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.

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Filed Under: 1st amendment, ban, china, donald trump, executive order, free speech, injunction, prior restraint
Companies: tencent, wechat


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  • icon
    That One Guy (profile), 21 Sep 2020 @ 11:31am

    'Curse my own words and standards used against me!'

    Well that's awkward, not only shooting down the ban but using Trump's own words against it by pointing out that it's just a titch hypocritical to call out the chinese government for censoring speech only to turn around and do the same thing.

    Nice to see a judge not buy the empty 'national security!' argument as well, hopefully they'll stick to their guns on that one and more judges will follow suit, because it is well past time for those two magic words to stop being an instant 'win the case' phrase.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Sep 2020 @ 1:05pm

    Remember too, that websites outside the United States are nto subject to the ban and someone could download the APK from an offshore website and then "side load" it into their phone.

    reply to this | link to this | view in chronology ]

    • icon
      Jeffrey Nonken (profile), 21 Sep 2020 @ 3:57pm

      Re:

      APK sideloading is the Lite Beer of solutions. Also requires users to be tech savvy. Also requires jailbreaking if it's an iThing. Also doesn't address the fact that this ban is racist, hypocritical, illegal and immoral, and offensive to anybody who actually believes in freedom.

      But sure, tell 'em to eat cake.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 22 Sep 2020 @ 2:14am

        Re: Re:

        "But sure, tell 'em to eat cake."

        Well, it's coming closer to the point where the advice of eating cake will have to yield the floor to pitchforks and torches.

        What is more concerning by far is that whenever a government issues legislation which is insane, impractical, unenforceable and unpopular the system of government as a whole loses more credibility in the nation in question. If a whole citizenry understands the concept of "legislation" to be partisan boilerplate meant to cater to vested interests and rarely, if ever, backed by moral or ethical high ground, then that nation is in trouble deep.

        Admittedly the republicans have been far more of a driving force there lately but both parties have certainly gone the extra mile to convince americans that nothing good ever comes from government.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Sep 2020 @ 1:35pm

    I have the feeling that some people are going to try and turn parts of that ruling into reasons they shouldn't be moderated or booted from Twitter of Facebook.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Sep 2020 @ 4:21pm

    So because China bans all other nessaging apps the US is obligated to allow the CCP's app?

    That's just rewarding China for acting shitty.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Sep 2020 @ 4:30pm

      Re:

      How does punishing people with families in China help convince the Chinese government to change its ways?

      reply to this | link to this | view in chronology ]

    • icon
      xyzzy (profile), 21 Sep 2020 @ 4:51pm

      Re:

      Ah, the old, because "China has an authoritarian regime, that bans a whole bunch of stuff, so the USA should become an authoritarian regime..." argument?

      How about, "the USA is a bastion of free speech that the rest of the world looks up to, which makes China look bad in comparison" approach? Oh, I forgot, Trump burnt that boat a while back.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Sep 2020 @ 5:55pm

        Re: Re:

        So China should be allowed an unfair advantage over other countries in the name of freedom?

        We can ban your shit because we're the bad guys, but since you're the good guys you're obligated to use ours. Why do I see that as only helping China?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 21 Sep 2020 @ 8:37pm

          Re: Re: Re:

          What unfair advantage?

          They follow local law, same as other business.

          And the other foreign can set up in China, if they choose to follow local law.

          You can't make a law for one, and not for other.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 22 Sep 2020 @ 2:31am

          Re: Re: Re:

          "We can ban your shit because we're the bad guys, but since you're the good guys you're obligated to use ours. Why do I see that as only helping China?"

          Because the alternative is you becoming China?

          Are you trying to tell people that since <country X> does not respect the US constitution there's no reason for the US to do so either? THAT is your argument?

          Tell me, when did americans choose to flush principle down the toilet out of sheer convenience?

          Of course an unscrupulous nation will ignore the rules. That's always counterweighted by the scrupulous nation which has rules actually being backed by their citizenry and a robust system which neither fears nor favors.

          You want to beat China at their own game, feel free to try. You lose all moral high ground, the goodwill of the international community, and eventually sink to the point where China and Russia take over the US arbitration role since, frankly, people will trust you less than they trust even China or Russia, neither of which has the habit of betraying or disparaging their own allies.

          reply to this | link to this | view in chronology ]

          • icon
            Tanner Andrews (profile), 24 Sep 2020 @ 10:59pm

            Re: Re: Re: Re:

            Tell me, when did americans choose to flush principle down the toilet out of sheer convenience?

            Well, at least since Totten v. United States, 92 U.S. 105 (1875).

            reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 21 Sep 2020 @ 10:07pm

      Re:

      We have a 1st Amendment.

      Your response is to stoop to the level of China and ignore our own 1st Amendment? Brilliant.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 22 Sep 2020 @ 2:21am

      Re:

      "So because China bans all other nessaging apps the US is obligated to allow the CCP's app? "

      Because the alternative is for the US to emulate China.

      I'm afraid the proper response to criminals and rogues has never been to point a finger and say; "If they don't want to respect civil rights then we don't have to either".

      That's the argument of a child throwing a tantrum that the parents of the bully next door are holding their child to lower standards of behavior than your own.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 22 Sep 2020 @ 8:08am

        'The law protects (accused) crooks, we should ignore it too!'

        That's the argument of a child throwing a tantrum that the parents of the bully next door are holding their child to lower standards of behavior than your own.

        Unfortunately it's also the argument for numerous government agencies and 'law enforcement', one that works far more than it should.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 23 Sep 2020 @ 7:00am

          Re: 'The law protects (accused) crooks, we should ignore it too!

          "...Unfortunately it's also the argument for numerous government agencies and 'law enforcement', one that works far more than it should."

          The last time this world saw a nation governed primarily by entitled man-children was in the last days of the Roman Empire. Nothing new under the sun, I guess, but of all the governments through history to emulate...

          I wouldn't be surprised if Trump developed a hankering for the good old early days of his WWF cameo inserts and started beating up drugged wrestlers on camera in an emulation of old Commodus just to show how "tough" he is...

          reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 22 Sep 2020 @ 4:26am

      How does it feel to hate the Constitution of the United States more than even Donald Trump does?

      reply to this | link to this | view in chronology ]

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