Constitutional expert believes appeal judges will cite free speech violation
As a court considers an appeal against a ban on the WeChat app in the United States, a constitutional law expert said the government's action "clearly" violates the First Amendment and that the appeals court will rule accordingly.
"It's harder to imagine a clearer violation of the First Amendment "than entirely shutting down media for communication," said Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, referring to an executive order by U.S. President Donald Trump against the social media app in August.
"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."
Chemerinsky submitted a declaration in the litigation indicating that the basis of the ban violates the First Amendment of the U.S. Constitution.
The plaintiffs, including the U.S. WeChat Users Alliance and other app users, argued that WeChat is irreplaceable for its users in the U.S., particularly in the Chinese-speaking and Chinese-American community.
To fight for the legal rights of all WeChat users in the country, USWUA, an NGO, sued the U.S. government over the ban. The lawsuit opened in court on Sept 17.
The U.S. 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 Trump's executive order on Aug 6 and a 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 pandemic".
'Misguided, tragic' decision
Chemerinsky said 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. Trump had issued an executive order for the ban and ultimately the Supreme Court 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 U.S. Constitution.
"There is no doubt that President Trump's executive orders are prior restraints," he said.
Freedom of speech is not only a right to speak, but also a right to receive information. Therefore, a second reason the executive order violates the First Amendment is its restriction on the ability of people to speak and to receive information. 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."
On Aug 14, Trump signed another executive order that forces Byte-Dance, the Chinese owner of TikTok, to sell or spin off its U.S. business within 90 days. TikTok had filed a lawsuit against the Trump administration, challenging the legality and constitutionality of the Aug 6 executive order. A partnership arrangement with U.S. software company Oracle is now being pursued.
By alluding to several Supreme Court cases pertinent to First Amendment violations, Chemerinsky 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 ways to achieve the government's goal", he said.
