By: Yang Jianli
I have a fresh warning about the ongoing corruption of democratic values in the United States in service of the political interests of the Chinese Communist Party. In essence, one of America’s leading law firms is arguing that there would be “no public benefit” to ending internet giant Tencent’s practice of engaging in massive pro-CCP censorship of WeChat in the United States, specifically California. Put another way, a leading American institution is arguing against the benefits of free speech—at least among California’s WeChat users, who are mostly Chinese speakers. If it is true that, as Judge Learned Hand once said, “liberty lies in the hearts of men and women,” and if it is true that “when it dies there, no constitution, no law, no court can even do much to help it,” the fact that a premier American law firm is making this argument—in service of pro-CCP censorship in the United States—must be seen as another sign that American democracy is in peril.
By way of background, my organization, Citizen Power Initiatives for China, is currently suing Tencent (WeChat’s parent company) in a California court. Among our claims is that Tencent’s practice of engaging in large-scale pro-CCP censorship of California WeChat users violates California law in various ways. One of the forms of relief we ask for is an injunction against such censorship. Tencent, represented by one of America’s most prestigious law firms, Gibson Dunn & Crutcher LLP, has moved to compel arbitration. But California has a rule, known as the McGill rule, that arbitration agreements that prohibit requests for injunctions that benefit the public are unlawful. It is Gibson Dunn’s argument in avoidance of this rule to which I wish to draw your attention.
Their argument is not that the arbitration agreement here would allow the arbitrator to enjoin the censorship and surveillance practices we complain of. Such an argument would be relatively technical, and would not prompt me to write this article.
Instead, in Gibson Dunn’s words, allowing California WeChat users to engage in freer political speech “only benefits a specific, narrow group of people who seek to use WeChat to discuss Chinese politics[,]” such that the “general public, including those who do not use WeChat at all and those who use WeChat but do not engage in the narrow class of political speech address in the Complaint, will get no benefits whatsoever from the requested injunction.”
Viewed in isolation, such a claim might be seen as just one of so many other contentious claims made in the heat of litigation. But we believe it should be seen as something much more concerning, given the well-documented phenomenon of American self-censorship in the face of CCP power. Indeed, this argument goes a step beyond that trend. Instead of declining to speak in a way that offends the CCP, it affirmatively argues that California WeChat users, who are mainly of Chinese descent, are not only uninterested in discussing political and geopolitical matters, but that their discussion has no public value. In fact, it is worse than that, because pro-CCP speech is allowed on WeChat, such that the claim is essentially that pro-democracy speech by California’s WeChat users has no public value.
Needless to say, as a person of Chinese descent who believes deeply in democratic ideals like free speech, I find this argument personally offensive. More to the point of this article, though, I think it is among the more concerning examples of how the CCP has successfully corrupted those ideals, even on American soil, and even in one of America’s leading law firms.
Some people have compared our case to Trump’s lawsuits against American big Techs. But they are intrinsically different. To grasp the differences, imagine if Twitter were essential to the daily life of English-speaking Americans, but banned users who espoused support for the Democratic Party, while giving their private information to the Republican Party (or vice versa). Whatever one’s views of the content moderation policies of US tech companies, no one alleges that they are engaged in such oppressively partisan conduct. Yet such conduct is not so different from what we allege Tencent (WeChat) is doing in favor of the Chinese Communist Party—including with respect to Chinese-speaking Americans in California.
Twitter and Tencent (WeChat) may both be private entities, but practically speaking the latter is less of one. Indeed, they are in a sense opposite: Twitter is so free of the state that it can kick the paramount political leader of its own home country off its platform without much fear of government retribution. Tencent, by contrast, is so beholden to the state that it cannot survive unless it demonstrates unconditional political obedience.
Our lawsuit is in its early stages, and we are confident that the court itself will not agree with the argument put forth by Tencent and Gibson Dunn. But I urge readers to not only pay attention to this matter, but to draw the attention of like-minded people to it. If there is one thing these last few years have taught those of us who believe in democracy, it is that nowhere is democracy self-executing, and that it depends, everywhere it hopes to flourish, on the daily willingness of its adherents to defend its ideals. I hope you join me in defending those ideals in this instance.
Jianli Yang
Founder President of Citizen Power Initiatives for China, Former Political Prisoner of China, Author of “For Us, the Living: A Journey to Shine the Light on Truth.”