Litigating U.S. National Security Measures Utilizing
Economic Tort Claims
Joel Slawotsky*
ABSTRACT
The decision to engage in commercial or contractual relations depends largely
on information, which is sometimes sourced from competitors, raising the prospect
of self-interested spread of false or recklessly unverified information. Competitors
are incentivized to impute negative characteristics to business rivals such as claim-
ing the rival’s products or services are defective. False claims made by competitors
may subject the competitor to suits for damages based on disparagement. In the
context of the United States-China hegemonic rivalry, accusations relating to the
competitor nation’s corporate entities’ allegedly defective product or service (e.g.,
a national security risk) might be motivated by legitimate perceptions of a national
security threat or alternatively, driven by economic nationalism or protectionism.
Falsely or recklessly alleging business entities are a national security risk may
constitute the tort of commercial disparagement which allows injured parties to file
claims for compensation for damages proximately caused by the disparaging state-
ments. This paper seeks to contribute to the literature by raising the potential use of
economic tort theory to litigate national security measures instituted by governments
claiming a competitor nation’s economic actors’ products or services are defective,
i.e., constitute a national security threat. Commercial disparagement claims may
serve as a vehicle to strike a balance between legitimate security concerns and over-
reach. This paper breaks new ground as no existing literature exists regarding a
commercial disparagement claim since in the past, national security was conceptual-
ized as defense of borders and territorial integrity. Today, national security impli-
cates economic, technological, and ideological power which are intertwined with
commercial activities and led by corporations whose products and services are sub-
ject to disparaging statements. The topic is explored through the lens of a measure
against a Chinese entity based upon an alleged national security threat and the
Chinese business seeking damages using an economic tort theory to recover present
and future losses caused by the allegedly disparaging statement.
We’re dealing with an adversary, a competitor, in China stronger than the Soviet
Union was in the 1940s, ‘50s, ‘60s, ‘70s and ‘80s. . . . Our companies and tech
experts are competing on AI and biotech and quantum mathematics. . . . All those
technological advances will lead to a new generation of military technology.
Our two militaries are vying for military supremacy — who’s going to be the
* © 2025, Joel Slawotsky.
389
most powerful in the most important, strategic part of the world, which is the
Indo-Pacific.
1
I. INTRODUCTION
An era of hegemonic rivalry between the United States and China has com-
menced, proximately causing the derailment of the post-World War II global gover-
nance architecture and initiating a transformational big power rivalry.
2
While armed
conflict remains integral in international affairs, as evinced by Russia’s invasion of
Ukraine, great power rivalry is no longer ensconced exclusively in strictly military
terms.
3
In addition, EU Members are increasingly linking China’s support of Russia to a national security
threat. See, e.g., Sweden’s 2024 National Security Strategy specifically highlighting China’s alliance
with Russia as a national security threat to Sweden. GOV’T OFF. OF SWED., NAT’L SEC. STRATEGY, at 19,
https://perma.cc/YM3D-9RKH (“China’s deepening partnership with Russia and indirect support for
Russia’s war of aggression against Ukraine contribute to the serious security situation in Europe. China
has been moving in an increasingly totalitarian direction.”).
The U.S.-China hegemonic battle is not limited exclusively to “hard-core”
armed conflict, but is rather an “unrestricted” struggle. This unrestricted conflict
encompasses weakening an adversary by all means necessary, such as exploiting
social media, leveraging emerging technologies, leveraging economic aid for influ-
ence, and even encouraging pharmaceutical abuse in an enemy nation.
4
Compare QIAO LIANG & WANG XIANGSUI, (UNRESTRICTED WARFARE) (1999) (People’s Liberation
Army Literature and Arts Publishing House) (arguing that war now encompasses the use of media,
international law, culture, drugs, and various other methods leveraging economic, technological and
ideological power as legitimate tools to undermine and weaken enemy nations), with C
OUNS. OF THE EUR.
UNION, LEGIS. ACTS AND OTHER INSTRUMENTS, https://perma.cc/Q8XX-YM4W (defining war in the
1950s as involving implements such as rifles, bombs, tanks, explosives, aircraft, and electronic
equipment). There is growing recognition that emerging technologies have dual-uses which are directly
applicable to defense. See UNISYS, INTRA-COMMUNITY TRANSFERS OF DEFENCE PRODUCTS 11 (2005).
Traditionally, national security was primarily related to defending physical
borders from invasion, i.e., preserving territorial integrity. Today, however,
defending the national bastion encompasses not only military strength but
1. *Reichman University, Herzliya, Israel jslawotsky@runi.ac.il. Former Law Clerk to the Hon.
Charles H. Tenney, U.S.D.J., S.D.N.Y. and AV-rated litigator at Dentons.
Bill Gertz, U.S. Engaged in ‘Battle of Ideas’ with Communist China, U.S. Ambassador Says,
WASHINGTON TIMES (Feb. 26, 2024).
2. This Article acknowledges China’s stated position that it does not seek to displace the U.S. as the
dominant global power. China’s Paramount Leader, Xi Jinping, has stated, “China will never seek
hegemony, expansion or sphere of influence.” Keynote Address at CPC and World Political Parties
Summit (July 7, 2021). However, world history and geo-strategic realism militate toward concluding
that powerful sovereigns do endeavor (or eventually decide) to leverage structural power, project
dominance, and seek regional if not global hegemony. China’s regional if not global ambitions are
manifestly clear, which in no way constitutes a critique of China. Inherently, and within human nature,
any nation so enabled wants to rule the world. See Lutz-Christian Wolff, Legal Responses to China’s
“Belt and Road” Initiative: Necessary, Possible or Pointless Exercise?, 29 TRANSNATIONAL L. &
CONTEMP. PROBS. 249, 256 (2020) (“It would, in fact, be naı
¨ve to believe that China is not pursuing its
own geopolitical BRI goals.”); Joel Slawotsky, Crossing the Rubicon: Conceptualizing National
Security to Vanquish Competition, 2 L. SCI. 69, 76–77 (2023) (outlining Chinese stratagems to project
Chinese influence and exercise dominion including Xi Jinping’s call to Persian Gulf oil producers to
price their oil in Renminbi rather than the U.S. Dollar).
3.
4.
390 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 15:389
economic power; dominating frontier technologies like AI, robotics, algorithmic
manipulation of social media, digital currencies and digital money institutions
and exchanges, and globalized communication has raised the importance of ideo-
logical power. Sovereigns can influence elections, hack data, interfere with energy,
finance, and communications, demoralize an enemy state through social media, and
degrade an adversary through an array of non-military “weaponry.”
Even soft-power and notions of governance and values are considered a
component of defending national security.
“ ”
Some states seek to undermine this order and give effect to their revisionist
notions of spheres of influence. They view human rights, civil liberties and
democratic participation as a threat to their power. As part of hybrid strategies,
they are increasingly engaging in targeted attacks on the freedom of other
states, and are trying to interfere in political processes, public debate and elec-
tions in those states.
5
THE GERMAN FED. GOV’T, INTEGRATED SECURITY FOR GERMANY 23 (2023) https://perma.cc/
K2H5-GYTQ
[hereinafter GERMAN NATIONAL SECURITY STRATEGY].
Furthermore, all of the civilian power spheres, economic, technological, and ideo-
logical, have dual-uses and are therefore inextricably linked to military power.
6
Significantly, large and strategic corporations constitute the leading global
actors with respect to economic, technological, and ideological power, and are
the primary entities which develop, innovate, and market these power levers. Due
to both the capacity to facilitate creation of huge profitable economic sectors as
well as their usefulness for military strength, frontier technologies in particular
have become an increasingly important part of national security. The current era
is also seeing a return to economic nationalism, industrial policy, and a recogni-
tion that private corporations are significant players in defending national inter-
ests as well as the potential use by governments to leverage domestic businesses
as an “offensive weapon.”
7
Accordingly, corporations constitute quintessential (if
not paramount) national security assets and are inextricably intertwined with
commercial conduct which focuses on power spheres associated with global
dominance: economic, technological, and ideological strength.
8
Illustrative of this phenomenon, the U.S.-China competition is closely linked
to commercial conduct and, significantly, corporations are competing for market
share and global dominance. From electric vehicles, mobile 5G, social media,
5.
6. The civilian power spheres also directly impact military power since economic heft empowers the
building and maintaining of a powerful military, technologies are dual-use, and ideology can be used to
de-moralize an adversary. See infra Part V C 1.
7. Rachel Brewster, A New Global Corporate Regulatory Power?: Market Entry as the Basis for
Prescriptive Jurisdiction , 2023 UNIV. CHI. LEGAL F. 59, 60 (2024) (“We have entered an era where
governments are embracing more unilateral tools to resist foreign economic influence and reinvigorating
national industrial polices. While states may directly spar with each other, they are also seeking control
over private firms and their engagement in other states’ economies.”).
8. See Joel Slawotsky, The Fusion of Ideology, Technology and Economic Power: Implications of the
Emerging United States National Security Conceptualization, 20 CHINESE J. INT’L L. 3 (2021).
2025] LITIGATING U.S. NATIONAL SECURITY MEASURES 391
