Judge Issues Preliminary Injunction Saying That The US Cannot Block WeChat, Says The Ban Raises 1st Amendment Concerns
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 FirstAmendment claim that the Secretary's prohibited transactions effectively eliminate the plaintiffs'key platform for communication, slow or eliminate discourse, and are the equivalent of censorshipof 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 permitcommunication. But the plaintiffs establish through declarations that there are no viablesubstitute platforms or apps for the Chinese-speaking and Chinese-American community. Thegovernment counters that shutting down WeChat does not foreclose communications for theplaintiffs, pointing to several declarations showing the plaintiffs' efforts to switch to newplatforms or apps. But the plaintiffs' evidence reflects that WeChat is effectively the only meansof communication for many in the community, not only because China bans other apps, but alsobecause 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 Amendmentclaim even if - as the government contends - the Secretary's identification of prohibitedtransactions (1) is a content-neutral regulation, (2) does not reflect the government's preference oraversion 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 asignificant governmental interest unrelated to the content of the speech, and (3) leaves openadequate channels for communication.... To benarrowly tailored, the restriction must not burden substantially more speech than is necessary tofurther the government's legitimate interests."... Unlike a content-basedrestriction of speech, it need not be the least restrictive or least intrusive means of serving thegovernments interests. But the government still may not regulate expression in such a manner thata 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 thisrecord - while the government has established that China's activities raise significant nationalsecurityconcerns - 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 acomplete ban, such as barring WeChat from government devices, as Australia has done, or takingother 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 banof WeChat is a net positive for human rights: WeChat it is a closed system that keeps its 1.2billion users in a parallel universe where they can communicate as long as they don't cross thelines, and banning it might eventually strengthen the voices of the Chinese diaspora." This isanother important point: the federal government - based on its foreign-policy and national securityinterests -may not want to countenance (or reward) the Chinese government's banningapps outside of the Chinese government's control and, more generally, censoring or punishing freespeech 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 thissacred right with the First Amendment to the Constitution. The freedom to express anddebate 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 applyingthe ideals of the First Amendment to modern communications technology. Today, manyAmericans [including the plaintiffs and others in the U.S. WeChat community] follow thenews, stay in touch with friends and family, and share their views on current eventsthrough social media and other online platforms. As a result, these platforms function inmany 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.