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This article says that President Trump will ban the popular apps WeChat and TikTok.

On the other hand the Bernstein case established (at least in the 9th Circuit) that computer software is speech. The government chose not to appeal that case at the Supreme Court, so in theory this is still unsettled outside the 9th Circuit, but lets assume for the moment that other courts will go along with this.

Can the executive issue a ban on these applications? The justifications given are:

  1. Chinese companies are gathering information on US citizens, and the Chinese government could gain access to this information and use it nefarious ways.

  2. The Chinese government could impose use these apps to promote its view of the world to US citizens.

However it seems to me unlikely that this would survive Strict Scrutiny Any national security concerns could be addressed by more narrowly tailored means, such as a warning notice and a ban on use by government employees or contractors with security clearance. A ban which has the side effect of preventing teenagers from uploading 15 second dance clips would not seem to be narrowly tailored. As for Chinese propaganda, I would have thought that the 1st Amendment gives the same free speech rights to the Chinese government that it gives to any other person.

I've read this answer and the linked Lawfare articles which explain that the executive has the power to block commercial transactions on national security grounds, but those laws would seem to fall before the First Amendment. The Bernstein case was likewise about the power of the executive to limit speech for national security, and that argument failed.

So: could a 1st Amendment argument be used to overturn this proposed ban?

Edit (posted after user6726's answer):

This article on TechDirt argues that the ban is in violation of the 1st Amendment. In addition to the "code is speech" argument, it also argues that banning security updates from people who already have the app will weaken security rather than strengthening it, and:

The claim is "to protect national security." We already knew that was bogus, and all of the info anyone can get from TikTok is already widely available for purchase.

Edit 2: this question is being overtaken by events. A group of WeChat users have obtained a preliminary injunction on the grounds that the ban impacts their 1st Amendment rights.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Pat W. Sep 19 '20 at 9:53
  • This is being overtaken by events. Should it be closed on those grounds? – Paul Johnson Sep 20 '20 at 16:20
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The 9th Circuit decision actually held

that the challenged regulations constitute a prior restraint on speech that offends the First Amendment

which is not the same as saying that computer software is speech. A crucial differentiation is that by prohibiting talking about the technology, the regulations imposed a "prepublication licensing scheme that burdens scientific expression", which distinguishes the TikTok case from talking about cryptography.

The regulations burden business transactions, which have for a long time not been protected by strict scrutiny. The first hill one would have to climb would be showing that there is a real First Amendment issue. There is no First Amendment right for the Chinese government to spy on Americans.

The second issue is whether narrow tailoring means that if someone can come up with an alternative to an outright ban, then the regulation is not narrowly-enough tailored. We may eventually get a clearer guideline on that, since state governments have imposed very many restrictions on constitutional liberties, in order to prevent the spread of covid, when a less restrictive action would be warning people that this is a dangerous disease. Many restrictions have survived strict scrutiny because they were believed to be necessary to achieve that governmental end.

The executive order identifies the compelling government interest:

TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.

In light of that, it is hard to see that a warning notice would be effective in the face of this threat. Seizing the company and its IP and handing it over to Microsoft would be a less restrictive measure that would probably be as effective and would be protective of the First Amendment rights of teenagers, but it would also be somewhat outside the scope of current US law, so it isn't an actual alternative. I conclude that the ban is the least restrictive effective response to the threat. But it is not entirely clear what the constitutional rules are regarding effectiveness of alternatives (does 20% less restrictive compel a 10% less effective solution?).

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  • The government has the power to compulsorily acquire private property so they could buy the app and then sell or give it to Microsoft. – Dale M Sep 18 '20 at 21:50
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    @DaleM Maybe in Australia, but under the 5th Amendment, governments in the US can only "take" private property for "public use." How much impact this requirement has is contested, but everyone agrees it has some bite. law.cornell.edu/constitution/fifth_amendment – Just a guy Sep 19 '20 at 0:52
  • I have never heard of a "taking" for national security purposes, and since "take" under the Takings Clause means "take so that the public can use", "prohibiting the public from using" is, uh, contrary to what is allowed under the 5th. There is no law allowing such a taking, and there is no "common law absolute power of the state" to do what it wants. – user6726 Sep 19 '20 at 4:40
  • You are right about the conclusion, but the one of the premises was "Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer". So yes, the 9th Circuit did decide that software is speech. – Paul Johnson Sep 19 '20 at 8:34
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    @PaulJohnson, no the 9th Circuit decided that computer programs could be speech. – Mark Sep 19 '20 at 21:48

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