Shutting down mediums of communication like TikTok and WeChat clearly constitutes an illegal "prior restraint" on speech, said Erwin Chemerinsky, the dean of the University of Berkley School of Law, explaining that "prior restraint" is when a government action stops free speech before it happens.
Chemerinsky made the remarks at an panel of experts online earlier this week hosted by the Asia Society in response to the executive orders of U.S. President Donald Trump to ban two of China's largest mobile apps, TikTok and WeChat, from the U.S. market on "national security" grounds, and a flurry of lawsuits filed to challenge the ban.
Besides Chemerinsky, James Dempsey, executive director of the Berkley Center for Law & Technology, and Susan Shirk, former Assistant Secretary of State and current professor at the School of Global Policy and Strategy at the University of California, San Diego joined the meeting to discuss the issue from legal, economic, technological and international relations perspectives.
Dempsey, a leading expert on privacy and internet policy for three decades, explained that the controversial powers of the U.S. Defense Production Act and the Committee on Foreign Investment in the United States (CIFUS) used by the authorities against these popular apps were expanded just two years ago.
Their powers over foreign investments and mergers in the United States "were amended in 2018 and greatly increased" by providing influence over the concept of "U.S. businesses," he said. Now the Trump administration interpreted this to mean not just American companies, but any company that does business in America, no matter what its origin.
Dempsey said that software, hardware, apps and data mining will remain a primary security concern to the administration and Congress for the foreseeable future and warned of the havoc that misinformation can create.
"We are behind the curve on misinformation and there's plenty of domestic misinformation in the U.S.," he said. "Leading up to the election, it's going to be insane. There will be voter suppression, voter fraud, it's going to be crazy - plan for the worst."
He encouraged everyone "to be responsible for doing more of our own due diligence" to find the truth beneath the reams of misinformation and fake news.
Chemerinsky argued that even though the United States faced the challenge of misinformation, Trump's ban had no legal standing on Constitutional grounds, citing it as a clear violation of the First Amendment, which protects freedom of speech.
"The U.S. government must show a compelling interest or need to do so that can't be achieved any other way, which it has not done and cannot do," he said.
"There is no compelling 'interest,' no demonstration of a real national security problem, no proof that there was no other way, plus the ban restricts the people's right to transmit and receive information," he said categorically.
He stressed that the internet and social media are the prevailing means of communication of the times and noted that U.S. law provides for special protection for internet and media communication, with Supreme Court requiring any limits on them to be very narrowly tailored.
Regarding the economic impact of the TikTok/WeChat ban, Shirk pointed out that the 1930s was all about protectionism and nationalism, while the 1980s was about globalization.
"We're heading backwards," she lamented.
"U.S. and China's economies, innovations, higher education, manufacturing, and societies are so intertwined," she said, "and Trump is trying to break that, which will only force China to pursue self-reliance in advanced technology," a move that will hurt U.S. interests profoundly.
She pointed out that Trump's aggressive approach to China has drastically reduced foreign direct investment in the United States - not just from Chinese investors but from other foreign companies as well.
Some of the panelists felt the schism between the United States and China could become dangerous, forcing other countries to take sides.
She contends that Trump's confrontational approach has also lost America respect in China. "Trump just pushed back in every domain without any clear goal and without making any attempt to negotiate first," she said. "The Chinese used to admire us, now they see us as hypocrites with no true open market."
"America needs to double down on our strengths of openness, welcoming of immigrants and foreign students, and a free-market. We want to be better versions of ourselves," she said.
