Judge Rules Pentagon Violated Constitutional Rights in Anthropic Case
When Government Punishes Speech and Calls It “Risk Management”
By branding a trusted contractor a “supply chain risk” to silence criticism, the government stepped outside lawful authority into plain usurpation.
The matter, as I understand it, is simple in its core though wrapped in modern dress. A technology company, having enjoyed high security clearance and official praise, entered into public dispute with the Department of Defense about the government’s use of its models. Thereafter, the company was suddenly designated a “supply chain risk,” contracts were curtailed, and penalties followed. A federal judge has now declared these measures “illegal and baseless,” finding violations of the First Amendment and of the Due Process Clause of the Fifth, because liberty interests were taken without prior notice or a fair hearing. Behind the unfamiliar machinery of agencies and algorithms, I see an old question: what is political power, and on what terms is it held in trust?
When I wrote the “Second Treatise of Government,” I defined political power as a right of making laws with penalties only for the public good, and for the preservation of the people’s lives, liberties, and estates. Anything that does not fairly fall under that description requires a strict justification, or else it is not government but force. Here, by the judge’s account, there was “no discussion” in the record of the company’s untrustworthiness or of any real supply chain danger until after its dispute with the department became public. If that be true, the state did not first discover a risk and then endure criticism as the cost of managing it; it discovered criticism, and then invented a risk as the pretext for punishing it.
In every society that pretends to be free, the burden lies on power, not on liberty. Those who claim a right to rule others must show that free and equal persons could have consented to such authority for their protection. To label a trusted partner a threat without evidence, and precisely when it exercises “constitutionally protected expressive activities,” as the judge puts it, reverses that burden. The government here did not justify its action by reasons open to the understanding of all; it offered a bare assertion of danger, coupled with a remarkable inability to say whether cancelling a contract to “stop public criticism of the President” would offend the very Constitution it swore to uphold.
Such conduct trespasses the law of nature, which is nothing else but reason, binding rulers as well as subjects. That law teaches, as I argued long ago, that no one ought to harm another in his life, health, liberty, or possessions. To strip a company of its good name, to imperil its business, and to shut the ordinary doors of commerce against it, not for fraud or treason but for public disagreement, is to attack its property in the broad sense: its estate, its liberty to speak, and the trust it has cultivated. When this is done without “sufficient pre-deprivation notice or opportunity to be heard,” it is not merely a defect of paperwork; it is an injury inflicted without that impartial judge which separates civil society from a state of war.
The danger grows sharper when the same hand that takes the action presumes to judge its own cause. Here the executive branch both initiated the punishment and claimed the authority to define, in the first instance, what counts as a “supply chain risk,” and it did so in the shadow of a public quarrel with the affected party. If there is no standing rule by which a firm may know beforehand what conduct will see it denounced as a risk, and no independent tribunal before the blow falls, then the people live not under law but under discretion, which is only a softer name for arbitrary power.
Nor is this only a question of commerce. It touches upon that jurisdiction over opinion which, in my “Letter Concerning Toleration,” I denied to the magistrate. To retaliate against a speaker, corporate or individual, in order to “stop public criticism” is to attempt by worldly penalties what can be obtained only by argument: the agreement of the understanding with the evidence. A ruler who thus confounds civil interests with the management of reputation forgets that he is set over men who are the workmanship of one Maker, sent into the world about His business, and answerable first to Him for the use of their reason.
Some will object that questions of national defense and supply chains demand a wide prerogative, to act swiftly, even harshly, for the common safety. I grant that emergencies sometimes require the executive to move beyond the letter of existing rules. Here, by contrast, the measure has been judged by an independent court to be “illegal and baseless,” its stated rationale unsupported by any record of risk, and its true motive bound up with displeasure at criticism. Power so exercised is not prudence in danger but passion in office, and tends, if not checked, toward that long train of abuses by which free peoples are gradually accustomed to servitude.
The judge has now vacated the designation and declared the violation; that is one lawful form of resistance, and it is enough for the present argument. Society does not dissolve because a particular exercise of power is corrected; indeed, it is preserved by such corrections. But every citizen who cares for liberty should mark the principle revealed here: whenever a government punishes speech under the disguise of technical regulation, and cannot show a clear law, impartial procedures, and genuine public necessity, it ceases for that moment to act as a trustee of the people and behaves instead as an adversary. When power so transforms itself, the people are entitled, by reason and by nature’s law, to say, quietly but firmly: thus far, and no farther.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — Absolute arbitrary power is worse than the state of nature it claims to cure; judge any concentration of discretion by whether it leaves those subject to it a known standing law and an impartial judge.
- A Letter Concerning Toleration — Belief cannot be compelled; force operates on the body, but belief lives in the inward persuasion of the mind, which coercion cannot reach.