After a rare Saturday hearing, this weekend, United States Magistrate Judge Laurel Beeler entered an order enjoining President Trump’s so-called WeChat ban because it violates the First Amendment of the United States Constitution. A copy of the order is embedded below.
WeChat is a platform much like WhatsApp, LINE, Facebook Messenger, that allows for communication and other features such as sending payments. What is unique about WeChat, however, is that it is not blocked by the Chinese firewall. While users in China cannot use other popular communications apps (without a VPN), like Facebook or Twitter, because they are blocked by the firewall, they can and do use WeChat. Therefore, in the United States, WeChat is the primary vehicle for people to communicate with others in China: parents, grandparents, children, siblings, business partners, colleagues, friends, etc. WeChat also provides content, such as news, much of which is in Chinese languages, which makes WeChat a valuable platform for Chinese-speakers in the United States to stay informed. As the Court recognized in its order, “WeChat is irreplaceable for its users in the U.S., particularly in the Chinese-speaking and Chinese-American community.” Order, p. 4-5 (emphasis added).
On August 6, 2020, President Trump issued Executive Order 13943 to “Address[] the Threat Posed by WeChat,” stating that, 45 days after the date of the order, “any transaction that is related to WeChat by any person, or with respect to any property, subject to the jurisdiction of the United States, with Tencent Holdings Ltd. . . . or any subsidiary of that entity” would be “prohibited.” This extremely vaguely written Order also set the clock in motion for the Secretary of Commerce to “identify” the prohibited “transactions.”
On August 21, 2020, a group of WeChat users in the United States filed suit in the Northern District of California to enjoin Trump and his administration from carrying out this WeChat ban. They sued for violations of the First Amendment’s Freedom of Speech, Fifth Amendment’s Equal Protection and Due Process clauses, and for claims that the executive order exceeds the bounds of the president’s authority.
On September 18, 2020, the Secretary of Commerce published that “list.” The Court order (embedded below) quotes the list in its entirety. The Court held hearings on Sept. 17, 18, and 19, 2020. The Electronic Frontier Foundation’s Kurt Opsahl observed the September 19, 2020, hearing, and gave a good play-by-play via Twitter.
In a First-Amendment challenge, a government restriction on speech must survive a “strict scrutiny” analysis, or, in some other cases, a slightly lesser “intermediate scrutiny” analysis, or else it is unconstitutional.
A prior restraint on free speech is “a law, regulation or judicial order that suppresses speech—or provides for its suppression at the discretion of government officials—on the basis of the speech’s content and in advance of its actual expression.” Citizens United v. Schneiderman, 882 F.3d 374, 386, (2d Cir. 2018) (citation omitted). Prior restraints are presumptively unconstitutional and therefore subject to the highest level of scrutiny. See, e.g., Pittsburgh Press v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973); New York Times Co. v. U.S., 403 U.S. 713, 714 (1971); Berndt v. Cal. Dept. of Corrections, 2004 WL 1774227 (N.D. Cal. 2004).
If, however, the potentially violating regulation is a content-neutral regulation and does not reflect the government’s preference or aversion to the speech, it is subject to “intermediate scrutiny.” A government action “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.” Order, p. 17 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Pac. Coast Horseshoeing Sch., Inc. v. Kirchmeyer, 961 F.3d 1062, 1068 (9th Cir. 2020).)
After listening to arguments of the parties and reviewing their briefs, the Court, in its order, wrote: “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 national- security concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns.” Order, p. 18. The court evaluated and distinguished cases presented by the government and found, “The speech interests at stake in these cases — a credit agency’s sale of consumer data and targeting unlawful copying — are not equivalent to the denial of speech that attends the complete ban of WeChat for the Chinese-American and Chinese-speaking U.S. users. On this limited record, the prohibited transactions burden substantially more speech than is necessary to serve the government’s significant interest in national security, especially given the lack of substitute channels for communication.” Order, p. 18.
Finding that the WeChat users established irreparable harm, which is “the elimination of their platform for communication,” and that the WeChat ban did not pass even intermediate scrutiny, the Court granted a preliminary injunction. Perhaps most brilliant in the order, however, is the Court quoting President Trump’s own executive order against him: “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.
Order, p. 21.
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