Alibaba and the Forty Lobbyists, and the First Amendment

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Volokh, E. (2026, October 27). Alibaba and the Forty Lobbyists, and the First Amendment. Reason. https://reason.com/volokh/2026/10/27/alibaba-and-the-forty-lobbyists-and-the-first-amendment/

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Reason · collected 2026-10-27 · by Eugene Volokh

Quick Summary

Judge Eumi Lee issued a preliminary injunction against a provision in U.S. law, 10 U.S.C. § 4663, which bars the Department of Defense from contracting with any company using lobbyists also employed by Chinese military companies. Alibaba Group Holding Limited, designated as a "Chinese military company," claims this section has caused its lobbyists to withdraw due to fear of losing other clients. The court ruled that Section 4663 likely violates the Free Speech and Petition Clauses because it restricts Alibaba's ability to engage in political speech by limiting their lobbying activities, which are essential for advocating on issues such as technology policy and access to U.S. capital markets.
Written by AI on 2026-10-29, from this article's own text only (the story summary below draws on all the coverage).

AI analysis

Story summary

On February 13, 2026, the United States Department of Defense designated Alibaba Group Holding Limited as a "Chinese military company" (CMC). On June 30, 2026, 10 U.S.C. § 4663 went into effect, prohibiting the Department from contracting with any company that retained the same lobbyist as a CMC. This law led to lobbyists withdrawing their representation of Alibaba due to concerns about losing other clients.

In a significant legal development, Judge Eumi Lee (N.D. Cal.) issued a preliminary injunction on October 27, 2026, concluding that Section 4663 likely violates the First Amendment's Free Speech and Petition Clauses. The judge held that the law failed strict scrutiny because it was not narrowly tailored to prevent CMCs from accessing sensitive military information or influencing national security decisions through lobbyists.

Alibaba is an e-commerce and cloud-computing company serving civilian and commercial markets, providing platforms for U.S. companies to sell products in China and offering cloud services to businesses operating there. The ruling suggests that the law could be unconstitutional as it restricts speech based on mere conjecture rather than concrete evidence of harm.

Written for “Alibaba And The Forty Lobbyists” on 2026-10-29, grounded in this article and the 0 other(s) covering the same event.
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Leaning: leans left for article 110502 (high confidence, 1 verified quote) · logged 2026-10-29

Story

📰 Alibaba And The Forty Lobbyists
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Claims extracted
66
sentences that state something as happening or true
Uncertain
9%
6 of 66 hedged ("reportedly", "may", "according to")
Leaning
Leans left
of the writing, not the subject · beta estimate
Publisher signals
67/100
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Outlets on this story
1
Politics
Same framing elsewhere
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Reason · 985 article(s) · 4 correction(s) detected
Running correction rate · 4 correction(s)

Who wrote this

Eugene Volokh
165 article(s) here · 1 carrying a prediction
🔮 Defendants observe that Alibaba is not completely banned from appearing before the federal government—it could hire more in-house lobbyists or find a firm that is willing to forgo defense contractor clients….
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🔮 When reviewing whether the evidence was sufficient to support the issuance [or extension] of a 258E order, we consider [consistently with the statutory requirements] whether, "by a preponderance of the evidence, together with all permissible inferences," the judge could have found "that the defendant had committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.'"
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2026-10-25 · assertive framing · Open Thread
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2026-10-24 · assertive framing · Open Thread
🔮 The original TRO—the one actually issued on July 20, 2025—named as plaintiffs eleven individuals and organizations who had never been party to the case; named as defendants two officials who were not actually sued; claimed, without evidence, that three post-secondary institutions had already cancelled DEI initiatives or programming because of the act; further declared, again without evidence, that staff at another school had been told not to discuss certain topics, including "historical interpretations involving systemic racism"; misquoted H.B. 1193 as applying to "race or sex stereotyping," "race or sex scapegoating," "critical race theory," and "institutional bias," despite none of these terms' appearing in the act's text; and referenced purported declarations of four individuals who do not appear in the record at all and may not even exist….
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Topics

Alibaba China Section 4663 U.S. the First Amendment

Subjects

Alibaba ORG · 14× China GPE · 3× Department ORG · 3× U.S. GPE · 3× CMC ORG · 2× Alibaba Group Holding Ltd. ORG · 1× Eumi Lee PERSON · 1× N.D. Cal GPE · 1× U.S. Dep't of Defense ORG · 1× the United States Department of Defense ORG · 1×

Narrative

And the court held that the law failed strict scrutiny, because it was not narrowly tailored to the government interests in "(1) … prevent[ing] CMCs 'from accessing sensitive military information through their relationships with lobbyists,' and (2) … ensur[ing] that CMCs 'cannot subtly influence any of [the Department's] decisions related to national security by influencing a lobbyist'": [T]he government cannot impose a restriction on speech based solely on "mere conjecture."
framing: assertive · carried by 1 article(s) · first seen 2026-10-29
🔮 Defendants observe that Alibaba is not completely banned from appearing before the federal government—it could hire more in-house lobbyists or find a firm that is willing to forgo defense contractor clients….
2026-10-29 · Reason
Alibaba and the Forty Lobbyists, and the First Amendment · assertive framing

Claims (66 extracted, 6 hedged)

On February 13, 2026, the United States Department of Defense ("Department") publicly designated Alibaba Group Holding Limited as a "Chinese military company" ("CMC"). asserted
Department → designate → company
On June 30, 2026, 10 U.S.C. § 4663 went into effect, barring the Department from contracting with any company who retained the same lobbyist as a CMC. asserted
who → go → CMC
Alibaba asserts that Section 4663 has caused lobbyists to withdraw from representing Alibaba for fear of losing other clients. asserted
lobbyists → assert → clients
The court issued a preliminary injunction, concluding § 4663 likely violates the Free Speech Clause and the Petition Clause: asserted
§ → issue → Clause
Alibaba is an e-commerce and cloud-computing company that provides products, technology, infrastructure, and services to consumers and businesses for civilian and commercial use. asserted
that → provide → use
Alibaba provides U.S. companies and businesses with a platform to sell their products to consumers in China. asserted
Alibaba → provide → China
Additionally, it provides commercial cloud services to companies, including U.S. companies, operating in China and other countries. asserted
it → provide → China
Alibaba has developed open-source AI models, including Qwen, with a focus on "commercial applications that make it more efficient and secure for businesses to sell goods to consumers in China." asserted
businesses → develop → China
Alibaba is publicly listed on both the New York Stock Exchange and Hong Kong Stock Exchange. asserted
Alibaba → list → Exchange
"Prior to being designated [a CMC], Alibaba had retained over two dozen lobbyists and multiple lobbying firms to represent its interests before Congress and the Executive Branch" [including] … "… the Executive Office of the President, the Federal Communication Commission [("FCC")], the Federal Trade Commission, the Consumer Products Safety Commission, the Department of the Treasury, and [other entities]" …. asserted
Alibaba → designate → Treasury
"They presented Alibaba's views on legislation, rules, regulations, executive orders, and other government policies of commercial interest to the company. asserted
They → present → company
Specifically, they advocated regarding export expansion, small business export promotion, technology policy, access to U.S. capital markets, e-commerce-related issues, consumer-protection laws, and intellectual property." asserted
they → advocate → markets
The Court finds that First Amendment scrutiny applies because Section 4663 regulates speech. asserted
Section → find → speech
By restricting Alibaba's ability to retain lobbyists, Section 4663 functionally restricts its political speech. asserted
Section → restrict → speech
"Discussion of public issues" is "pure speech" that is at "the core of the protection afforded by the First Amendment[.]" asserted
that → afford → Amendment
The First Amendment also protects "[t]he right to petition," that is, "the right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws[.]"Lobbying government officials is therefore an activity fully protected by the First Amendment. asserted
Amendment → protect → Amendment
FTC v. Super. Ct. Trial Laws. Ass'n (1990) ("It is, of course, clear that the association's efforts to … lobby District officials to enact favorable legislation … were activities that were fully protected by the First Amendment.")…. asserted
that → lobby → Amendment
Here, Section 4663 appears to be directed at defense contractors, but its consequences are on Alibaba's speech. asserted
consequences → appear → speech
"[A] government official cannot do indirectly what she is barred from doing directly" by "coerc[ing] a private party to punish or suppress disfavored speech on her behalf." asserted
she → do → behalf
Section 4663's impact falls on the relationship between Alibaba and the third parties crucial to its speech rights. asserted
impact → fall → rights
Thus, the Court finds that Section 4663 burdens Alibaba's speech…. asserted
Section → find → speech
Defendants observe that Alibaba is not completely banned from appearing before the federal government—it could hire more in-house lobbyists or find a firm that is willing to forgo defense contractor clients…. uncertain
that → observe → clients
[But] Alibaba is unlikely to find a lobbyist willing to forgo any clients who might want to contract with the Department. uncertain
who → find → Department
{The statute applies to defense contractors who contract with "entities"—in other words, lobbying firms—who also contract with CMCs. asserted
who → apply → CMCs
Defense contractors would not risk their ability to enter into a contract with the federal government when there are plenty of capable lobbying firms available. asserted
contractors → risk → firms
The lobbying firm then must choose. asserted
firm → choose → ?
One or more of its lobbyists can choose to represent Alibaba, but then the entire lobbying firm must forgo representing defense contractors. asserted
firm → choose → contractors
The only rational choice for a lobbying firm is to stop representing Alibaba.} [Alibaba also] represents that it cannot hire the number of experienced in-house lobbyists needed to address the federal government for all its interests…. asserted
it → lobby → interests
The reduction to Alibaba's speech is sufficient to demonstrate a colorable First Amendment claim…. uncertain
reduction → demonstrate → claim
The court then concluded that the law was subject to strict scrutiny: "Content-based regulations are subject to the most exacting scrutiny because 'the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" asserted
government → conclude → message
In examining a statute, courts must also examine "restrictions distinguishing among different speakers, allowing speech by some but not others." asserted
courts → examine → some
"Speech restrictions based on the identity of the speaker are all too often simply a means to control content." asserted
restrictions → base → content
Thus, identity-based regulations may "demand strict scrutiny when they reflect the Government's preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say)." uncertain
speakers → base → what
… {Section 4663 is not a content-based restriction…. asserted
Section → base → ?
Section 4663 operates based solely on whether a CMC is involved. asserted
CMC → operate → ?
What the CMC (or non-CMC) plans to say does not affect whether Section 4663 applies.} asserted
Section → plan → What
[But] Section 4663 is a speaker-based restriction on speech—it is only applicable if a CMC seeks to retain a lobbyist. asserted
CMC → base → lobbyist
As a speaker-based restriction on political speech, Section 4663 is subject to strict scrutiny. asserted
Section → base → scrutiny
Defendants assert that Section 4663 should be considered under intermediate scrutiny, because Alibaba's "differential treatment" is justified by its "special characteristic[ ]," namely the potential involvement of a foreign adversary. asserted
treatment → assert → adversary
Defendants again rely on TikTok, where the Supreme Court applied intermediate scrutiny despite finding that the divestiture statute was a speaker-based restriction, because the differential treatment was due to a content-neutral reason, namely TikTok's susceptibility to foreign control. asserted
treatment → rely → control
…and 26 more, not listed.
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