Expressive governance goes to court in the Northern District

On July 30, Judge Rita F. Lin is set to hear argument on summary judgment in Anthropic PBC v. U.S. Department of War, No. 3:26-cv-01996 (N.D. Cal.). The case asks a question that should unsettle lawyers across the political spectrum: may the executive branch use the ordinary machinery of administration--here, a procurement designation--to punish a private party for its viewpoint, so long as the punishment is dressed in the vocabulary of national security?

The facts are stark. Anthropic, the San Francisco-based AI company, declined--consistent with its published usage policy--to permit its models to be deployed for autonomous lethal targeting and mass surveillance of Americans. The company offered to help the government transition to another provider. The Department of War responded by designating Anthropic a "Supply-Chain Risk to National Security" and directing that no contractor, supplier, or partner doing business with the United States military may conduct any commercial activity with the company. In March, Judge Lin preliminarily enjoined the designation, finding a likelihood of success on Anthropic's First Amendment retaliation claim. The July hearing will test whether that conclusion survives a full record.

Doctrinally, the case sits at the intersection of two settled propositions and one unsettled one. The settled propositions come from NRA v. Vullo (2024), where a unanimous Supreme Court reaffirmed that while government officials may criticize views they dislike, they may not wield state power to punish or suppress disfavored expression, and from the retaliation framework of Hartman v. Moore and Nieves v. Bartlett, which asks whether a forbidden motive drove the adverse action and whether any claimed neutral grounds would independently have sufficed.

The unsettled proposition is what happens when the coercion is not informal jawboning, as in Vullo, but a formal administrative act--a designation issued under color of statutory authority, wrapped in a national-security rationale, and executed through instruments courts routinely treat with deference. That is the harder case, and it is the case courts will increasingly face. In work I have been developing over several years, I call the phenomenon "expressive governance": the use of routine administrative instruments--procurement, funding, licensing, regulatory designations--to penalize disfavored viewpoints while preserving the appearance of ordinary administration. The pattern is not confined to one administration or one party. The same analysis that condemns the Anthropic designation condemns New York's pressure campaign against insurers doing business with the NRA, and it would condemn a blue-state governor who stripped contracts from a company for declining to endorse a favored policy agenda.

The difficulty is that existing doctrine polices motive but not method. Retaliation claims turn on smoking-gun evidence of animus, which sophisticated administrations learn not to create. What is needed--and what Anthropic gives the courts an occasion to build--is a framework addressed to the instruments themselves. I have proposed three tools.

First, a clear-statement canon addressed to statutory reach. Before a general procurement or designation authority may be applied to a domestic expressive target, courts should ask whether Congress clearly authorized that application at all. The demand is not for clear authority to discriminate by viewpoint--Congress could not supply that--but for clarity that the instrument reaches expressive targets in the first place. Where Congress has not spoken clearly, the executive should not be presumed to hold a power with this capacity for abuse.

Second, a burden-shifting rule. When a challenger shows a viewpoint-linked pattern of adverse action together with an exploitable dependency relationship--a target that relies on government contracts, funding, or licensure--the burden should shift to the government to produce the contemporaneous administrative record supporting its stated rationale. This answers the deference objection directly: it asks the government only for the record it should already have if the security rationale is genuine, and it leaves substantive procurement choices where they belong.

Third, a presumption of systemic distortion where the target is an expressive intermediary--a platform, publisher or infrastructure provider whose treatment shapes the speech of many others. Retaliation against an intermediary does not merely injure one speaker; it distorts the expressive ecosystem downstream and the doctrine should account for that amplified harm.

None of this asks courts to second-guess genuine security judgments. It asks them to do what Marbury has always required: to say what the law is, even when the executive invokes labels designed to end the conversation. As Zivotofsky v. Clinton confirms, the words "national security" do not convert a constitutional question into a political one.

California lawyers have a particular stake in the answer. The technology companies concentrated in this state are precisely the dependent, expressive intermediaries most exposed to expressive governance--reliant on federal contracts and approvals and increasingly expected to take public positions on how their products may be used. Whatever Judge Lin decides, counsel advising these clients will need to understand how far a refusal to deal on ethical grounds is protected, what record the government must build before wielding a designation and what evidence a targeted company should preserve from day one. The July 30 argument, and the appellate review that will surely follow, will begin to supply those answers.

The First Amendment's promise has never depended on the government's choice of weapon. If viewpoint punishment is unconstitutional when delivered by press release, it does not become constitutional when delivered by designation. That is the principle the Northern District will test this month--and the principle on which, whichever party holds power next, all of us should hope the courts hold firm.

Disclosure: The author filed an amicus curiae brief in support of the plaintiff in the district court proceedings discussed above.