brief supporting Apple’s appeal in the matter.
Apparently, following the injunction would go against Apple’s First Amendment rights.
A free-speech issue
The 47-page brief goes at length to explain that Apple’s free-speech rights are being curtailed by the sanctions. It is largely because they apparently restrict how Apple can respond to content within apps put in place by developers.
For example, in an injunction line states that Apple has “to carry any and all developer speech, even if misleading or disparaging to Apple, in connection with links to external purchases.”
The reasoning that this harms Apple’s rights to freedom of speech is that it prevents Apple from setting any restrictions on the developer’s style, language, flow, or placement of links of purchases outside of an app.
Apple could also be forced to disseminate speech on its platform against its will, the brief continues. In another reference, when customers arrive at the checkout on Apple’s own platform, Apple “must permit unlimited advertisements for purchases elsewhere.”
The brief argues that the First Amendment does not allow government actors to direct private entities to “accommodate messages it would prefer to exclude,” such as a court order against Apple.
It goes on to say that it’s also “more constitutionally offensive” for a company to deal with messaging that would “condemn” itself.”
As such, the brief asks the court to consider the First Amendment implications of the injunction.
“A court order forcing a party to speak in a prescribed way is just as problematic under the First Amendment as a law passed by a legislative body,” said CCIA Senior Vice President, Chief of Staff, and Director of CCIA Litigation Center Stephanie Joyce. “The injunction against Apple contains restrictions on speech that deserve the most stringent review.”
Joyce continues, “Apple should remain free to speak of its own products and services as it chooses.”
Member benefits
While the filing of an amicus brief from a company not directly involved in a lawsuit is a fairly normal practice, the brief does come from an Apple ally.
The CCIA describes itself as an international not-for-profit trade association representing communications and technology firms. Apple is a member of the group, among similarly well-heeled tech companies including Google, Amazon, Cloudflare, Meta, Uber, and Intel.
Epic is not listed as a member of the body.
The membership of Apple in the group is addressed in the brief, advising that Apple didn’t author the brief at all. It also insists that Apple didn’t make any financial contribution to fund the creation of the brief either.
