Constitutional Challenges Brought by WeChat Users

Posted by Wang, Yi on August 26, 2020

A group of WeChat users, allegedly unaffiliated with Tencent/WeChat, are suing the Trump administration concerning the President’s executive order banning transactions with WeChat, as we briefed and continue to monitor closely. Interestingly, the plaintiffs include both non-profit representing certain WeChat users as well as Chinese Americans, and Chinese citizens with valid visas in the US. The complainants petition for injunctive relief at US District Court of Northern California, San Francisco Division on August 21, 2020.

The complaint describes WeChat as not only a social media but also a platform where “users organize around political causes“ as well as religious activities, and “vital” to combat COVID-19.

It further argues that the national emergency power the Trump administration relies on in the WeChat ban prescribes limits such as prohibition on “any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value.“ (Section 1702(b) of the IEEPA)

The complaint questions the “inflammatory statements by the Trump administration as “inciting racial animus against persons of Chinese descent for political gain” by “blaming the coronavirus pandemic on China.“

The complaint also cited comments by Ambassador Charlene Barshefsky who views the WeChat ban has “left US companies and many others looking to the Trump Administration for additional clarity.”

The complaint asks for the following relief:

• First Amendment right concerning freedom of speech, religion, expression, the press, assembly, and petitioning the government;

• Discrimination by the executive actions against the ideas and viewpoints of WeChat users;

• Ongoing harms with both incarceration and monetary penalties and chilling effects by overly broad and expansive executive action over the protected expressive and associative rights under the First Amendment;

• Violation of Due Process Clause of the Fifth Amendment that prohibits the state’s denial of equal protection on the basis of race and origin especially “ people of Chinese and/or Chinese American ancestry;”

• Ultra Vires (abuse) of the national emergency power.

We will closely monitor the development of this case and welcome your comments or questions.