The Troubling Free Speech Implications of Trump’s TikTok/WeChat Sanctions

Barely a decade had passed since Congress passed the International Emergency Economic Powers Act (IEEPA) before they realized they had made a crucial mistake. When originally debating the terms of the wide-ranging sanctions law in the late 1970’s, Congress was convinced that the very existence of the First Amendment provided all of the free speech protection that Americans needed. But then the government started confiscating books and magazines coming from sanctioned countries as they entered the United States, and by 1988, Congress was back at the drawing board.

In the end, Congress passed two amendments in the space of six years to try to beef up free speech protections in the law. Still, President Donald Trump’s recent executive orders, prohibiting transactions with the mobile applications TikTok and WeChat, show that IEEPA’s broad powers can still have significant impact on the speech of persons in the United States. We should all be wary of the free speech implications of these sanctions, and question whether such actions are really what Congress intended.

IEEPA gives the president broad authority to freeze the assets of, and bar financial transactions with, any person or entity deemed to contribute to a foreign-origin threat. In 1988, however, Congress excluded from the president’s powers the ability to regulate “directly or indirectly” a range of “informational materials,” whether commercial or not. The amendment explicitly mentioned materials such as publications, films, and photographs, but the Treasury Department quickly asserted that this exception didn’t apply to intangible items, such as television broadcasts. So, Congress amended the law again in 1994 to specify that the exception applied regardless of “format or medium of transmission.” It updated the list of protected media to include what was then cutting-edge technology, such as compact disks and CD ROMs. And it added language to make clear that the list was meant to be illustrative, not comprehensive.

Fast forward to August 2020: “apps” are ubiquitous, and Trump is continuing his aggressive use of IEEPA’s powers—powers he clearly relishes all the more because he can wield them without effective congressional checks. Originally, the law allowed Congress to shut down IEEPA orders using a so-called “legislative veto”: a law that takes effect without the president’s signature. In 1983, though, the Supreme Court held that legislative vetoes are unconstitutional. In order to overturn an IEEPA order today, Congress needs a veto-proof supermajority—a virtual impossibility in the current hyper-partisan environment.

On August 6, Trump issued two executive orders under IEEPA, putting a 45-day countdown clock on  “U.S. persons” (which includes all people, real or corporate, in the United States) using TikTok and WeChat. The orders leave to the secretary of Commerce the details of implementation, but it seems likely that there will be prohibitions on business transactions with the apps that would make them largely unavailable to U.S. users. Trump boasted: “I mean we have all the cards because, without us, you can’t come into the United States.”

It’s clear that banning these apps will hinder a significant amount of expressive activity within the United States, from text messages to videos of all sorts. Indeed, a lawsuit already filed by a group of WeChat users in the United States makes the case that the app serves as a “virtual public square.” TikTok has also filed a lawsuit in which the company claims a violation of free speech rights and argues that it is covered by the informational materials exception.

Already, other tensions at the intersection of apps, sanctions, and free speech have cropped up. Reportedly, Apple bans apps originating from Syria from its store due to sanctions. And some U.S. senators have been pressuring Twitter to “de-platform” certain Iranian officials, claiming that allowing the officials to maintain their accounts violates U.S. sanctions.

Of course, there may be legitimate national security concerns regarding some apps, including possibly TikTok and WeChat. A review by the Committee on Foreign Investment in the United States (CFIUS) concluded that TikTok presented a threat to U.S. national security, which Treasury Secretary Steven Mnuchin characterized as possible “exploitation” of U.S. users’ personal data. If those issues exist, the U.S. government should be able to act against them effectively. But in a time when expressive activity is increasingly happening online, we should all be concerned about expansive presidential powers that can effectively shut down some of those avenues of communication at the stroke of a pen. This is especially true when Congress has so clearly sought to protect First Amendment activities from IEEPA’s reach.

Ultimately, sanctions are about trying to advance U.S. policy goals. In advocating for the 1988 amendment to protect First Amendment activities from IEEPA sanctions, then-Representative Howard Berman (D-Calif.) exhorted against near-sighted attacks on free speech in the name of other interests. He reminded his fellow lawmakers: “We are strongest and most influential when we embody the freedoms to which others aspire.” The same is true today.

Image: In this photo illustration, the download page for the TikTok app is displayed on an Apple iPhone on August 7, 2020 in Washington, DC. Photo Illustration by Drew Angerer/Getty Images

 

About the Author(s)

Andrew Boyle

Counsel in the Liberty and National Security Program at the Brennan Center for Justice; previously prosecuted senior Khmer Rouge leaders on behalf of the United Nations for war crimes, crimes against humanity, and genocide - Follow him on Twitter (@J_Andrew_Boyle).