U.S. WeChat Users Alliance v. Trump

Background

The plaintiffs were U.S. WeChat users, including U.S. WeChat Users Alliance, a nonprofit formed to challenge the WeChat executive order, and individual and business users. They challenged Executive Order 13943, which President Trump issued on August 6, 2020. The order directed the Commerce Secretary to identify transactions related to WeChat that would be prohibited beginning 45 days after the order.

On September 18, 2020, the Secretary identified seven categories of prohibited transactions. Transactions 1 through 6 covered providing app-store distribution or updates, internet hosting, content-delivery services, certain internet transit or peering services, payment and fund-transfer services through WeChat, and using WeChat’s code, functions, or services in software or services. Transaction 7 concerned other related transactions that could be identified later. The court noted that the identified prohibitions applied to business-to-business transactions and that other transactions with Tencent Holdings Ltd. or its subsidiaries were permitted unless separately prohibited or contrary to law.

Plaintiffs’ claims and the government’s position

The plaintiffs claimed that the restrictions violated the First Amendment and Fifth Amendment, the Religious Freedom Restoration Act, the International Emergency Economic Powers Act, and the Administrative Procedure Act. They argued that effectively banning WeChat would eliminate a public-square-like platform and a primary or only means of communication for many Chinese-speaking and Chinese-American users in the United States. Their evidence described WeChat’s use for personal, political, business, charitable, religious, medical-related, and community activities.

The government argued that the restrictions were based on national-security concerns involving China, Tencent, and WeChat. It contended that the plaintiffs were unlikely to succeed on their claims and had not established irreparable harm or that the balance of equities favored an injunction.

Preliminary-injunction standard

A preliminary injunction is temporary relief issued before final judgment. The court applied the four-part standard requiring consideration of likely success on the merits, likely immediate and irreparable harm without an injunction, the balance of equities, and the public interest. The court also recognized that relief may be available when a plaintiff raises serious questions about the merits, the balance of hardships tips sharply in the plaintiff’s favor, and the other requirements are satisfied.

First Amendment analysis

The court found that the plaintiffs had shown serious questions about their First Amendment claim. On the record before it, the prohibited transactions would effectively eliminate the plaintiffs’ key communication platform, slow or eliminate discourse, and operate like censorship or a prior restraint on speech. The plaintiffs’ declarations showed that there were no viable substitute platforms for many users because other platforms were blocked in China, lacked WeChat’s connection to Chinese-speaking communities, or were inaccessible to users with limited English proficiency.

The court also concluded that the plaintiffs raised serious questions even under the government’s view that the restrictions were content-neutral time, place, and manner restrictions. Such restrictions must be narrowly tailored to serve a significant government interest and must leave adequate alternative channels for communication. The court accepted that the government had a significant national-security interest, but found that it had provided little evidence that an effective ban on WeChat for all U.S. users addressed that interest. The court identified less sweeping alternatives, including restricting WeChat on government devices or taking other data-security measures. It concluded that the restrictions burdened substantially more speech than necessary, particularly because users lacked substitute communication channels.

Other claims

The court did not conclude at that stage that the plaintiffs were likely to succeed on their claim that the President and Secretary exceeded their authority under the International Emergency Economic Powers Act. The record and arguments did not allow the court to decide that eliminating support for WeChat, including upgrades or reduced internet services, prohibited personal communication within the statute’s limits.

The court likewise did not conclude that the plaintiffs were likely to succeed on their Administrative Procedure Act claim. To the extent that claim was based on the Secretary exceeding authority under the International Emergency Economic Powers Act, the court relied on its analysis of that issue. To the extent it was based on the Secretary’s failure to use notice-and-comment rulemaking, the briefing was insufficient for the court to evaluate the claim’s legal sufficiency.

The court found that the plaintiffs were unlikely to succeed on the Fifth Amendment vagueness claim insofar as it relied on later media reports’ interpretations of the identified prohibitions. The court held that the claim concerning the Secretary’s possible future identification of additional transactions was not ripe, meaning the issue was not sufficiently developed for judicial decision.

Other preliminary-injunction factors and scope of relief

The court found irreparable harm because the restrictions threatened to eliminate the plaintiffs’ communication platform. It found that the balance of equities favored the plaintiffs because an injunction would maintain the status quo, while allowing the ban to take effect would eliminate meaningful access to communication for their community. The court also found that the public interest favored protecting the plaintiffs’ constitutional rights, while recognizing the government’s significant national-security and foreign-policy concerns.

The court determined that nationwide relief was necessary because the plaintiffs lived in four states, the U.S. WeChat Users Alliance included users throughout the United States, and WeChat operated as a network that could not be adequately protected by an injunction limited to less than the country.

Disposition

The court granted the plaintiffs’ motion for a nationwide preliminary injunction against implementation of Executive Order 13943, limited to the Secretary of Commerce’s Identification of Prohibited Transactions 1 through 6. The order did not prevent the Secretary from reconsidering those decisions or identifying additional transactions under Transaction 7. The order disposed of ECF Nos. 17 and 48.