TikTok, WeChat bans on hold due to deal, injunction

President Donald Trump clearly views the First Amendment as the "Worst Amendment," at least the free press and free speech parts. Almost immediately after being inaugurated, Trump began to erode freedom of the press, with antics such as revoking the press credentials of reporters whose coverage he didn't like. More recently, he seems intent on erasing the First Amendment where it counts most -- free speech on social media and technology platforms.

From the first days of his presidency, Trump began using Twitter as a substitute for press conferences and official White House communications. He must have forgotten that, unlike press releases, Twitter is a two-way communications medium. In early 2017, after critics began posting responses critical of his presidency and policies, Trump blocked seven people from the @realDonaldTrump Twitter account. The Knight Institute filed a lawsuit in 2017 alleging that blocking Twitter users critical of the government violated the First Amendment, and won. Knight First Amendment Inst. at Columbia Univ. v. Trump, 1:17-cv-5205 (S.D.N.Y.). The decision was upheld 3-0 by the 2nd U.S. Circuit Court of Appeals (18-1691).

Undeterred, Trump and his administration continued to block two categories of users from the @realDonaldTrump Twitter account -- users who cannot identify the specific tweet that prompted their blocking, and those blocked before Trump's inauguration. In July, the Knight Institute filed another lawsuit alleging continuing First Amendment violations. Knight First Amendment Inst. at Columbia Univ v. Trump, 1:20-cv-05958 (S.D.N.Y.).

On May 28, Trump signed the "Executive Order on Preventing Online Censorship," which was a thinly veiled effort to do the opposite -- censor criticism of him. Trump took aim at social platforms after Twitter flagged two of his tweets as potentially misleading and included a fact checking link. The flagged tweets that unleashed Trump's ire against Twitter stated falsely that mail-in ballots would lead to widespread voter fraud. Twitter included a statement beneath each tweet, "Get the facts about mail-in ballots," and provided a link to a fact check page with further links and summaries of news articles debunking the assertion.

In response, Trump's executive order sought to weaken or eliminate Section 230 of the 1996 Communications Decency Act, which gives operators of online platforms broad immunity from liability for the third-party content that appears on those platforms.

But why aim low by just blocking certain people or punishing Twitter for flagging inaccurate claims? Trump has now wielded the First Amendment eraser on his presidential pen to outright ban Tiktok and WeChat social media application used by millions worldwide. Executive Order 13942 (TikTok) and Executive Order 13943 (WeChat).

The U.S. Department of Commerce, tasked with enforcing the executive orders, recently announced that it will delay the ban on TikTok due to "positive developments" which appears to be a reference to ongoing negotiations by Oracle and Walmart to purchase TikTok. But pressed forward with a ban on transactions including as distribution, update, maintenance or optimization of the WeChat app, transfer of money using the app, and internet-hosting, content-delivery, and other internet-transit services that enable the functioning in the United States. A day before the ban would have taken effect on Sept. 22, U.S. District Judge Laurel Beeler issued a preliminary injunction preventing the ban from being implemented.

The injunction stems from a lawsuit filed in the U.S. District Court for the Northern District of California. U.S. WeChat Users Alliance, et al. v. Trump, 3:20-cv-05910-LB. The group argued that WeChat serves as a virtual public square for Chinese-speaking and Chinese Americans to communicate with friends and relatives in China. They argued that the ban operates as a prior restraint on their speech because there is no practical alternative for them to communicate because the Chinese government blocks all other social media apps and because Chinese speakers with limited English proficiency have no options other than WeChat.

The government argued that the WeChat app poses a national security threat because it collects sensitive personal data on U.S. citizens. The executive order also asserted that WeChat "censors content that the Chinese Communist Party deems politically sensitive" and may "be used for disinformation campaigns that benefit the Chinese Communist Party." This, of course, sounds exactly like what Trump attempted to accomplish by blocking Twitter critics. The real purpose of the ban on WeChat appears to be punishment of China as part of an escalating trade war and a Trump campaign effort to bolster support for his re-election.

While the government provided some evidence that China's activities raise significant national security concerns, the court said there was "scant evidence" that the ban on WeChat was necessary to address those concerns. The plaintiffs noted less drastic alternatives such as barring WeChat from government devices, as Australia has done, or taking other steps to address data security.

Citing to McCullen v. Coakley, 573 U.S 464, 486 (2014), the court noted that the government may not regulate expression in such a manner that a substantial portion of the burden on speech does not advance its goals. The court held it is well established that WeChat users would be irreparably harmed if their ability to communicate was disrupted even for a short period. Elrod v. Burns, 427 U.S. 347, 373 (1976)

Four years of consistently hostile conduct toward free press and free speech make clear that the Trump administration will stop at nothing to stop dissent or to achieve political goals. So far Trump has carried out his attacks on the First Amendment in plain sight. A far more sinister possibility exists, however. Electronic technologies can be manipulated behind the scenes by altering software or algorithms that skew or restrict certain messages or content. It will be almost impossible to get an injunction against an invisible effort to undermine the First Amendment. 