SAN FRANCISCO (CN) — A federal judge signaled Thursday that she will likely block an executive order banning China’s most popular social media app, WeChat, in the United States because it is unconstitutionally vague and could violate Americans’ free speech rights.
“I’m sympathetic to the anxiety that it creates for the people who are affected, and therein lies the vagueness concern which is really wrapped in a little bit that this is the only mode of communication for people,” U.S. Magistrate Judge Laurel Beeler said during a virtual court hearing.
More than 19 million Americans use WeChat, one of the few social media apps the Chinese government allows to operate within its borders, and which enables people in the U.S. to communicate with friends and relatives in China.
Citing national security concerns, President Donald Trump signed two executive orders on Aug. 6 calling for a ban on Chinese apps WeChat and TikTok to take effect within 45 days. The directive relies on presidential authority under the International Emergency Economic Powers Act, which enables the government to seek criminal penalties of up to 20 years in prison and $1 million fines against those who violate restrictions authorized under the law.
Commerce Secretary Wilbur Ross is expected to issue regulations for the social media apps by Sunday, the same the day the bans are scheduled to take effect.
Nonprofit group U.S. WeChat Users Alliance and others sued the Trump administration on Aug. 21, claiming the ban violates their constitutional rights and erodes a critical communication bridge between China and the U.S.
Appearing in Judge Beeler’s virtual courtroom Thursday, lawyers for the group asked for a preliminary injunction to block Trump’s executive order from taking effect.
“Millions will lose the ability to check in on their relatives here and in China,” the plaintiffs’ attorney Michael Bien of Rosen Bien Galvan & Grunfeld said.
But a Justice Department lawyer argued that WeChat users suffered no harm that would justify a preliminary injunction because the executive order hasn’t yet taken effect. Commerce Department rules defining what is a restricted “transaction” are expected to be announced on Sunday.
“Here we have an order that has no force or effect until the Commerce secretary makes his findings,” Justice Department lawyer Michael Drezner argued.
On Wednesday, the Justice Department told Beeler in a sworn statement that the Commerce Department does not plan to define the “use or downloading of the app to convey personal or business information between users” as a restricted transaction in its forthcoming regulations.
The plaintiffs say that assurance falls far short of addressing significant constitutional concerns related to the executive order. Other activities, such as using the app to store or manage data, could still be deemed a prohibited transaction under the new rules, they argue.
The University of Kansas banned the use of WeChat on its computers and campus network this week, citing its need to comply with the president’s mandate.
The plaintiffs say that shows the vague wording of the executive order has already had a detrimental impact on their First Amendment rights.
“It’s had a chilling effect just by being on the books,” Bien said.
Bien also insisted that national security concerns cited to justify banning WeChat were purely pretextual. The real reason was to distract from the administration’s poor response to the coronavirus pandemic and focus more attention on tensions between the U.S. and China, he argued.
“Our theory backed by evidence and uncontested is that the real reason behind this executive order is to bolster the campaign, bring hatred on China, blame China for the pandemic, and to distract from what actually happened,” Bien said.
Beeler said one aspect that especially concerned her was how rules restricting WeChat will take effect the same day the Commerce Department reveals what those rules are, giving those affected no time to contest them.
Representing the Justice Department, Drezner noted that some executive orders take effect immediately with no grace period. He further argued that people indirectly affected by an executive order, such as WeChat users, are not entitled to notice before rules become effective.
“I think what they’re saying is it could potentially in the future hurt us, but we’re not 100% sure,” Drezner said. “In that context, it’s not ripe.”
But Beeler suggested that millions of WeChat users being cut off from their primary method of communication with friends and loved ones could constitute concrete harm.
“The concern that your only mode of communication is going to be cut off on Sunday, therein lies the tension of your true concern of harm,” Beeler said.
After about an hour of debate, Beeler took the arguments under submission.
Another lawsuit is pending in Los Angeles Federal Court over the impending federal ban on the popular Chinese video-sharing app TikTok.