Update #2 — September 18, 2020 — Attorneys for USWUA have filed Plaintiff’s Renewed Motion for Preliminary Injunction, along with a supporting Declaration. Defendant’s opposition is here and Plaintiff’s reply here. Plaintiff’s also filed an Amended Complaint. Tomorrow’s hearing is at 1:30pm (Pacific) – click here to attend via Zoom.
Update — September 18, 2020 — In advance of today’s 11:45am hearing, plaintiffs filed USWUA’s Response to Defendant’s Notice re Implementation of Executive Order, 09-18-2020, along with this declaration. The government’s filing is here.
Update — September 16, 2020 — Late this afternoon USWUA filed its response to the government’s Notice re Implementation of Executive Order that had been filed with the court earlier in the day. The USWUA filing is here: Plaintiff’s Response to Government Notice re Implementation of Executive Order The Court’s hearing on the Motion for Preliminary Injunction will take place as scheduled at 9:30am (Pacific) on Thursday, September 17. To attend the virtual hearing click here.
Update — September 12, 2020 — On Friday, September 11, attorneys for the U.S. WeChat Users Alliance (USWUA) filed their Reply Brief in Support of Motion for Preliminary Injunction. The WeChat ban in the U.S. would go into effect on September 20 – the Court’s hearing on the Motion for Preliminary Injunction is scheduled for September 17. The declaration of Michael Bien in support of Plainiff’s Reply is available here. Defendant’s Opposition to Motion for Preliminary Injunction filed on September 8 is linked here. Defendant’s exhibits in support of the Opposition are available here.
Update — August 29, 2020 — On Friday evening, August 28, attorneys for the U.S. WeChat Users Alliance (USWUA) filed a Motion for Preliminary Injunction in federal court in San Francisco in USWUA v. Trump asking that the Court enjoin the Trump Administration from enforcing the President’s Executive Order (EO) that would prohibit or limit the use of WeChat in the U.S. The Motion also asks the Court to preclude any civil or criminal penalties for violations of the EO until 60 days after a definition of “transactions” under the EO has been publicly promulgated. The WeChat ban in the U.S. would go into effect on September 20 – the Court’s hearing on the Motion for Preliminary Injunction is scheduled for September 17. Plaintiff’s Proposed Order and Declarations from experts and users supporting the Motion are available here.
Leading U.S. constitutional scholar Erwin Chemerinsky, Dean of the University of California, Berkeley School of Law, in a Declaration filed last night in support of the USWUA Motion, states: “The Executive Order’s prohibition on the use of WeChat is the equivalent of a complete ban of a newspaper, a TV channel, or a website used by the tens of millions of U.S. citizens who regularly use the WeChat platform to communicate ideas and to conduct business every day in the United States. Historically, the government has repeatedly attempted to censor or suppress certain ‘offensive’ content on newspapers or other media. But never has the government tried to shut down entirely a public forum used by millions of Americans. Such a broad restriction on speech, as is done by this Executive Order, is unprecedented in the modern history of this country. The public evidence gathered in the Complaint also strongly suggests that the Executive Order is motivated by anti-Chinese animus, which suggests that the Executive Order violates the Equal Protection Clause of the Fifth Amendment. I am also deeply troubled by the fact that a violation of the Executive Order can result in civil and criminal penalties. I am unaware of any law in this country that criminalizes speech regardless of its content or the speakers’ intent. The chilling effect on the exercise of free speech caused by the Executive Order is profound and constitutionally unsupportable.”
August 21, 2020 — San Francisco, California –– Today, the U.S. WeChat Users Alliance (USWUA), a non-profit organization, and one corporate and five individual plaintiffs, will file a federal action against President Donald Trump and Secretary of Commerce, Wilbur Ross, in the U.S. District Court, Northern District of California. The lawsuit seeks to prevent the President’s Executive Order issued on August 6, 2020 from banning the use of WeChat in the United States by individual users, businesses and groups. The complaint is here: Complaint for Declaratory and Injunctive Relief, 08-21-2020
Michael W. Bien of Rosen Bien Galvan & Grunfeld LLP, along with Keliang “Clay” Zhu, of the DeHeng Law Offices, and Angus Ni, of AFN Law, are the primary attorneys representing the plaintiffs.
Selected media coverage of the lawsuit is available on the USWUA website here.
USWUA argues in the lawsuit that this unprecedented and overreaching Executive Order violates the First Amendment, the Equal Protection Clause, and the Due Process Clause of the U.S. Constitution, as well as the Religious Freedom Restoration Act (RFRA). WeChat is used widely by millions of Chinese Americans to talk to families and friends, to discuss and engage in political activities in the U.S., to organize and participate in charitable, religious and cultural programs, and to develop and communicate with business clients across the world. These communications on WeChat have no bearing on the national security concern as claimed by the President. The restrictions imposed by the Executive Order also burden the free exercise of religion and thus violate RFRA, as well as the First Amendment.
“There are critical Constitutional protections at stake in this case. Chinese Americans use and depend on WeChat as their critical mode of communication, personally and professionally, every day,” said Michael Bien, co-counsel for USWUA in the suit. “Trump’s potential ban of WeChat raises important Constitutional issues not only for my clients, but for all Americans. What would be the reaction if the President banned, shut down or criminalized the use of Zoom, Messenger, Facebook, YouTube, Twitter or Instagram by invoking a vague and undefined ‘national security’ problem since they also collect and analyze user data?”
“Let’s clear about one thing,” said Keliang “Clay” Zhu, co-counsel for USWUA. “The target of the WeChat ban is Chinese Americans in this country because it is primarily used by Chinese Americans. Given the unique importance of WeChat to the millions of Chinese Americans, the Executive Order’s discriminatory impact is unmistakable. Every race and ethnicity should be treated equally in this country, but not according to this Executive Order.”
In the complaint USWUA argues that WeChat is primarily used by Chinese Americans, and its ban will have a disparate impact on them. WeChat is the main messaging app available in both the United States and China and has facilitated the development of widespread networks of communication between Chinese Americans and Chinese nationals. The Executive Order’s discriminatory effects upon Chinese Americans are real and unconstitutional.
The complaint alleges that the President has exceeded his authority because the International Emergency Economic Powers Act (IEEPA) does not allow the President to prohibit any communication, directly or indirectly. The Executive Order aims precisely at severing the communications of millions of people in this country.
The Executive Order will take effect on September 20, leaving WeChat users only 30 days to use the app legally. The threat of civil sanctions of $250,000 and criminal sanctions of $1 million and 20 years in prison for violations of the Executive Order has already caused fear, disruption and imposed costs on the plaintiffs as well as all WeChat users in the United States. Due to the imminent harm posed by the Order, plaintiffs will be promptly seeking immediate injunctive relief to delay the effective date of the Order and suspend the Order’s enforcement pending a final determination of the lawfulness of the Executive Order.
Ms. Ying Cao on behalf of USWUA said: “We fight for ordinary WeChat users in the US who only use WeChat to communicate with their family and friends, such as chatting and browsing through their posts, grabbing red envelopes of insignificant changes, and tirelessly engaging in ‘meme wars’ producing some of the best artistic expressions I’ve ever seen. It is unfathomable that all these activities may threaten the national security. WeChat is an imperfect app, but issues associated with WeChat can be resolved without a total ban.”
U.S. WeChat Users Alliance, or USWUA, is a non-profit corporation registered in the State of New Jersey. Other than representing ordinary WeChat users in the U.S., USWUA has no connection to any political party, government, or Tencent Holdings or any of its affiliates. More information about USWUA and the legal action can be found on the official USWUA website: www.uswua.org.
This lawsuit represents the best chance to defeat this Executive Order and to preserve everyone’s right to continue using WeChat. There is no time to waste, and the odds are against us. Our chance of winning will increase only if we can receive your generous support. Since the launch of the USWUA, we have received tremendous support from the general public as well as press attention. To be able to continue this important fight, we urgently need everyone’s contributions. Donations can be made to firstname.lastname@example.org through PayPal, Venmo, or Chase QuickPay/Zelle.
Ms. Ying Cao, Esq. email@example.com
Mr. Gang Yuan, Esq., firstname.lastname@example.org
Mr. Shengyang Wu, Esq., email@example.com