anti-Chinese memory chips blog & report weren't commercial speech despite alleged competitor funding

Yangtze Memory Technologies, Inc. v. Micron Technology, Inc., 2026 WL 2350276, No. 1:25-cv-01795 (CJN) (D.D.C. Aug. 13, 2026)

On the one hand, there’s a risk of suppressing valuable noncommercial speech if we apply the Lanham Act too broadly; on the other, there’s a risk of allowing false advertisers to launder claims through supposedly noncommercial speakers if we interpret it too narrowly. Here, the court finds the political valence of anti-China speech relevant to determining that the alleged falsity was not made in commercial speech.

YMTC alleged that defendants ran an astroturfing campaign that discouraged customers from purchasing memory chips from YMTC due to its connections to the Chinese government. Defendant Micron competes against YMTC in the market for memory chips. It allegedly worked with defendant DCI, a public affairs firm, “to erect a sophisticated ... ‘astroturfing’ campaign ... to damage YMTC’s reputation and business for their own profit.” It allegedly funded a website called China Tech Threat that “purport[ed] to be focused on policy” but was actually a front “to disseminate favorable messages about Micron’s products and disparaging messages about YMTC’s competing products.”

For example, CTT published a blog post, “As YMTC Booms, China Aims to Dominate Flash Memory Industry,” asserting that YMTC was associated with “criminal activity, including a Social Security spoofing scam, identity theft and cyber extortion.” A June 2022 report, “Silicon Sellout: How Apple’s Partnership with Chinese Military Chip Maker YMTC Threatens American National Security,” implored “Apple to voluntarily end its partnership with YMTC” and “source its chips from existing suppliers like Micron.” [Yeah, if the funding facts are as stated, that seems like commercial speech to me.]

Apple allegedly suspended its plans to purchase chips from YMTC in October 2022, resulting in “hundreds of millions of dollars in lost revenue.” The astroturfing campaign also allegedly “inflicted lasting damage on YMTC’s reputation and commercial standing across the technology sector.”

The court found Article III standing because YMTC pled “a plausible chain of events that links DCI’s actions to YMTC’s injuries.” DCI argued that other sources gave the same warnings, “[b]ut the existence of, perhaps, an equally important player in the story does not erase [DCI]’s role.”

However, the blog post and report were not actionable under the Lanham Act, despite including apparently factual claims such as “YMTC chips equipped with spyware and installed on Apple devices could funnel collected data back to Beijing” and “Electronics with embedded chips are enabled with a ‘kill switch’ .... Such features, under Chinese military production, could be enabled ... to shut down remotely by an unauthorized Chinese government actor.”

The court primarily reasoned that the 2021 blog post and 2022 report do not constitute “expression related solely to the economic interests of the speaker and its audience,” which strikes me as a way to insulate all factual claims from scrutiny given that we’re at a point in which anything can be politicized. But:

The blog post warned about the risk of China overtaking the United States in the flash memory industry and accordingly encouraged the Trump administration “to implement controls to stop the flow of [semiconductor manufacturing equipment] to China.” Given this clear focus on national security concerns, the post was not primarily—much less solely—about economic interests. As for the report, although it at least arguably contained some references to economic competitors in the chip industry, the vast majority of it either outlined the foreign policy risks of the deal between YMTC and Apple or proposed potential solutions to mitigate those risks. The report mentioned that the deal may have economic implications, but it was far from solely focused on that aspect.

The court also thought that the post and report weren’t “speech proposing a commercial transaction,” and that “this non-advertising medium strongly counsels against YMTC’s position.” (Just because astroturfing isn’t identified as a conventional ad shouldn’t make it ok!) “[E]ven if Micron, through DCI and China Tech Threat, would potentially benefit financially from seeing its competitor’s reputation suffer, that general economic motivation cannot alone transform the specific means at issue here—a blog post [and report] flagging national security concerns—into commercial speech.”

What about references to specific products, also part of the commercial speech inquiry? Well, discussing the potential risks of “YMTC chips” “generally” aren’t enough to constitute a reference to a specific product. That conclusion seems quite bizarre. An entity that sold flavored condoms, different sizes of condoms, lubricated and unlubricated condoms, and then touted condoms generally is making a specific product reference (Young of Bolger v. Young made Trojans, and also wanted to send flyers promoting condoms generally as well as Trojans specifically). And targeting a specific producer seems certainly within the Lanham Act’s concerns (see also “commercial activities” in 43(a)(1)(B)).

Ultimately, the court concluded, the publications are “political speech expressing a point of view, not commercial speech attempting to promote a good or service.” They called for government—not consumer—action. “YMTC’s attempt to focus on only four statements out of a 20-page report and one sentence out of a two-page blog post cannot overcome the overwhelmingly political nature of the publications.” This also distinguished Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021), which concerned a review guide “that compares and reviews nutritional supplements sold in the direct marketing industry”— “a much more commercial publication.” [Again, this distinction seems wrong to me. The issue in Ariix wasn’t that publications about nutritional supplements are inherently more likely to be commercial speech—plenty of such speech is noncommercial. It was the secret control by a funder who was spoken of well in the guides. And there was no showing in Ariix that the disparaging matter was a significant part of the guides, which covered lots of different supplements.]