Expert expects WeChat ban to lose in court

Trump's executive order will likely be ruled a violation of the First Amendment

As a federal appeals court considers WeChat's lawsuit against the Trump administration's ban on the social media app, a leading US constitutional law expert said the action "clearly" violates the First Amendment and that the court will rule against the president.

"It's harder to imagine a clearer violation of the First Amendment "than entirely shutting down media for communication, said University of California, Berkeley law school dean Erwin Chemerinsky.

"Although presidents have broad authority with regard to regulating international trade, no president in history has ever tried to use this authority or any other power to shut down a medium of communication," said Chemerinsky, who submitted a declaration in the litigation indicating that the ban's basis violates the First Amendment.

The Department of Justice has filed an appeal with the 9th Circuit Court of Appeals, seeking to overturn and stay a preliminary injunction ordered by a district court judge in San Francisco on Sept 20.

The lower court found that the WeChat ban raised serious questions under the First Amendment and issued a temporary injunction, suspending the enforcement of the ban as provided by President Donald Trump's executive order on Aug 6 and the rule issued by the Commerce Department on Sept 18.

Plaintiffs opposing the government's motion argue that its claims of harm "ring hollow", while a stay would "immediately cause irreparable harm to them and to the ability of millions of Chinese Americans to communicate during the global pandemic".

Chemerinsky said that the Supreme Court generally sides with presidents when it comes to matters involving foreign relations, such as the administration's travel ban on several predominantly Muslim countries, where Trump issued the executive order and the Supreme Court ultimately agreed with him. But he said it was a "misguided and tragic decision".

"Even having all of that in mind, I think that here the courts are going to rule against President Trump on First Amendment grounds, and that's what the district courts have done so far," he said.

Chemerinsky argued that many doctrines under the First Amendment, including the prohibition of prior restraint, the unconstitutionality of limits on restricting people in speech and receiving information, and the special protection for the internet and social media, have made it clear that Trump's executive order violates the US Constitution.

A prior restraint on speech is a government action that stops speech before it occurs, he said. A prior restraint is unconstitutional. For example, if a court were to issue an injunction stopping a news story from being published, it would be prior restraint, he explained.

"There is no doubt that President Trump's executive orders are prior restraints."

Freedom of speech is not only the right to speak but also to receive information, said Chemerinsky.

Therefore, a second reason the executive order violates the First Amendment is that it restricts the ability of people to speak and to receive information, because WeChat's more than 3 million subscribers use the app to not only communicate to others but also to receive messages, he said.

He also noted that the government can't discriminate among speakers.

"The government can't say these speakers are favored, and they'll be allowed to go forward, but these speakers aren't," Chemerinsky said.

"I think that the effect of the ban on TikTok and WeChat is very much speaker based."

Alluding to several Supreme Court cases pertinent to First Amendment violations, he stressed that, "Clearly, the government should not be able to restrict these media, unless the government has an interest of the highest order."

But in the cases of TikTok and WeChat, there is no "compelling interest", "no showing that this is necessary for national security "and "no showing there's no other way to achieve the government's goal", Chemerinsky said.

liazhu@chinadailyusa.com