OPINION:
The 5th U.S. Circuit Court of Appeals’ recent decision allowing Texas’ App Store Accountability Act to take effect while litigation proceeds has focused attention on familiar debates: parental controls, online privacy and government oversight of digital platforms.
Yet the most consequential issue may be one the court barely acknowledged: its apparent assumption that app stores are engaged primarily, if not exclusively, in commercial speech.
If that premise holds, then the implications will extend far beyond the two primary app stores, potentially reshaping how courts understand speech, expression and access to information across the modern internet.
The Supreme Court has long distinguished between commercial speech and fully protected speech. Commercial speech traditionally involves commercial transactions, advertising or communications about the sale of goods and services.
Although commercial speech receives constitutional protection, it receives less protection than religious, political or other forms of fully protected expression.
That distinction works well in the physical world. Newspaper ads are treated differently from that paper’s editorial. Catalogs are treated differently from political pamphlets.
Courts generally recognize that commercial transactions may occur alongside protected speech without transforming the underlying speech into commercial speech.
The internet complicates this distinction because digital platforms often combine commerce and expression. The fact that a user pays for access to a service, subscribes to a platform or exchanges data in return for functionality does not automatically transform every communication on that platform into commercial speech.
That reality is especially apparent in app stores.
Today, apps are not merely products. They are among the primary ways Americans access information, communicate with one another, engage in political debate, consume news, participate in religious activities, create art and publish their own views. Americans increasingly experience the internet through applications rather than traditional web browsers.
Social media platforms, news services, educational resources, video-sharing sites, podcast platforms, messaging services and numerous other speech-related activities are accessed through apps.
In practical terms, denying access to apps increasingly means denying access to substantial portions of modern public discourse.
App stores, therefore, serve a function that extends far beyond facilitating commercial transactions. By curating and distributing applications, they help users locate and access vast quantities of fully protected speech. They act as gateways to communications platforms, educational resources and expressive communities.
The 5th Circuit’s contrary reasoning appears to rely heavily on the notion that app stores exchange access to applications for money, personal data or other forms of economic value. Under this theory, the transaction itself becomes the defining characteristic of the speech relationship.
The problem is that such a theory lacks a clear limiting principle.
Much of the modern internet operates through similar exchanges. Social media platforms provide access to expressive content in exchange for user data. Search engines collect information while helping users locate speech and information. Video-sharing platforms monetize user attention through advertising. News organizations require subscriptions.
Under a broad “data for speech” theory, virtually every one of these services, as well as email and cloud-data storage services, could be characterized as commercial speech simply because some economic exchange occurs in connection with the dissemination of information.
That result would represent a dramatic departure from established First Amendment doctrine.
The Supreme Court has never suggested that speech loses constitutional protection merely because it is distributed through a business model. Newspapers charge subscription fees. Book publishers sell books. Broadcasters sell advertising. Yet courts have consistently recognized that the presence of commerce does not transform the underlying expression into commercial speech.
The same principle should apply online. Although the internet’s dominant communication platforms often operate through complex economic arrangements, treating them solely as engaged in commercial speech, simply because money or data changes hands, would ignore the fundamentally expressive nature of the speech they host and threaten to reclassify vast portions of the modern information ecosystem.
That danger extends far beyond the Texas statute itself. Whatever one’s views on age verification, parental consent requirements or app store regulation, courts should hesitate before adopting doctrinal theories that narrow First Amendment protections for the digital infrastructure through which Americans increasingly exercise their constitutional freedoms.
The proper question is not whether app stores participate in commerce; of course, they do. The proper question is whether their commercial activities eliminate the expressive and speech-facilitating functions they perform. The answer is plainly no.
If that reasoning is allowed to stand, then the consequences could reach far beyond app stores and reshape the constitutional status of much of the online world.
• Andrew Langer is president of the Institute for Liberty.
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