Categoria: Diritto di parola – libertà di manifestazione del proprio pensiero

E’ noto che il Presidente Trump con executive order n. 13943 del 6 agosto 2020 ha ordinato la chisura del social WeChat, in quanto di provenienza cinese (appartiene a Tencent) e dunque pericoloso per la sicurezza nazionale (viene citato anche quello n. 13873 del 15 maggio 2019).

La comunità chinese-speaking statunitense nell’agosto 2020 lha impugnato perchè incostituzionale ed ora un giudice californiano (S. Francisco) l’accoglie in via cautelare: si tratta del provvedimento UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, 19 settembre 2020, U.S. WECHAT USERS ALLIANCE et al. v. DONALD J. TRUMP et al., caso No. 20-cv-05910-LB.

L’atto esecutivo , determinativo delle prohibited transactions,  è del 18 settembre 2020.

Vdiam cosa dice sul punto della vilazine del First Amendment

<< 1 – Likelihood of Success on the Merits:  First Amendment

The plaintiffs contend that the prohibited transactions will result in shutting down WeChat, a public square for the Chinese-American and Chinese-speaking community in the U.S. that is effectively their only means of communication with their community. This, they say, is a prior restraint on their speech that does not survive strict scrutiny. Also, even if the effect of the prohibited transactions is a content-neutral time-place-or-manner restriction, it does not survive intermediate scrutiny because the effective ban on WeChat use is not narrowly tailored to address the government’s significant interest in national security. The government does not meaningfully contest through evidence that the effect of the prohibited transactions will be to shut down WeChat (perhaps because the Secretary conceded the point) and instead contends that its content-neutral restrictions are based on national-security concerns and survive intermediate scrutiny. On this record, the plaintiffs have shown serious questions going to the merits of their First Amendment claim that the Secretary’s prohibited transactions effectively eliminate the plaintiffs’ key platform for communication, slow or eliminate discourse, and are the equivalent of censorship of speech or a prior restraint on it.  Cf. City of Ladue v. Gilleo, 512 U.S. 43, 54–59 (1994) (a city’s barring all signs — except for signs identifying the residence, “for sale” signs, and signs warning of safety hazards — violated the city residents’ right to free speech).

The government — while recognizing that foreclosing “‘an entire medium of public expression’” is constitutionally problematic — makes the pragmatic argument that other substitute social-media apps permit communication.  But the plaintiffs establish through declarations that there are no viable substitute platforms or apps for the Chinese-speaking and Chinese-American community.

The  government counters that shutting down WeChat does not foreclose communications for the plaintiffs, pointing to several declarations showing the plaintiffs’ efforts to switch to new platforms or apps. But the plaintiffs’ evidence reflects that WeChat is effectively the only means of communication for many in the community, not only because China bans other apps, but also because Chinese speakers with limited English proficiency have no options other than WeChat.  

The plaintiffs also have shown serious questions going to the merits of the First Amendment claim even if — as the government contends — the Secretary’s identification of prohibited transactions (1) is a content-neutral regulation, (2) does not reflect the government’s preference or aversion to the speech, and (3) is subject to intermediate scrutiny. A content-neutral, time-place-or-manner restriction survives intermediate scrutiny if it (1) is narrowly tailored, (2) serves a significant governmental interest unrelated to the content of the speech, and (3) leaves open adequate channels for communication. (…). To be narrowly tailored, the restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Unlike a content-based restriction of speech, it “need not be the least restrictive or least intrusive means of serving the governments interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not advance its goals.” McCullen v. Coakley, 573 U.S 464, 486 (2014) (cleaned up).

Certainly the government’s overarching national-security interest is significant. But on this record — while the government has established that China’s activities raise significant national-security concerns — it has put in scant little evidence that its effective ban of WeChat for all U.S. users addresses those concerns. And, as the plaintiffs point out, there are obvious alternatives to a complete ban, such as barring WeChat from government devices, as Australia has done, or taking other steps to address data security.

The government cited two cases to support its contention that “preventing or limiting” WeChat use advances the WeChat Executive Order’s essential purpose to reduce WeChat’s collection of data from U.S. users.64See Trans Union Corp. v. FTC, 267 F.3d 1138, 1142–43 (D.C. Cir. 2001) ) (upholding FCC’s ban on credit agency’s sale of consumers’ personal financial data because it was the only means of preventing the harm of disseminating personal data); United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1132 (N.D. Cal. 2002) (upholding criminal charge under the Digital Millennium Copyright Act for selling a tool that allowed a user to remove copying restrictions from Adobe files and thereby engage in copyright infringement by duplicating eBooks; targeting tool sellers and banning tool sales was reasonably necessary to avoid copyright infringement and protect digital privacy). The speech interests at stake in these cases — a credit agency’s sale of consumer data and targeting unlawful copying — are not equivalent to the denial of speech that attends the complete ban of WeChat for the Chinese-American and Chinese-speaking U.S. users. On this limited record, the prohibited transactions burden substantially more speech than is necessary to serve the government’s significant interest in national security, especially given the lack of substitute channels for communication. Ward, 491 U.S. at 791>>.

Vedremo cosa succederà con l’ancor più importante social Tik Tok.