Imagine waking up one day, unlocking your phone, and realizing that you could no longer send or receive messages through your favorite app. Or make or receive calls. Or scroll through your social media feed. Imagine that all of these functions were rolled into one essential app that you and your friends, family, and co-workers depended on, and that the U.S. government had decided to ban it.

That’s exactly what the Trump administration is attempting to do with WeChat, a communications app that millions of people in the United States depend on to connect with friends, family, and business contacts across the world.   

On Friday, we and the ACLU of Northern California asked the Ninth Circuit Court of Appeals to block the Trump administration’s autocratic effort to ban WeChat. Our friend-of-the-court brief, filed in support of a group of WeChat users who have challenged the ban, explains why the administration’s actions violate the First Amendment.

The First Amendment protects our freedom of speech. It applies here because WeChat users depend on the app for a wide variety of speech and expression. Nineteen million Americans, primarily Chinese Americans, rely on WeChat daily to call and message with friends, family, and colleagues. The app is no ordinary communications tool: It’s also a platform for social media, news, money transfers, and e-commerce. It hosts an enormous community — more than one billion users worldwide — that simply can’t be replicated. For many of WeChat’s users, the app is their primary or only source of communication with friends and family in China, where the government blocks popular messaging platforms like Facebook, WhatsApp, and Instagram.

In August 2020, the Trump administration issued an executive order declaring WeChat a threat to national security. As we explained at the time, WeChat, like many U.S.-owned social media and messaging apps, including Facebook and Instagram, does collect broad categories of user data. Concern about how this data is used and protected is warranted. In the case of WeChat, there is also some legitimate concern about whether user data is accessible by the Chinese government. But the Trump administration made no attempt to address this concern in a way that would minimize interference with WeChat users’ speech, as the First Amendment requires. Instead, the administration’s stated goal is to make it impossible to use WeChat in its entirety.

After the coalition of WeChat users challenged the ban in court, the district court found that there were substantial questions about the constitutionality of the ban, and the court issued a preliminary order that prevented it from going into effect. The government then appealed that decision to the Ninth Circuit.

Our brief in support of the WeChat users makes two key arguments about why the government’s ban violates the First Amendment.

First, the ban prohibits people from speaking or expressing themselves before they can even do so. It’s what the Supreme Court has called a “prior restraint” on expression — one of the most serious and least tolerable infringements on First Amendment rights. Prior restraints are a greater threat to our rights than laws that prohibit or criminalize certain speech after it’s uttered. That’s because they prevent speech from happening at all. Here, by banning WeChat, the government is preventing all of the communications that 19 million Americans are having each day on the app.

It is a dangerous thing for any government to decide what people can or can’t say before they even say it. Governments can use that power against people whose opinions it does not like and wants to suppress. Or it could use a power like this in discriminatory ways, based on bias — a serious concern here.

Given these dangers, courts require the government to meet an exceptionally high burden when it seeks to justify this type of restriction on speech. The government must be able to point to immediate, irreparable harm from the banned speech, and its restriction on the speech must be as narrow as possible to prevent that harm from occurring.

The government’s sweeping ban on WeChat plainly fails that test.

In court, the government argues that its ban doesn’t implicate the First Amendment at all, because its actions were technically directed toward WeChat’s infrastructure, not the First Amendment-protected speech of WeChat’s users. But the government has acknowledged that its prohibitions will make the app unusable. And its legal argument ignores Supreme Court precedent, which makes clear that even when the government restricts speech indirectly, those restrictions can be prior restraints.

Second, even if the ban isn’t viewed as a prior restraint, it’s plainly a “total ban” — another kind of government action that, under the First Amendment, demands close scrutiny by courts. Where the government bans a medium of expression that is “unique” and “important,” courts require the government to meet a very high bar to justify the ban: It cannot suppress more speech than necessary to address the harm. In practice, broad bans like this one never pass that test.

Here, the government has banned an undeniably unique and valuable platform for users to express themselves. As the district court found, “WeChat is irreplaceable for its users in the U.S., particularly in the Chinese-speaking and Chinese-American community.” Because the government’s actions against WeChat suppress more speech than necessary, they violate the First Amendment.

With inauguration on the horizon, there may be reason to hope that the Biden-Harris administration will withdraw the WeChat ban. President-elect Biden hasn’t yet taken a public position on it, but given the high First Amendment stakes, withdrawal should be a no-brainer. In the meantime, we’re pressing for the First Amendment rights of WeChat users in court.

EDITOR’S NOTE: This blog was updated on January 15, 2021 to add commutations for people on death row. The ACLU made this addition once the Trump administration could no longer execute these individuals in response to a commutation request. 

Millions of people took to the streets this year demanding racial justice and an end to racism in policing and the criminal legal system more broadly. On Election Day, voters provided their own stamp of approval by passing ballot measures in red and blue states alike to reform drug policy and other laws that have led to our mass incarceration crisis. Prosecutors and sheriffs committed to tackling mass incarceration won elections from Florida and Michigan to Texas and California.

In fact, it is fair to say that a future Biden-Harris administration has a mandate to fight against mass incarceration. An Associated Press poll from June found that 94 percent of Americans believe that the criminal justice system needs to change — including a large majority of Republicans — and 69 percent of Americans support major changes or a complete overhaul of the system.  

President-elect Biden and Vice President-elect Harris have already indicated that they will make racial justice a priority in their administration, including by reforming the criminal legal system. This is welcomed. The ACLU believes that now is the moment for bold action to tackle this crisis. The U.S. leads the world in incarceration and in police violence. Now is the time for visionary steps to end mass incarceration. 

Here is our top to-do list for the first 100 days:

End the War on Drugs

A Biden-Harris administration should issue an executive order declaring an end to the war on drugs, directing federal prosecutors to no longer pursue drug cases, commuting the sentences of people serving time for drug-related cases, and pardoning people with past criminal convictions for drug-related offenses. Moreover, the administration should support reform bills like the MORE Act, which would remove marijuana from the list of scheduled substances, expunge many past convictions and arrests, and support racial justice efforts.

Grant Mass Clemency
 
The Executive has complete authority to grant clemency or demand the initiation of a mass clemency process, either of which President-elect Joe Biden could do in his first 100 days in office. Doing so would show he is serious about ending this country’s mass incarceration crisis and addressing the harms caused — disproportionately against Black and Brown people — by the 1994 crime bill and other failed “tough on crime” policies. There are tens of thousands of people who could be released within the first 100 days, by granting categorical clemency to the following groups: 

1. People who would serve a lesser sentence than they are currently serving if convicted under current laws;
2. People convicted of drug offenses;
3. People incarcerated for technical probation or parole violations; and
4. Older incarcerated people.

And for everyone who is granted clemency, it is incumbent on leaders across the federal government and in local communities to thoughtfully and holistically support people leaving prison. 

Embrace Use of Force Standard

An important first step in reining in police use of force is to set clear national standards, requiring all police departments to adhere to common-sense limitations and best practices based on principles of necessity, proportionality, and de-escalation. Notably, research has found that when police departments adopt such policies, they not only kill fewer people, but also suffer fewer officer deaths in the line of duty.

President-elect Biden has already identified the creation of a national, model use-of-force standard as one of his racial equity priorities. It’s important that this use-of-force standard truly conforms to the best practices in the field by embracing the principles set forth in the PEACE Act, which permit officers to use force only when necessary, proportional, and less extreme alternatives are exhausted.

Dramatically Reduce Pretrial Detention

The federal system, which rarely uses cash bail, should be a model for states and localities. But the federal pretrial detention rate is an appalling 75 percent. The Biden-Harris DOJ must seek detention for only the most extreme cases and aim for a pretrial detention rate no higher than 5 percent, instruct prosecutors to make charging decisions that avoid presumptions of detention, and invest in supportive services — such as transportation and child care assistance to make it easier for people to attend their court dates — instead of bias-enforcing risk assessment tools that do not address the underlying problems. The administration should also support legislation to eliminate presumptions of detention, which violate the basic tenant that people are innocent until proven guilty.

In encouraging local reform, the administration should align with these same principles and focus on funding evidence-based support rather than discriminatory algorithms or onerous conditions.

End Private Prisons
 
Criminal justice policy should be driven by public safety needs, not by the greed of private corporations. But more than 100,000 people in the United States are incarcerated in private prisons, where profit-seeking takes priority over safety, security, and rehabilitation. In 2016, the Obama administration announced that it would end the use of private prisons by the federal Bureau of Prisons, but that order was reversed in the early days of the Trump administration.  The Biden administration should end the use of private prisons by the Bureau of Prisons, the U.S. Marshals Service, and all other federal agencies.   

End the Federal Death Penalty

The federal death penalty is plagued by racial bias, geographic arbitrariness, and unfairness — just like the death penalty in the states. The Biden-Harris administration must honor its pledge to work toward federal legislation to end the federal death penalty. The Trump administration recklessly carried out an unprecedented number of federal executions, all during the pandemic, leading to spikes in COVID-19 cases and subjecting staff, witnesses, loved ones of the victims, and people incarcerated in federal prisons alike to escalated risk of the disease. The Biden-Harris administration should immediately suspend all federal executions while it works to end the federal death penalty once and for all. As they work towards that end, they must commute all federal death sentences and drop the death penalty in all pending trial cases. 
 
End Solitary Confinement
 
The United States is the world’s leader in solitary confinement, with tens of thousands of men, women, and children locked in isolation on any given day. Although international human rights standards require that solitary confinement be used only as a last resort and for no more than 15 days, it’s common for people in U.S. prisons to be isolated for months, years, and even decades. The Obama administration enacted limited reforms at the federal level, but much more needs to be done. The Biden administration should ban solitary confinement lasting longer than 15 days for people in federal custody, and create incentives for states and localities to do the same.  

I was in the middle of reciting Ya Seen, the 36th chapter of the Quran, when the executioner signaled to me that was enough. It was time to kill Orlando Hall. Across a strip of tape dividing us, Orlando received a shot of lethal injection before I could finish the verse’s final, essential line. “So glory be to Him in whose hand is the dominion of everything, and to Him you will be returned.”

Orlando lost consciousness while reciting the Shahada, as I, his spiritual advisor, had instructed him.

The execution of Orlando Hall on Nov. 19 was the first I had ever witnessed. As a business professor at Indiana University, I never thought I’d ever be in that position, nor did I expect to become a spiritual advisor to a man on death row. What struck me in the execution chamber was how surreal it felt. It almost looked like a hospital. Orlando lay on the gurney as if awaiting surgery, with tubes attached to his arm like an IV. A blanket lay over him, concealing the straps that held him down. The facade seemed deliberate. But unlike doctors in an operating room, the executioners — standing just four feet away from me — wore no masks.

The Bureau of Prisons had posted signs throughout the facility advising COVID-19 safety measures such as wearing masks, washing hands, and keeping six feet apart. They had also suspended visitation since March in an effort to curb the spread of the virus. But executions, despite being potential super-spreader events, continue.

Shortly after the execution, I tested positive for COVID-19. I was not surprised. I knew when I went to Orlando’s execution that I was stepping into a high-risk environment. Prisons are petri dishes for COVID-19, and executions only add to the risk because they draw hundreds of people who travel from across the country, including correctional and Department of Justice staff, family members of the victim and the accused, lawyers, and press. The prison where all federal executions take place, FCC Terre Haute, was already experiencing an outbreak when the Justice Department resumed federal executions last summer, and there was a spike in cases in the surrounding community of Terre Haute, Indiana, after the first executions in July.

The decision of whether to attend an execution isn’t always simple. Some attendees are correctional staff just doing their jobs. Others may feel obligated if they are friends or family members of the victim or the accused. Spiritual advisors like myself attend at the request of the person being executed, to perform rituals and bring comfort as they leave this world. When Orlando asked me to stand at his deathbed at his moment of death, conduct the rites of passage and bring him comfort through our faith, I could not deny him; I could not say no to a man who would soon be killed. The tenants of my faith demanded as much. Helping him was more important than the risk to myself

I certainly never expected to find myself in the position I was in. In Islam we have no clergy, so I don’t hold an official position or title that would justify such a heavy task. I learned about Orlando when a local Unitarian minister reached out to our community’s listserv, in search of somebody to fill the role of spiritual advisor at Orlando’s request. I agreed to meet with him to give some spiritual guidance in his final days. Together we discussed Islamic funeral rites, and I translated verses from the Quran to make sure he understood the words he would recite at the moment of his death. It was information I already knew from years of study. But there was no way to prepare for what I actually experienced on the day of the execution.

On the morning of Nov. 19, hours before his execution, I met with Orlando one last time. The next time I saw him, he was strapped to a gurney. The many hours in between were spent going through the prison’s cumbersome standard processes for executions, most of which did not seem to take the virus into account. First, I was transported to the execution chamber in a packed van, along with Orlando’s family members. We were not even permitted to open the windows. When we reached the death row unit, we were seated in a small waiting area while officers processed us one by one, using body scanners, metal detectors, and hand wands.

Once the security screening was over, they put us back in the van and drove us to another building, where we waited in another small, crowded, windowless room until about 10:30 p.m., when they took me to the execution chamber. There, I was shuffled from room to room by staff, including some who wore their masks below their noses. There were signs throughout the prison that masks were mandatory, but I did not see anyone enforcing this rule.

The execution itself took only a matter of minutes. I stood in the chamber — a tiny 10 by 12-foot space — with Orlando, an official, and two unmasked executioners. A strip of tape on the floor marked the line I could not cross, two feet away from Orlando’s gurney. When it was time, I began to recite the customary verse we had discussed that morning, meant to bring comfort to the dying. But the executioner cut me off. They administered the shot of pentobarbital, and I watched Orlando recite the Shahada and tell his family that he loved them, and that it would be OK, until he lost consciousness.

After Orlando was pronounced dead, I started to pray over his body, as I had been given permission to do, but almost immediately the unmasked executioner interrupted me and told me to stop praying.

It was difficult to grasp the reality of what had just happened. On the gurney just a few feet away from me, a man I had spoken to that morning was suddenly gone. The execution process was so ritualistic and medicalized, full of rules and protocol. And worst of all, I didn’t feel like I was just a witness — I felt like an accomplice. I was one part of an elaborate machine designed to take a life.

That I contracted COVID-19 in the process was collateral damage. I tested positive on Nov. 27, and I am certain that I contracted it during the execution. I closely followed social distancing guidelines in my day to day life. I even drove back and forth from Bloomington to Terre Haute by myself to and from the execution and the funeral home, instead of staying at a hotel or with friends and risking exposure. My only risk of exposure was the day of the execution, when I was shuffled back and forth from packed vans to crowded rooms, and stood in the death chamber only feet away from unmasked executioners. Thankfully, I am mostly asymptomatic so far. Not everybody will be so lucky.

To date, more than 274,000 Americans have died due to COVID-19. There is no reason to put more people in danger just to kill one person. But the government is still scheduling more executions for December and January — during our second wave of the virus. These executions are a sad reminder of how the criminal legal system dehumanizes the people it touches, especially during a pandemic. So many people are dying already. Why add more death?