Brief of Amicus Curiae Prof. Grossi in Anthropic v. Department of War Case No.: 3:26-cv-01996-RFLof

Document Type

Article

Publication Date

6-26-2026

Citation / Publisher Attribution

Loyola Law School, Los Angeles Legal Studies Research Paper

Abstract

This amicus brief, filed in support of Anthropic's motion for summary judgment in Anthropic PBC v. U.S. Department of War (N.D. Cal.), situates the government's designation of Anthropic as a "supply-chain risk to national security" within a broader constitutional phenomenon the author terms "expressive governance": the Executive's use of routine administrative tools — procurement and contracting authority, funding decisions, regulatory designations, and personnel actions — to penalize disfavored viewpoints while preserving the appearance of ordinary governance. After Anthropic publicly declined to allow its AI models to be used for autonomous lethal weapons or mass surveillance of Americans, the Executive branded the company a national-security risk — a label historically reserved for foreign adversaries — and directed agencies and contractors to sever ties. The brief argues that these actions constitute First Amendment retaliation and viewpoint discrimination under settled doctrine, and that they follow a recurring template deployed against law firms, universities, media organizations, and federal employees who voiced dissenting views. Because expressive governance operates through domains of Executive discretion that ordinarily receive judicial deference, it can evade conventional First Amendment safeguards and produce a systemic chilling effect reaching well beyond any single target. To meet that problem, the brief proposes a principled analytical framework built on three interlocking tools: (1) a clear-statement requirement of specific congressional authorization before discretionary authority may be used in ways that burden expression; (2) burden-shifting once a plaintiff demonstrates a viewpoint-linked pattern and a dependency relationship; and (3) heightened scrutiny through an evidentiary presumption of systemic distortion where the Executive targets "expressive intermediaries" — entities, including large language model providers, that aggregate, filter, or generate speech. The framework recalibrates existing doctrine for the distinctive mechanisms of modern Executive power without creating a new tier of scrutiny, offering courts a workable means of distinguishing legitimate administration from viewpoint retaliation cloaked in discretionary action. The framework developed here draws on the author's broader scholarship on expressive governance and its constitutional implications, including the forthcoming article First Amendment and the Executive Power (forthcoming U.C. Law Journal*), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6190198, and the forthcoming book* First Amendment and Executive Power (Cambridge University Press, forthcoming June 2027), which examine the phenomenon at greater length.

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