Judge Issues Preliminary Injunction Saying That The US Cannot Block WeChat, Says The Ban Raises 1st Amendment Concerns
from the good-to-see dept
While much of the news this weekend with regards to the President’s plans to block Chinese messaging apps focused on the fake “deal” to avert a TikTok ban, things didn’t go the President’s way on his other planned ban. As you may recall, along with TikTok, Trump issued an executive order to ban WeChat, the very popular Chinese social network/messaging/everything app. Last week, we noted that a bunch of WeChat users in the US were trying to get an injunction to block the ban, as the Commerce Department’s details about the ban proved that its stated goal of protecting Americans was nonsense.
The court held a hearing over the weekend (after also holding hearings on Thursday and Friday) and quickly issued a preliminary injunction, blocking the Commerce Department from putting the WeChat ban in place. As the judge rightly notes, there are significant 1st Amendment concerns with the ban. Basically, the court says that the WeChat users have rightly shown that banning the app likely violates the 1st Amendment and creates prior restraint:
On this record, the plaintiffs have shown serious questions going to the merits of their First
Amendment claim that the Secretary’s prohibited transactions effectively eliminate the plaintiffs’
key platform for communication, slow or eliminate discourse, and are the equivalent of censorship
of speech or a prior restraint on it…. The government —
while recognizing that foreclosing “‘an entire medium of public expression’” is constitutionally problematic — makes the pragmatic argument that other substitute social-media apps permit
communication. But the plaintiffs establish through declarations that there are no viable
substitute platforms or apps for the Chinese-speaking and Chinese-American community. The
government counters that shutting down WeChat does not foreclose communications for the
plaintiffs, pointing to several declarations showing the plaintiffs’ efforts to switch to new
platforms or apps. But the plaintiffs’ evidence reflects that WeChat is effectively the only means
of communication for many in the community, not only because China bans other apps, but also
because Chinese speakers with limited English proficiency have no options other than WeChat.
The plaintiffs also have shown serious questions going to the merits of the First Amendment
claim even if — as the government contends — the Secretary’s identification of prohibited
transactions (1) is a content-neutral regulation, (2) does not reflect the government’s preference or
aversion to the speech, and (3) is subject to intermediate scrutiny. A content-neutral, time-placeor-
manner restriction survives intermediate scrutiny if it (1) is narrowly tailored, (2) serves a
significant governmental interest unrelated to the content of the speech, and (3) leaves open
adequate channels for communication…. To be
narrowly tailored, the restriction must not “burden substantially more speech than is necessary to
further the government’s legitimate interests.”… Unlike a content-based
restriction of speech, it “need not be the least restrictive or least intrusive means of serving the
governments interests. But the government still may not regulate expression in such a manner that
a substantial portion of the burden on speech does not advance its goals.”…
As for the supposed “national security” interests of the US government? The court says “yes, if only the DOJ shared any details.”
Certainly the government’s overarching national-security interest is significant. But on this
record — while the government has established that China’s activities raise significant nationalsecurity
concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S.
users addresses those concerns. And, as the plaintiffs point out, there are obvious alternatives to a
complete ban, such as barring WeChat from government devices, as Australia has done, or taking
other steps to address data security.
The court did not go into the various other claims by the plaintiffs, though if the case continues they’ll come up later. However, in closing out the ruling, the judge uses the President’s own words in the executive order against him. After the DOJ told the court that the WeChat ban was important for human rights because China heavily censors communications on WeChat… the judge more or less says “um, isn’t that what you’re now trying to do?” and points to the President’s own words about free speech in this very executive order:
Finally, at the hearing, the government cited a Washington Post article contending that a ban
of WeChat is a net positive for human rights: “WeChat it is a closed system that keeps its 1.2
billion users in a parallel universe where they can communicate as long as they don’t cross the
lines, and banning it might eventually strengthen the voices of the Chinese diaspora.” This is
another important point: the federal government — based on its foreign-policy and national security
interests —may not want to countenance (or reward) the Chinese government’s banning
apps outside of the Chinese government’s control and, more generally, censoring or punishing free
speech in China or abroad. But as the President said recently in Executive Order 13925,
Free speech is the bedrock of American democracy. Our Founding Fathers protected this
sacred right with the First Amendment to the Constitution. The freedom to express and
debate ideas is the foundation for all of our rights as a free people.
The growth of online platforms in recent years raises important questions about applying
the ideals of the First Amendment to modern communications technology. Today, many
Americans [including the plaintiffs and others in the U.S. WeChat community] follow the
news, stay in touch with friends and family, and share their views on current events
through social media and other online platforms. As a result, these platforms function in
many ways as a 21st century equivalent of the public square.
End result: the court puts a nationwide injunction saying that the Commerce Department cannot implement the WeChat ban it described last week.