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The WeChat Users Alliance v Trump hearing on the users' Motion on Preliminary Injunction is about to begin, before Magistrate Judge Laurel Beeler in the N.D. Cal. federal court. Link to stream here: https://www.cand.uscourts.gov/judges/beeler-laurel-lb/
Plaintiffs are users of WeChat, challenging the Trump ban on the popular Chinese app, as an "unprecedented prior restraint on protected speech, on the press, on the right to assemble and petition the government and the free exercise of religion."
Court appreciated the extra briefs, has a few clarification questions before getting to the First Amendment issues.
Clarified ban goes into effect 11:59 pm tomorrow (Sunday, 9/20).
Court asks about ban's effect on personal users. Order framed as not going after users, but makes using the app hard to work. Gov't say, yes, it prohibits b2b (app stores), but will be available for use for people who have it on phones.
Court notes Reg also bans any support from networks and infrastructure that enable the app, seems dubious that it won't effect users right away.
Gov't pushes back, wants to frame it as degrading the app only, over time. Court still seems skeptical, but gets govt concession that functionality will be worse.
Court asks about 'void for vagueness' argument, given that Reg identifies prohibited transactions and who it covers. Plaintiff counters by noting the confusion in the media and public, says clients are business, b2b limit still effects them.
Court looks at plain language of Reg, says it prohibits services that enable functions (i.e. users transfer money), but not those functions themselves.
Court seems to be looking for a better argument on 'void for vagueness.' This is where oral argument skills really come into play, suggests written brief didn't convince the court.
Court asks government if it is contesting whether there is an effect of speech, or just the level of scrutiny. The level of scrutiny is key to First Amendment arguments.
Court asks about gov't's national security interest, and the factual history behind the concern about China.
Court does not dispute the summary of concerns about China, they are familiar concepts to judge (former prosecutor). But suggests there is no narrow tailoring of the Reg, which First Amendment scrutiny would require.
Gov't responds that Plaintiffs were worried about criminal penalties, but the Reg is tailored because it does not threaten users criminally. (Reg reserves right to do that later).
Gov't wants to apply the intermediate scrutiny test, and says that no other formulation of the ban would address the national security concerns as well. Basically arguing that a total ban is as narrow you need.
This arg is not going well - Court says it a "tough time understanding how its narrowly tailored."
In 1A cases, there are three levels of scrutiny. Intermediate scrutiny, the 2d level, is being discussed. The other levels are rational basis (least rigorous) and strict scrutiny (most rigorous).
Plaintiffs argue for strict scrutiny, which is very hard for the government to succeed on.
Court is noting that the stage now is for a preliminary injunction where a key issue is the level of irreparable harm.
Court asking about plaintiffs who have clients who have difficulty with tech, and who provided evidence those people would not easily switch to another platform.
Court signals that the First Amendment is the key to its decision, suggest that the Admin Procedures Act claim will have to wait.
Gov't pushes back, saying that this is not a class action, so court need not care about the plaintiffs' clients tech troubles.
Gov't point 1, worry about what happens if they can't use WeChat is not irreparable harm.
Gov't Point 2 is that there are substitutes for WeChat, and it doesn't matter if they don't have the same functionality. Gov't takes a moment to note how China censors competitive apps, which is true, but maybe not the best argument for censoring WeChat.
The Court keeps going back to facts, and notes that at preliminary stage, now's not the time to dispute those facts - Ct can adjust the injunction as the facts develop.
Gov't can't imagine the First Amendment requires allow US citizens to allow foreign apps. Court: Yeah, but what about smartTVs, other tech.
(I can imagine that the First Amendment prohibit banning a means of communcation)
Govt now arguing that WeChat ban is necessary, because Chinese censorship is bad for its citizens, used to surveil Chinese protesters (Glad to see US realizes social media surveillance of domestic protesters is bad). Expanding from the U.S. national security concerns.
Plaintiffs return to key aspect of hearing -First Amendment does not allow gov't to shutdown a means of communications that their clients rely upon). Notes factual declaration that they can't easily use other apps.
Plaintiff argues that 40% of the Chinese-Americans can't speak English, and need a Chinese app, and nothing else provides the functions for Chinese speakers.
As plaintiffs note, for the irreparable harm test, even one day of lost of First Amendment right is an irreparable harm.
Plaintiffs contend that the total ban is anything but targeted, and points to the TikTok (delayed) ban as more targeted.
Court calls Sec. Ross statements that it is a ban is a party admission, holding the gov't accountable to the political statement about the ban.
(This often comes up, where the legal briefs are much more nuanced and careful than political figures who describe their own acts)
Plaintiffs argue that Trump has animus against Chinese, pointing to his political statement. Court says it has captured all the facts that were put into the record.
Court notes that both sides have been arguing on broad principles, but court is focused on fact based problem solving.
Court says it was struggling to find analogous cases that would provide guidance. Cited cases were fine for principles, but not on the facts. Asks for factually similar cases.
Gov't says Holder v Humanitarian Law Project to support their claim for deference and intermediate scrutiny. https://en.wikipedia.org/wiki/Holder_v._Humanitarian_Law_Project
Govt also argue that this is just another time, place and manner restriction. (Like a law saying you can't play loud music after 10 pm in a residential area)
Plaintiffs go with Hedges v Obama. https://en.wikipedia.org/wiki/Hedges_v._Obama
That said, they say there are not cases right on point because this situation is unprecedented, no one has gone near it.
Court says that it will get a decision out later today, but has to cite check, read some more cases, check a few things. Notes, correctly, that finalizing an order is a tedious task (but super important).
Gov't asks for a bond, in case there was an injunction. Info flows to China, this is harm, and therefore there will need to be a bond. Court notes the gov't had not asked in brief, and the matter is submitted.
Remember it is often difficult to guess at an outcome based on an oral argument. We'll find out in a few hours.
Update: Post hearing, Court follows up with: "On reflection, and given the intervening Identification of Prohibited Transactions since the last proposed order, the court asks the plaintiffs to submit the customary proposed order within an hour. "
Here's the WeChat users' proposed order. The court need use any of this language, but it helps show the court clearly what the requested injunction looks like. https://www.courtlistener.com/recap/gov.uscourts.cand.364733/gov.uscourts.cand.364733.54.0.pdf
Sorry typo - meant "the court need NOT use any of this language."
The order granting an injunction is out, my comments are on this thread. https://twitter.com/kurtopsahl/status/1307737765111459845
