Trump’s WeChat ‘ban’ is unconstitutional. A new lawsuit shows why

On the evening of August 6, 2020, my WeChat account blew up as contacts started sharing  apocalyptic sentiments regarding the fate of WeChat. A few hours earlier, President Trump had signed an executive order banning companies and individuals from making “any transaction” related to the app. Like many members of the Chinese diaspora, I depend on WeChat exclusively to communicate with family, friends, and colleagues in China, as it is one of the few mobile applications accessible both in and outside of China. If the app is shut down completely in the U.S. — as it has been in India — my one-year-old won’t be able to video chat with my 90-year-old grandmother in China.

The only thing is: A ban is highly unlikely. Let me explain.

Trump’s recent attack follows a series of hostile and punitive actions taken by his administration against the Chinese in the 2020 election cycle: using racist terms to refer to COVID-19, curtailing Peace Corps and Fulbright exchanges, shutting down the Chinese consulate in Houston on scant 72-hour notice, and threatening to ban all Chinese Communist Party (CCP) members and their families from travel to the U.S.

This disconcerting pattern, besides inciting racial animus against Chinese, has legal significance. By singling out an app primarily used by people of Chinese descent, Trump’s order is likely to contain a “suspect classification” based on race, ethnicity, nationality, national origin, and alienage, which makes the ban subject to strict scrutiny, an extremely high standard of judicial review. The ban is likely to violate equal protection under the Due Process Clause in the Fifth Amendment. WeChat users can simultaneously invoke all activities guaranteed in the First Amendment: freedom of speech, freedom of the press, freedom of association, petitioning the government and religious freedom — so the WeChat ban violates that as well.

In other words, Trump has no chance in court. Recently, a nonprofit group formed by five Chinese-American attorneys, the U.S. WeChat Users Alliance (USWUA), has filed a lawsuit in a San Francisco federal court against President Trump and Secretary of Commerce Mr. Wilbur Ross to block the executive order. (Disclosure: the author is working with USWUA on this matter on a pro bono basis.)

The legal arguments seek to show that the WeChat ban regulates speech in a manner that is content-based, rather than content neutral — a distinction that often determines constitutionality in such cases. For content-based executive action, the most stringent judicial review standard applies.

The executive order alludes to the fact that WeChat censors content, which may benefit the Chinese Communist Party in disinformation campaigns. This allegation suggests that the order bans WeChat precisely because it is primarily used by the Chinese-speaking community (most of WeChat’s content is in Chinese). Singling out a particular group is prohibited by law. Many Chinese-owned businesses in the U.S. use WeChat to place online advertisements, which counts as commercial speech protected by the First Amendment. Voters engage in protected political speech by organizing political campaigns, making donations, and creating campaign literature on WeChat:  Andrew Yang, the first Chinese-American Democratic presidential candidate, organized with the platform in his recent campaign. (Incidentally, the app also helped Donald Trump in 2016.) The Chinese immigrant community uses WeChat to exercise religious freedom by organizing Bible study groups and worship services. WeChat public account owners in the United States create social commentaries, personal essays on U.S.-China relations, and other original content — all protected speech under the First Amendment.

The WeChat ban also violates Americans’ First Amendment right to receive foreign speech. Justice Thurgood Marshall referred to the right to receive information and ideas as the other side of the coin in the right to speak. By virtue of the Constitution, content consumers in the U.S. are just as free to be subjected to foreign disinformation campaigns as to domestic ones such as those prevalent on Facebook and Twitter.

Some legal experts also consider the categorical ban content-based because the app itself is arguably “content”: Whatever we think of the practice, Tencent expresses its views by creating and implementing policies on whether and how to post user-generated content. This creates a curated opinion space, which Trump’s ban would single out to eliminate from the U.S. media environment.

To survive the strict scrutiny challenge, the government must prove that the order is “narrowly tailored” and is the “least restrictive means” to protect national security.

The USWUA lawsuit alleges that WeChat is irreplaceable in terms of its full spectrum functionality for the global Chinese diaspora — and banning it would be anything but narrow or “least restrictive.” According to the complaint, WeChat is the only “super-app” with a Chinese interface specifically designed for Chinese speakers. Forty-one percent of the Chinese population in the U.S. are non-English proficient, and many depend on WeChat exclusively to communicate, especially during the COVID-19 pandemic; there are no other apps with the same or similar functions. This is an important legal argument because it suggests that an overly broad ban of an irreplaceable medium will cause irreparable harm, which justifies injunction relief.

Trump’s order also constitutes an unusual application of the International Emergency Economic Powers Act (IEEPA), which provides the president sweeping authority to take economic measures against transactions that pose an “undue” or “unacceptable” risk to national security by a “foreign adversary.” This may be an tough point for USWUA to win, because the court tends to give great deference to the executive branch’s national security justification. Nevertheless, the Trump administration has offered little evidence to substantiate its assertion that WeChat comprises an “unacceptable risk” to U.S. national security.

One of the order’s most problematic aspects is its undefined ban on “transactions” related to WeChat. Even seasoned law practitioners are at a loss on how to advise their clients, since no one knows what “transactions” are prohibited until the Commerce Department issues specific guidelines. Is sending a text a transaction? Posting content?  Downloading the app? The vague wording not only creates uncertainties and disruption to individuals and businesses involved in U.S.-China relations, but according to the lawsuit, the ambiguity itself has a “chilling effect” that will inhibit and discourage legitimate exercise of free speech. Nor is it clear how the Commerce Department will monitor and enforce the prohibition. It is worth noting that the Commerce Department’s authority to identify prohibited transactions is itself legally limited: An executive order under the IEEPA shall not place any restrictions “directly or indirectly” on “information or informational materials” — which would seem to preclude using the IEEPA to ban WeChat content. One of the goals of the lawsuit is to have the Commerce Department limit the scope of the prohibited “transactions” related to WeChat.

Regarding the well-known risks of using WeChat, the USWUA draws an analogy: if there are bugs in your house, you call an exterminator. You don’t burn down the house. Trump is prone to burn-down-the-house policies, of course, but previous excessive measures by his administration have been successfully challenged in court. In July, the Trump administration rescinded its directive barring international students from remaining in the U.S. to take online classes exclusively, after Harvard and MIT challenged the directive in court as “arbitrary and capricious.”

I came to the U.S. from Beijing to study law. One of the most empowering things I have learned is that an individual can challenge the all-powerful United States government in a legal proceeding. And if she can convince the court that she is right on the law, as Chief Justice John Roberts put it, “all that power and might would recede in deference to the rule of law.” Trump’s order alleges that WeChat allows “the Chinese Communist Party a mechanism for keeping tabs on Chinese citizens who may be enjoying the benefits of a free society for the first time in their lives.” The irony is that President Trump hopes to address the purported threat through a measure that itself impinges on freedoms with all the hallmarks of the CCP’s own policy: a national ban on foreign media, depriving individuals their right to make a free choice to balance risk versus convenience. There could be no better demonstration of the greatness of the U.S. Constitution and legal system than for it to protect our right to use a Chinese communications app against an overreaching American president.

Song Yi is an attorney based in Washington, D.C. She is licensed to practice law in the United States and China.