Abstract

Excerpted From: Judy Tzu-Chun Wu and Ji Li, Chinese Immigrant Legal Mobilization in the United States: The 2020 Executive Ban on Wechat and Civil Rights in a Digital Age, 30 Asian American Law Journal 51 (2023) (119 Footnotes) (Full Document)

On August 6, 2020, then U.S. President Donald Trump issued two executive orders banning two popular social networking applications connected to companies in the People's Republic of China: TikTok and WeChat. Both are considered highly competitive Chinese companies with global footprints. In 2021, TikTok, a video-sharing platform majority-owned by Chinese investors, boasted 1.9 billion monthly active users in over 150 countries. Meanwhile, WeChat is the most popular social messaging app in China, with 1.29 billion monthly active users, and the fifth-most popular social networking app in the world. Former President Trump evoked national security as the justification for these bans, claiming that “the spread in the United States of mobile applications developed and owned by companies in the People's Republic of China ... continues to threaten the national security, foreign policy, and economy of the United States.” In the context of the COVID-19 pandemic, which Trump characterized as the “China virus,” and the use of TikTok to mobilize opposition to Trump in an election year, the public perceived these Presidential bans--particularly by a politician known for his reliance on social media platforms to promote his agenda--as racialized and politically motivated attacks against China, Chinese companies, and Chinese peoples. In response, a group of five then little-known Chinese immigrant and transnational lawyers in the United States filed a complaint for declaratory and injunctive relief against Trump, stating that, “[T]he Executive Order was ... issued in the midst of the 2020 election cycle, during a time when President Trump has made numerous anti-Chinese statements that have contributed to and incited racial animus against persons of Chinese descent-- all outside of the national security context.”

This Article, a collaboration between a historian and a socio-legal scholar, examines the legal mobilization to oppose the WeChat ban. Their collective efforts of filing a court case within fifteen days, raising funds to pay for the legal costs, and mobilizing public opinion about the racial and civil liberties implications of the executive order banning WeChat (hereinafter the Executive Order) resulted in legal injunctions that halted the implementation of the presidential order.

This remarkable response sheds light on a group of legal-political actors that has received relatively little academic or public attention. Asian Americans are commonly regarded as model minorities who overcome racial obstacles through hard work and strong families, not through political protest or legal advocacy. Those of immigrant and refugee backgrounds, in particular, are perceived as even less likely to challenge the existing political order given the tenuousness of their status in U.S. society and the dominant ideology that expects gratitude from newcomers. In the last several years, Chinese immigrants who have been vocal in political efforts have tended to align with conservative political leaders and agendas, as seen through their visible opposition against affirmative action, support for police officer Peter Liang who killed African American Brooklyn resident Akai Gurley, and mobilization against low-income housing and homeless shelters to protect the property values in their neighborhoods. Ironically, many of the Chinese American right, who were staunch Trump supporters before the ban, have relied heavily on WeChat to mobilize and spread disinformation among Chinese communities in the United States.

The Chinese immigrant and transnational lawyers who opposed the WeChat ban espoused diverse political beliefs. In their interviews with the authors, the lawyers did not express uniformity in terms of party affiliations, political ideologies, or analyses of racial politics. Yet they developed a sophisticated and coordinated multi-level strategy to claim the protection of their rights against the most powerful political leader in the United States. Through oral histories, personal observations, and the analysis of media and legal documents, we examine this legal mobilization effort through three sets of questions.

First, how were the WeChat defenders able to create a legal campaign without an organizational base? They did not have access to the resources of an established civil rights or civil liberties organization, like the National Association for the Advancement of Colored People (NAACP) or the American Civil Liberties Union (ACLU). Instead, they relied primarily on the social networks that WeChat fostered in the digital public sphere. The concept of the public sphere, originally defined by philosopher Jurgen Habermas, identifies a space in which individuals might come together to exchange ideas and develop opinions about their collective society and government. The contemporary popularity of social media now serves as the foundation of a digital public sphere, in which ideas might be articulated, circulated, and coalesced in the virtual realm. The significance of the digital public sphere in the WeChat case resembles what James S. Lai has characterized as Asian American “connective action,” the utilization of social media to activate civic participation. As he argues, social media activism is particularly useful for those who face obstacles, such as lack of U.S. citizenship and limited English language facility, to traditional pathways of political participation.

Second, we analyze how this set of actors could be characterized as both “weak” and “strong” in their access to and knowledge of legal political culture. Various studies have asked whether the legal system benefits those who already possess socioeconomic-political capital, and if those who are marginalized within the existing power structure can obtain justice through the courts. As lawyers, the WeChat defenders possessed the knowledge and access to resources and social networks to mount a court challenge and develop the fundraising infrastructure to support the case. At the same time, they did not possess the specialized knowledge and skills needed for this particular case (i.e., a constitutional challenge against a presidential order In addition, they faced strong political and gendered opposition, particularly from fellow members of the Chinese immigrant community.

Finally, we examine how the WeChat defenders challenged the model minority representation of Asian Americans by taking on a fight against the U.S. President; but the focus on the civil rights of just one racial or ethnic group did not necessarily translate to a broader vision of social justice. The results of the court case affirmed the belief that justice is possible within the existing system of political liberalism. This narrative supports exceptionalism, a view of the United States as a unique nation founded upon meritocracy and democracy. This representation, though, has been increasingly challenged by scholars and activists who regard the existing system of (in)justice as foundational to sustaining inequalities in American society. In other words, the WeChat case could have challenged the representation of Asian Americans as model minorities whose lack of overt resistance affirms the fundamental soundness of American society. Instead, while the case did demonstrate Asian American activist agency, it still strengthened the narrative of U.S. exceptionalism as a nation of law.

This case advanced the study of legal mobilization and racial protest for social justice by illuminating the efforts of an understudied group in U.S. society and legal culture. Asian Americans are the fastest-growing group in the United States, yet their significant roles in shaping the legal and political culture of the country of their residence has rarely been recognized. The WeChat mobilization could yield insight into how people of Asian ancestry in the United States have been regarded as both forever foreign and yet the ultimate proof of how the system works for racialized and immigrant groups. The subjects of our study reveal how they navigate these projections of being both alien threats and docile subjects through defending and claiming civil rights. But before proceeding to the analysis, a brief chronology of the lawsuit is in order.

The Executive Order issued on August 6, 2020, banning “all transactions with WeChat in the U.S.” would take effect on September 20th, leaving millions of WeChat users and other stakeholders only forty-five days to mount an effective legal challenge. The next day, a Chinese immigrant lawyer in California circulated a “preliminary analysis of the WeChat ban” among a group of fellow Chinese lawyers practicing in the United States who had formed a casual community of professionals on WeChat. Five of the lawyers decided to take immediate action. They established the U.S. WeChat Users Alliance (hereinafter USWUA) on August 8th and issued a public call for donations to fund a legal challenge against the Executive Order. In the following three weeks, they hired a seasoned civil rights litigator, identified five individuals and two entities to serve as plaintiffs and five expert witnesses, and drafted a complaint. During this period, they raised $50,000, mostly from the other Chinese immigrant lawyers in the virtual WeChat community. On August 21st, USWUA filed a complaint in the U.S. District Court for the Northern District of California challenging the Executive Order. They immediately filed a motion for preliminary injunction, claiming, among others, that the Order was without legal authority and “unconstitutionally vague and violated due process under the First and Fifth Amendments.”

On September 16th, the Department of Justice (DOJ) issued a notice assuring WeChat users that the Executive Order would not affect their personal use of the app. The plaintiff lawyers, however, doubted the validity and credibility of the assurances and continued to prepare for the injunction while waiting for the Department of Commerce (DOC) to issue implementation rules. Two days after the DOJ's assurances, consistent with the lawyers' expectations, the DOC issued implementation rules to take effect on September 20th that would result in a complete ban of the use of WeChat (personal or not) in the United States.

After two hearings on September 18th and 19th, the District Court granted USWUA's motion for preliminary injunction and suspended the implementation of the Executive Order. The DOJ reacted by filing two separate motions to stay the preliminary injunction in both the District Court and the Ninth Circuit. The District Court denied the injunction on October 23rd, and the Ninth Circuit denied on October 26th. The DOJ then filed a motion requesting the Ninth Circuit to overturn the lower court's preliminary injunction. The USWUA lawyers battled the Trump administration at every step. While the legal proceedings were ongoing, previously elected Vice President Joseph R. Biden won the presidential election. On June 9, 2021, President Biden revoked the WeChat ban. On August 9th, about a year after Trump issued the Executive Order, the DOJ notified the court of its withdrawal, marking an unprecedented and highly impactful legal victory of Chinese immigrants against a U.S. President who evoked his national security mandate.

How did these five obscure Chinese lawyers successfully defy a presidential order? What does this historical event reveal about the Chinese immigrant community in the United States, their strengths and vulnerabilities, and their oppression and resistance? What can we learn from this case about the future of Chinese Americans' legal and political rights as the community is caught in the crossfires of the U.S.-China rivalry? This Article attempts to answer these preliminary questions.

[. . .]

In the aftermath of the WeChat case, some of the lawyers involved are continuing their efforts to protect Asian American civil liberties. For example, Ying Cao, the only woman on the primary WeChat legal team, has been offering pro bono legal services in the wake of the March 16, 2021 Atlanta shooting that resulted in the deaths of six Asian American women. Others have pointed to the persecution of Chinese American scientists and engineers for being suspected spies for the People's Republic of China. This most recent set of political accusations follows a longer pattern that traces back to the Cold War and to the targeting of Wen Ho Lee in the 1990s and early 2000s. In other words, the legal advocates who opposed the Executive Order continue to use WeChat as a professional and organizing digital public sphere. In fact, the success of the case has in many ways sparked their commitment to political activism. The defenders are leveraging their strong status as legal experts in servicing the “weak,” most notably, for Asian Americans targeted for violence and persecution. These efforts affirm the WeChat defenders' belief in the United States as a nation of law where the efforts to achieve justice are possible.

The WeChat defenders' legal mobilization efforts should be applauded for quickly and effectively challenging an overreaching Executive Order through a digital practice of connection action. The case had a disproportionate impact on Chinese immigrant and transnational subjects in the United States and also held long-term implications regarding government regulation of speech and transactions in the digital public sphere. The case was not possible without Chinese immigrant and transnational political activism. However, there remains a question whether these efforts will primarily be directed towards protecting this particular racialized immigrant community, or if the efforts will be channeled towards more transformative forms of justice for other racialized groups more broadly.

Furthermore, the complex politics within the Chinese immigrant community evident in the WeChat case sheds light on persistent, and perhaps growing, divisions. As with any political movement, there is rarely uniformity of support. And yet, the organized opposition from coethnics, motivated by both political conditions in China and the United States speaks to a transnational political formation that rejects the principles of political liberalism and instead embraces the politics of the mob. Using misinformation and intimidation, the opponents of the WeChat case deployed authoritarian practices that characterize aspects of political culture in the People's Republic of China and the United States.

The legal mobilization for access to WeChat reveals stark political pathways that are messy and complicated. The ban against WeChat, interpreted as an anti-Chinese effort, could represent White political rule in the United States. The Chinese immigrant efforts to shut down the WeChat case suggest that a multiracial or at least Asian-White political coalition is emerging through a collective commitment towards anti-communism and the political utilization of intimidation. The WeChat defenders embrace the principles of political liberalism and anti-discrimination through White allies' support but may not necessarily support a more transformative critique of race and justice that accounts for the persistence and legal institutionalization of anti-Blackness. As a window into our current political culture, the WeChat case reveals the agency of Chinese immigrants in championing their political rights and the complex legacies and implications of their efforts.

Judy Tzu-Chu Wu, Professor of History and Asian American Studies, University of California, Irvine.

Ji Li, Professor of Law and the John & Marilyn Long Chair, University of California, Irvine