Feb 10, 2021
Deplatforming Religion: When Social Media Prays
Whose side are you on?: Part 1
Two sets of citizen groups have filed lawsuits focused on their access to WeChat, an app created by Chinese company Tencent. The two have contrasting stances on whether or not WeChat should be regulated, whether WeChat causes deep social harm versus creates irreplaceable social benefits, and reinforces constitutional rights or suffocates them. One set of claimants fervently deride the White House ban on WeChat as a chain, while the other is emancipated by it.
We introduce first the WeChat users in federal court who want the Chinese company’s app freely accessible without U.S. government regulation. The plaintiffs consist of Chinese-American citizen groups, arguing that the U.S. ban repressed their speech, freedom of association, and, as excerpted below, their freedom of religion.
We ask, can the same arguments for unrestricted religious expression be applied to citizens whose social media accounts were banned by American tech giants? Both the court filings and legal precedent indicate they can.
Below is a copy of the Feb. 1, 2021 brief supporting the Second Amended Complaint filed in federal court by the “WeChat Users Alliance” plaintiffs. The group secured a federal injunction blocking enforcement of an Executive Order signed by President Trump that banned American companies from doing business with Tencent. The ban would have prohibited use of the WeChat app that the U.S. government declared allowed the Chinese government to engage in mass surveillance of its users, including Americans.
The reporting on the WeChat users’ lawsuit against the White House generally address the issues of abridgment of free speech rights under the First Amendment versus national security. However, when reading the actual legal brief, it was therefore surprising to encounter the plaintiffs’ arguments that the ban fundamentally affects their religious lives, and to such a degree as to violate federal law.
SEE: “U.S. WeChat Users Alliance v. Donald Trump (President of U.S.) and Wilbur Ross (Secretary of Commerce),” Plaintiff’s Opposition to Defendants’ Partial Motion to Dismiss Second Amended Complaint, U.S. District Court, Northern District of California (Feb. 1, 2021).
The current injunction stays the ban from taking effect while the case is argued in federal court, with hearings continuing even after the 2020 election and transition of power in the White House. Still in early infancy, the Biden administration does not yet have a Commerce Secretary confirmed. Biden has not clarified his position on the ban, which may signal he will grant the federal court the first bite at the apple. That strategy may prove unavailing procedurally, since Biden’s position as the current President of the United States automatically renders him the “true” party being sued, and not Trump. Therefore, arguments in the White House’s filings in this case belong entirely to the Biden administration.
Here are some short excerpts worth reading from the WeChat users’ federal brief. It sheds light on just how intimate social media platforms have become with almost every aspect of American life, touching far more of our freedoms than merely the First Amendment. Specifically, does deplatforming assume added significance when it impedes members of religious groups from communicating, planning assembly, sharing religious and educational content, or from the somber act of prayer?
EXCERPTS FROM COURT FILING: To date this litigation has focused largely on issues of free expression and the separation of powers, but it is and always has been a case about racial discrimination and religious freedom as well.
Possessing no evidence whatsoever that WeChat shares U.S.-based users’ information with Chinese authorities, President Trump and Secretary Ross demanded nothing less than a complete ban on the app, ostensibly to protect American national security. They continued to insist on a wholesale ban despite proposals by Tencent Holdings Ltd. (“Tencent”) to mitigate the government’s stated concerns about national security and even after their own cyber-security agency recommended a far narrower prohibition on the use of the app by government employees and critical infrastructure partners. . . .
The Religious Freedom Restoration Act (“RFRA”) “prohibits the ‘Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability’ unless the Government ‘demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 705 (2014). . . .
Here, the Second Amended Complaint (“SAC”) plausibly alleges that the WeChat ban substantially burdens Plaintiffs’ exercise of religion. For example, the SAC explains that WeChat is “used by individuals and groups — including churches — for religious and cultural purposes, including: group prayer, organizing for holidays and events, taking care of the poor, sick and infirm, and education.” Plaintiff Bao and other Chinese-speaking WeChat users also rely on WeChat to participate in Bible study groups and other church gatherings.
Indeed, because of the ongoing coronavirus pandemic, WeChat “is the only way” that Plaintiff Bao and many other Chinese-speaking congregants in the United States participate in religious gatherings, and if WeChat is shut down or otherwise rendered unusable in the United States they will be prevented from participating in activities that their religion requires. The SAC further alleges that WeChat provides Chinese-speaking users in the United States with a means of organizing and celebrating religious and cultural holidays14 such as the Chinese New Year, the Mid-Autumn Moon Festival, Ching Ming Festival, and the Duan Wu festival, and that Plaintiff Bao and other WeChat users rely on WeChat to learn about and celebrate these and other religious and cultural events. . . .
Defendants argue that Plaintiffs have not plausibly alleged a “substantial burden” on their exercise of religion because they cannot personally be the target of an enforcement action under the Identification, which expressly prohibits only “business-to-business” transactions. . . . If WeChat shuts down or is rendered unusable in the United States because third-party businesses are prohibited from providing WeChat with the technical services it needs to function, Plaintiff Bao’s ability to practice his religion will be burdened to the exact same extent as it would be if the government simply prohibited Bao himself from using WeChat.
A Parallel?
In our prior article, Turn Tables: Can Citizens Blocked by Big Tech Join State Feeds, we poised a hypothetical question: “Can Q’anon followers and other American citizen groups who are banned from U.S. social media platforms, such as Facebook and Twitter, file a lawsuit compelling access to the sites of their legislative representatives, by arguing such access is a public utility?” We can now additionally offer a copy of this WeChat legal brief to expand the conversation.
We strongly recommend at least perusing the court brief (30 pages in length, double-spaced), in part because the arguments made by the WeChat plaintiffs can apply to a significant extent to recent actions taken by U.S. private industry to deplatform members of various conservative citizen groups following the Nov. 2020 elections.
Granted, this set of WeChat users is challenging government action in federal court, and have already succeeded in securing injunctive relief. However, there is also substantial precedent for civil rights cases against private industry for discrimination using state law.
SEE: Customer Complaints: How to Avoid Discrimination Claims from Your Clientele, Fisher Phillips (Defense Law Firm for Corporations) (Dec. 31, 2018)
EXCERPT: [One of three] source[s[ of public accommodation discrimination lawsuits is state law. Only five states in the country do not have any statewide laws regulating discrimination in public accommodations other than for disability. Every other state’s law prohibits discrimination on the basis of race, religion, national origin, and gender.
Thus, depending on their state of residence, the users banned by American tech giants may be able to pursue claims arguing corporate denial of their access to social media platforms impermissibly restricts access to religious association and expression.
SEE: The Right to Refuse Service and Its Implications on Society, “Juris”: Duke University’s Undergraduate Law Magazine (Oct. 22, 2018)
EXCERPT: Discrimination laws can vary greatly across the United States. In June 2018, White House Press Secretary Sarah Sanders was turned away when trying to dine at the Red Hen restaurant in Lexington, VA. Sanders was turned away by the restaurant due to her political affiliation with the current presidential administration. The Virginia Human Rights Act does not protect consumers from political affiliation discrimination. Therefore, the restaurant did not break any federal or state law when refusing to serve Sanders. [By contrast], if a restaurant located in the District of Columbia were to deny Sander’s entry due to her political affiliation, the restaurant could face a civil rights lawsuit. The discrimination of political affiliation is specifically forbidden in the DC Human Rights Act of 1977.
In fact, as excerpted above, this first group of WeChat users argues that, although the White House’s Executive Order names American businesses as the parties prohibited from dealing with Tencent, the Chinese-American plaintiffs are thereby indirectly precluded from using Tencent’s services. With regards to the citizens banned by American Big Tech, their personal social media accounts are directly targeted and canceled.
Moreover, as argued in our prior article “Turn Tables,” the bans imposed on accounts of U.S. citizens also indirectly impact their ability to access public services, including dialogue with legislative representatives and public health officials. Thus, to the extent that the goal is thwarting censorship and abridgment of religious association, application of this reasoning to the American tech companies would appear to be a stronger case for assignment of liability and judicial intervention.
If the WeChat plaintiffs arguments were deemed credible enough to secure an injunction against the White House, then banning followers of Q’anon from using Facebook or Twitter even to organize religious events and church communions, or from exchanging choir music and words of prayer, should qualify as an overinclusive limitation on religious expression.
Do you agree?
Coming Soon:
In Part 2, we will introduce you to the second group of Chinese-American citizens, who filed suit in California state court and who directly named the U.S. corporate subsidiaries of Tencent as defendants. Advocating the White House’s ban in their legal briefs, and offering both scientific research and the opinions of the American hacker community, they seek to have Tencent’s services declared unlawful because of foreign censorship.
Whose side will you be on?
