First, some of the good news: certain AI models—currently Anthropic’s Mythos, but surely others are well on their way if they haven’t already arrived—turn out to be really good at finding cybersecurity vulnerabilities. As Anthropic itself reported:

During our testing, we found that Mythos Preview is capable of identifying and then exploiting zero-day vulnerabilities in every major operating system and every major web browser when directed by a user to do so. The vulnerabilities it finds are often subtle or difficult to detect. Many of them are ten or twenty years old, with the oldest we have found so far being a now-patched 27-year-old bug in OpenBSD—an operating system known primarily for its security.

That’s quite the tool, if it can help find vulnerabilities so that they can be patched.

But it’s also quite the tool to help find vulnerabilities so that they can be exploited. Like so many tools, including technological tools, whether they are good or bad depends entirely in how they are used. A hammer is a really helpful tool for building things, but it also smashes windows. And with this news, AI now has the capability for some really destructive uses.

To try to prevent them, Anthropic is working with some of the largest tech companies in the world to let them use a preview of its model on their own software to help QA them and proactively patch vulnerabilities. As Casey Newton reports:

Anthropic announced Mythos alongside Project Glasswing, an initiative with more than 40 of the world’s biggest tech companies that will see Anthropic grant early access to the model to find and patch vulnerabilities across many of the world’s most important systems. Launch partners in the coalition include Apple, Google, Microsoft, Cisco and Broadcom.

They’ll be tasked with scanning and patching their own systems along with the critical open-source systems that modern digital infrastructure depends on. Anthropic is giving participants $100 million in usage credits for Mythos, and donating another $4 million to open-source security efforts.

This sounds like a great program. It also should be noted that the Mythos model is not consumer-grade AI; it takes expensive, dedicated infrastructure to run, which means that, at least for the moment, there’s not an imminent danger of it being misused. But trouble is nevertheless brewing, and someday it will be here, which raises certain questions, like:

(A) What about other AI models, which will inevitably be similarly powerful? What if they are produced by less ethical companies, who would have no compunction against rogue actors using their systems in destructive ways that Project Glasswing won’t have intercepted?

(B) And what about every single legacy technology system in use, which Project Glasswing is unlikely to be able to retroactively fix? Large, resourced companies may be able to weather the on-coming storm, but what about your local dentist office? Or a hospital? Municipal IT systems? Networked technology is everywhere, and these smaller businesses and institutions are likely to both have older, unpatched technology and also fewer resources to update and secure them, or deal with the consequences of a hack, which can be devastating for the business or the people they serve.

On the other hand, there does seem to be one other bit of good news with this revelation: governments, including that of the United States, have often engaged in the dubious practice of hording zero-days, or collecting information about vulnerabilities that they then kept secret so that they could exploit them themselves by using them on an adversary. For those unfamiliar, “zero-day” refers to a vulnerability that has yet to be disclosed, which is why it’s on “day zero,” or before the first day of it being a known vulnerability that could now be fixed.

Mythos’s capabilities would seem to obviate this strategy, because suddenly the stash of unknown vulnerabilities isn’t really going to be such a secret, since anyone using the model will be able to find them. Mythos’s existence changes the balance of interests, where the stronger national security play by the government would be to disclose any discovered vulnerability to the vendor as soon as possible so that they can be patched and our nation’s systems more secured. Arguably that was always the better national security play, but now there’s definitely no upside to trying to keep them secret because it now definitely needs to be presumed that adversaries will be able to find and exploit them. They’ll have the tools.

With these AI models we’re going to need to presume that everyone is going to have the tools to know about every vulnerability. Up to now there has been at least the illusion of some security, because vulnerabilities couldn’t be exploited if no one knew about them, and finding vulnerabilities is hard. But now that it will be easy, the risk to the nation’s cybersecurity is greater than we have ever before contended with.

It is also not really a great harbinger that we know about Mythos because… a copy of the software got leaked. It’s just the software that was leaked and not the models it uses to tune its “reasoning,” which means that anyone trying to now build their own Mythos is still missing an important piece if they want to mimic its full capabilities, but they would have a lot. Which is probably why Anthropic has been sending DMCA takedown notices to have the leaked software removed from the Internet.

But doing so raises a related issue: the role of copyright law when it comes to “vibe coding,” or “having an AI system write the software rather than a programmer, just by instructing it on what to do. It’s especially important in light of the cybersecurity concerns always raised by software (and including vibe-coded software, as we’re having to trust that what’s produced does not have vulnerabilities). Copyright requires a human author, which raises the question: can software written by an AI be copyrightable? The answer would appear to be no, unless there was a great deal of creative effort on the part of a human being to instruct the AI or modify the output. But as Ed Lee chronicled, per Anthropic itself, even its own software (“pretty much 100%”) is being written by AI. And if that’s the case, then Anthropic has no business sending takedown notices for its software because DMCA takedown notices are only for demanding the removal of copyrighted works, which, it would appear, Anthropic’s own code does not qualify for.

But maybe it’s better if software stops being subject to copyright. “Vibe coding,” is becoming increasingly efficient, to the point that there is likely no need for copyright to incentivize its authorship. Instead, what public policy really needs to emphasize is that whatever software is produced is secure software. But in many ways copyright obstructs that goal, like through its lengthy terms, which mean that while a copyright holder might not still be maintaining its older software, no one else can maintain and patch it either, without potentially infringing the software’s copyright.  Or through its privileged secrecy (unusually for copyright, when it comes to software you don’t actually have to disclose all the actual code to register a copyright in it!) and other powers to lock out security research efforts, like through Section 1201 of the DMCA, when such efforts aren’t specifically supported by the developer–assuming the developer supports any security testing at all, as right now there aren’t necessarily the incentives to make them care about it.  Instead public policy has given them the ability, like with copyright, to escape oversight of the security of their software products, even as those products end up embedded in more and more of our lives.

It’s time to change that focus and get copyright out of the way of making software security our top policy priority.

And fast.

The Supreme Court has now issued its decision in Cox Communications v. Sony Music Entertainment. This was a case where Cox, a broadband provider, had been held liable for the alleged copyright infringements of its users, in this case via filesharing. It appealed, arguing that such secondary liability was not something that copyright law allowed. And the Supreme Court has now agreed. Cox won its appeal, in a pretty big way. But the implications may be even bigger, for copyright law, but especially for the Internet because, once again, the Court has limited secondary liability for platforms—and that’s a big deal for Internet law.

Setting the stage

While direct liability is about holding a wrongdoer responsible for their actions, secondary liability is about holding someone else liable for the wrongdoer’s actions. It’s a concept that comes from common law, but it has historically been limited in its applicability because it can be so chilling to helpful behaviors we might want to encourage—like platforms providing Internet services—when engaging in them can put the helper on the hook if someone they helped does something wrong. Our sense of justice and fair play also tends to want there to be more culpability on the part of the helper before it would seem right to subject them to shared liability with whomever they helped.

But that restraint has been diminishing in modern jurisprudence. In the copyright space it started to be lost a century ago, as some expansive theories of secondary copyright liability began to take hold allowing defendants to be held liable for other people’s infringements. Although the Supreme Court’s 1984 Sony v. Universal Music decision held the line on this expansion, where Sony was not held liable for the fact that people could use its VCRs to infringe copyrights because the VCR was also capable of substantial non-infringing uses as well, liability theories continued to expand up through the Court’s 2005 decision in MGM Studios v. Grokster, where it found Grokster liable for other people’s filesharing, and beyond. This case of Cox v. Sony is one of several similar cases that have been working their way through lower courts, where broadband ISPs were being held liable for the filesharing of their users using secondary liability theories that were even more expansive than anything the Supreme Court had previously endorsed.

And in the Internet law space secondary liability pressure has continued to increase as well, both by platforms becoming subject to more and more regulatory pressure predicated on liability that would attach based on how people used their systems if the platforms didn’t take active steps to curb those uses, and by the statutory protection that could have shielded them from it, like Section 230 and Section 512 of the Digital Millennium Copyright Act, starting to be weakened in favor of allowing liability. There may be several reasons for this trend, but one big one is that the more accepted secondary liability has been in copyright law, and the more tolerated the censorial consequences of such pressure in copyright law have been, the more it seemed reasonable to apply secondary liability to other forms of liability as well, censorial consequences be damned. Which is why this case is such a big deal, because it helps put the brakes on that platform liability trend.

The decision itself

As the Court noted in its decision, the copyright statute itself only provides for direct liability for infringement. [Majority p.6]. So if there’s going to be secondary liability, it will be something for the Courts to infer using traditional common law principles. [Concurrence p.3-4]. Over the years such inferences have led courts to fine to two avenues for there being secondary copyright infringement: “contributory” liability and “vicarious” liability. [Majority p.2]. “Vicarious” liability wasn’t an issue in this case because the Fourth Circuit had already concluded that Cox did not “receiv[e] a direct financial benefit from its subscribers’ infringement,” and the Court had declined to review Sony’s appeal of that aspect of the decision. [Majority p.6]. But with respect for contributory liability, the Court says that it can attach for only two reasons: because a defendant has distributed or provided a product or service that is incapable of substantial non-infringing uses (which it took from the Sony decision), or a defendant has induced another to infringe (which it took from Grokster).

The provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement. To establish that a provider intended its service to be used for infringement, a copyright owner must show one of two things. First, it can show that a party affirmatively “induc[ed]” the infringement. Or, second, it can show that the party sold a service tailored to infringement. [Majority p.2]

Furthermore, contributory liability could only apply when there was the intent that the defendant’s service be used for infringement.

The provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement. The intent required for contributory liability can be shown only if the party induced the infringement or the provided service is tailored to that infringement. A provider induces infringement if it actively encourages infringement through specific acts. […] A service is tailored to infringement if it is “not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” [Majority p.7]

And perhaps more importantly, the Court found that intent could not be construed by the defendant having some knowledge that infringement could be occurring.

This Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe. In Kalem Co., the Court explained that “mere indifferent supposition or knowledge on the part of the seller” that the buyer will use the product unlawfully is “not enough” to make the seller liable for the buyer’s conduct. 222 U. S., at 62. In Sony, the Court explained that “[t]here is no precedent in the law of copyright” for liability based only “on the fact that [the defendant] has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material.” 464 U. S., at 439. And, in Grokster, the Court confirmed that “a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement.” 545 U. S., at 939, n. 12. [Majority p.8-9]

Ultimately, the Court found that neither theory of contributory liability applied to Cox because it lacked the intent for its services to be used for infringement.

Thus, Cox is not contributorily liable for the infringement of Sony’s copyrights. Cox provided Internet service to its subscribers, but it did not intend for that service to be used to commit copyright infringement. Holding Cox liable merely for failing to terminate Internet service to infringing accounts would expand secondary copyright liability beyond our precedents. Cox neither induced its users’ infringement nor provided a service tailored to infringement. As for inducement, Cox did not “induce” or “encourage” its subscribers to infringe in any manner. Id., at 930. Sony provided no “evidence of express promotion, marketing, and intent to promote” infringement. Id., at 926. And, Cox repeatedly discouraged copyright infringement by sending warnings, suspending services, and terminating accounts. As for providing a service tailored to infringement, Cox’s Internet service was clearly “capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.” Id., at 942 (Ginsburg, J., concurring). Cox did not tailor its service to make copyright infringement easier. Cox simply provided Internet access, which is used for many purposes other than copyright infringement. [Majority p.9].

In a concurring opinion, Justice Sotomayor, joined by Justice Jackson, took issue with the majority’s analysis, raising the concern that there were more possible vectors of secondary liability than the two the majority addressed, like “aiding and abetting” liability, and that prior precedent had left open the possibility that they could apply. Yet the majority here had not only ignored these other approaches but effectively shut the door to them ever applying in the copyright space.

The majority holds that Cox is not liable solely because its conduct does not fit within the two theories of secondary liability previously applied by this Court. In so doing, the majority, without any meaningful explanation, unnecessarily limits secondary liability even though this Court’s precedents have left open the possibility that other common-law theories of such liability, like aiding and abetting, could apply in the copyright context. [Concurrence p.1]

Her concurrence was a concurrence, however, and not a dissent, because she, too, found that even aiding and abetting liability wouldn’t apply to Cox because it also lacked the intent such liability required.

Plaintiffs must prove that Cox intended to aid, and therefore help make succeed, copyright infringement committed by those who use its network. To do so, plaintiffs point out that Cox, having received copyright-violation notices, knew that specific connections it services have been, and will continue to be, used to infringe copyrights. Because Cox nonetheless continued to service those connections, plaintiffs argue that the jury could have found that Cox intended to facilitate infringement committed using those connections. This record, however, cannot support finding the necessary intent for aiding-and-abetting liability to attach. To begin, Cox is merely supplying internet service to its customers. Nothing about that conduct is inherently culpable: Most internet traffic is lawful, and supplying an internet connection is just as consistent with lawful purposes as it is with unlawful purposes. See id., at 292 (“[R]outine and general activity that happens on occasion to assist in a crime . . . is unlikely to count as aiding and abetting”). Nor have plaintiffs shown that Cox intended to aid specific instances of infringement. That is because, based on plaintiffs’ evidence, Cox does not actually know that specific users will commit infringement using Cox’s network. Cox supplies internet connections to a wide range of customers, ranging from single users all the way to smaller regional ISPs. When Cox receives a copyright violation notice, however, the notice specifies only which connection was used to infringe, not who used it to commit infringement. [Concurrence p.10-11]

The implications

Despite the disagreement between Justices Sotomayor and Thomas, the decision is still good news for platforms. Even if she’s right and secondary liability may now technically be more limited than it should be in the copyright context, the upshot is that it’s still limited, and the decades, if not century-long expansion of secondary liability for copyright has now been halted. And even if her view of a more expansive catalog of secondary liability sources were to eventually be applicable, even per the concurrence these sources would still require more careful and limited application than has been the trend.

All of which is good for several reasons. First, because it brings copyright law back in line with general common law doctrine that counsels restraint in applying secondary liability. Copyright law had started to be treated as exceptional, where that restraint was cast aside with little policy justification, especially given that even Congress itself was not building secondary liability into its own copyright statute. Furthermore, by bringing copyright law back in line with traditional common law principles it means it can no longer stand as a model to encourage secondary liability expansion with respect to other forms of liability. For too long the exception had started to become the rule, where an attitude of “well if it’s ok for copyright it must be ok for this…” so having the Supreme Court say it is not actually ok for secondary copyright liability to be so expansive will hopefully be tempering for all forms of secondary liability.

It is also significant that both the majority and concurring opinions express concerns with how “knowledge” has often been construed to equate to culpable conduct. Neither accepts that what Cox technically “knew” about potential user infringement could amount to culpability. Sony had argued that because Cox hadn’t (by and large) terminated accused infringers it was therefore liable for their infringements, and this theory was largely rejected. Indeed, both authoring justices seemed especially disturbed by the fact that IP addresses were being used as a proxy for knowledge of an individual infringement when, given that so many connections were shared by households, coffee shops, hospitals, or other institutions, such an inference was often impossible to arrive at. [Majority p.3].

Given this degree of removal from the infringing activity and Cox’s incomplete knowledge, Cox cannot be found to have intended to aid in any specific instance of infringement committed using the connection that Cox provides to the regional ISP. The same is true for connections Cox provides to university housing, hospitals, military bases, and other places that are likely to have many different users. Without proof that Cox knew more about individual instances of infringement, and without evidence of “pervasive, systemic, and culpable assistance” needed to support a more generalized theory of liability, see Twitter, 598 U. S., at 502, plaintiffs have at most shown that Cox was “indifferent” to infringement conducted via the connections it sells. Id., at 500. Mere indifference, however, is not enough for aiding and abetting liability to attach. Smith & Wesson, 605 U. S., at 297. [Concurrence p.12]

It’s also the practical effect of this decision on platforms that stands to be most important for the Internet. The fear of expansive secondary liability has provided immense pressure on platforms to proactively, if not also needlessly, censor the user expression they facilitate in order to avoid it. It certainly has in the copyright space, where platforms have had to remove speech, and even speakers, in an attempt to avoid it, and there has been increasing concern that such secondary liability for other forms of alleged wrongdoing would result in platforms finding themselves taking similar censorial action against other expression they facilitate in order to avoid it as well. They still potentially could, if such secondary liability is prescribed by statute. But there are now several Supreme Court decisions that such a statute would need to overcome: this one, which says that such liability would be an exception from traditional common law rules, and NRA v. Vullo, which points out how statutes seeking to censor via regulatory pressure on intermediaries is unconstitutional, should a regulator try to statutorily create such an exception anyway.

This decision should also hopefully take some pressure off the statutory protections from liability that platforms still depend on, namely the DMCA and Section 230. Indeed, with this decision we’ve come a long way from 2020 when Justice Thomas terrified everyone who cares about the Internet by waxing poetic about whether it was time to revisit the jurisprudence allowing Section 230 to work the way it does. Without Section 230 doing its job of insulating platforms from liability in the user expression they facilitate, and liability from how they moderate it, it would make it difficult if not impossible to even have Internet platforms available to do either of those important things that make the Internet work. And the same with the DMCA, which protects platforms from the copyright liability that Section 230 doesn’t cover, although its protection has been more porous, which is why platforms have had to take down so much expression in order to avoid copyright liability that could potentially adhere in the statutory protection’s coverage gaps.

The decision doesn’t obviate the statutory protection, however, as Justice Sotomayor worried. In her concurrence she wondered what the point of the DMCA would be after this decision if there is no secondary liability to be had without it. [Concurrence p.5-7]. For his part, Justice Thomas noted that it would still provide a defense, but no more could the potential failure to qualify for a safe harbor be automatically considered the grounds for liability. [Majority p.10]. But both the DMCA and Section 230 still have an important job to play. After all, they still protect platforms from being drained by unmeritorious litigation because it’s the cost of the defense and not just the potential liability that are so destructive to platforms ability to be platforms. As it is, we’ve already lost platforms who were bankrupted by the cost of finding out they weren’t liable, and we still need the statutory protection, for both copyright, with the DMCA, and everything else, with Section 230, to operate to make sure no more platforms will suffer a similar extinctive fate.

But it does make both statutes a lot less load-bearing in how they insulate platforms from that actual liability itself, because with this decision, as well as the earlier Twitter v. Taamneh decision—both ironically written by Justice Thomas—underlying liability should now be a lot harder to find.

The Supreme Court’s decision last year in U.S. v. Skirmetti, upholding a law depriving young trans people the healthcare they need, is insupportable, rendering people unequal in a way the Constitution cannot possibly suborn. But its new decision in Chiles v. Salazar regarding the First Amendment standard to use regarding Colorado’s law regarding conversion therapy is different. Despite its similar subject matter relating to sexual orientation and gender identity sounding similar to Skirmetti, it’s actually another 303 Creative, another case that endorsed bigoted views unacceptably hostile to LGBTQ+ people. But for much the same reason that 303 Creative was an important articulation of the First Amendment’s expansive protection—despite the apparent prejudice the plaintiff (and the Court) advanced—so is this decision.

That’s what’s good about this decision, that it recognizes that the First Amendment operates in the professional licensing space and requires heightened scrutiny before states can be permitted to constrain licensing when those constraints are predicated on viewpoints expressed by the licensee, including as part of the provision of services. Heightened scrutiny is what makes the First Amendment’s protections meaningful, and the Court has not always been consistent or coherent in requiring it, particularly with respect to licensure. But when heightened scrutiny isn’t required, it becomes much harder to fight censorial actions taken by the government, including those driven by animus, and including those driven by anti-LGBTQ+ animus—which would also include those actions targeted at therapists supporting LGBTQ+ patients, such as those recently announced by Ken Paxton in Texas. This Supreme Court decision now makes it much, much harder for him to get away with silencing those therapists whose therapy affirmed their patients’ identity by putting their license at risk if they do.

The main problem with this decision however is that the Court picked a law prohibiting conversion therapy as the moment to finally articulate that heightened scrutiny applies with respect to licensing, including medical licensing. Conversion therapy, as Justice Jackson described in her dissenting opinion, is a scientifically-discredited approach “designed to ‘convert’ a person’s sexual orientation or gender identity, so that the person will become heterosexual or cisgender.” [Dissent p.3]. Historically it has been provided via “aversive modalities,” that many have likened to torture, such as “inducing nausea, vomiting, or paralysis in patients or subjecting them to severe electric shocks to telling patients to snap an elastic band on their wrists in response to nonconforming thoughts.” [Dissent p.3]

Importantly, however, to the extent that any law prohibits these practices, those laws remain in force—this decision does not affect such laws. (“The question before us is a narrow one. Ms. Chiles does not question that Colorado’s law banning conversion therapy has some constitutionally sound applications. She does not take issue with the State’s effort to prohibit what she herself calls ‘long-abandoned, aversive’ physical interventions.” [Majority p.7]). But it does reach conversion therapy delivered via talk therapy, where therapists “seek to encourage patients to change their behavior in an attempt to ‘change’ their identity” still are. [Dissent p.3]. As Jackson explained, this approach also causes real harm. [Dissent p.4-5]. And it’s a kind of harm that states like Colorado, who passed the law challenged here, have an interest in stopping. [Dissent p.5-7].

Making it hard for states to do so raises a number of concerns, such as that the decision will give a veneer of legitimacy to conversion therapy and stoke the hostile anti-LGBTQ+ attitudes driving it, as well as create the risk that conversion therapy, at least insofar as it includes talk therapy, might be something that minors could be legally subjected to in Colorado and elsewhere. There is also the fear that even if the Court has now articulated a good rule about heightened scrutiny it will only remember to apply it in cases like these where it will lead to results consistent with the Court majority’s biases—in other words, while the Court may be happy to subject Colorado’s anti-conversion therapy rule to strict scrutiny, there is the fear that it will conveniently forget to apply it to, say, Texas’s law trying to punish those who refuse to engage in it.

It also raises a collateral concern even on the speech-protection front, that subjecting licensure requirements to strict scrutiny could have the practical effect of diluting the standard. As Jackson also noted, we have long allowed states to regulate medical professionals, [Dissent p.8], as well as other licensed professionals like lawyers, and much of the regulation is directed to how licensed practitioners speak in some way as they provide their services. Perhaps all these efforts could actually pass strict scrutiny. In fact, it’s even still possible that Colorado’s law might yet survive it; although Justice Gorsuch’s majority opinion casts some doubt, the case is not over.

Rather than deciding it for themselves, the Court remanded the case back to the lower courts to this time apply the more exacting strict scrutiny standard rather than the less-demanding rational basis review they originally applied. Presumably there will be more opportunity for briefing and argument to show how the particular harm of conversion therapy creates the compelling state interest Colorado needed to act, and that its prohibition of licensed therapists from providing it via talk therapy is a remedy that is sufficiently narrowly tailored.

But the problem with applying strict scrutiny to so much regulation targeting licensing is that it might start to become too easy to satisfy when there are strong policy reasons to favor the government action, and as a result strict scrutiny will no longer be useful as a standard if it essentially allows everything, instead of being a meaningful filter. There are after all always compelling reasons for the government to care about the quality of the services licensees deliver via their professional expression, but just because the government has a valid reason to regulate does not mean that everything it does to regulate is constitutional.

Strict scrutiny also requires that the state action be narrowly tailored, in addition to being motivated by a compelling reason, and it’s too easy for courts to skip that part of the analysis, as we saw with the TikTok ban when it was somehow blessed by the DC Circuit. And the fear is that the more strict scrutiny is applied to what is fairly ordinary state regulation—of licensed practitioners—the more likely it will have the practical effect of creating precedent that dilutes the standard so that it is no longer so strict when we need it to be, especially for state action that is more exceptional. (On the TikTok ban the Supreme Court had greenlighted it using a lesser standard, which was itself extremely problematic as the ban should have been found unconstitutional, but at least the tool that should have applied to it remained sharp for future use, rather than dulled by this bad decision.)

On the other hand, a decision upholding the lower courts’ use of rational basis review would have done no one any favors. As Justice Kagan wrote in her concurrence, joined by Justice Sotomayor, it is easy to imagine a law that mirrors what the Colorado one does, prohibiting talk therapy that accepts LGBTQ+ identity instead of challenges it, and now advocates are left with a much more powerful tool to challenge it.

Of course, it does not matter what the State’s preferred side is. Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way. [Concurrence p.3]

As Texas shows, such a situation is not hypothetical. But now with this decision people challenging such censorial government efforts can turn to long-established First Amendment doctrine in their fight. And the doctrine remains stable, rather than something now swiss-cheesed with bespoke exceptions tied to certain policy preferences. No matter how valid those preferences, if they can be given special constitutional treatment then so can the bad ones. This decision helps buttress the guardrails preventing speech from being protected or not based on whether the government likes it, which is the whole reason we have the First Amendment, to make sure government preferences cannot dictate what views people can express.

Which is especially important when the courts cannot be trusted to overcome their biases to have good sense about which policy preferences are good and bad. The Supreme Court of course only has itself to blame that the public is so primed to believe that its decisions are driven by its biases and not neutral, sustainable doctrine. But nevertheless this decision still stands as an important declaration of law that is consistent with existing First Amendment jurisprudence and one that will ultimately leave everyone, including those challenging government actions attacking LGBTQ+ interests, far better off than if the Court had let the lower courts’ decisions invalidating the law stand after using a less speech-protective rule. In fact it will be an important one for anyone fighting censorship in any context, including those we generally talk about here, to use, because with this decision, the rule that has long been the rule remains the rule: when a government action non-incidentally touches on speech, is content-based, and is not viewpoint neutral, strict scrutiny applies.

Per this decision, a law targeting what therapists can say inherently involves speech, and not in an incidental way. And it targets it in a way that is not viewpoint-neutral; it has a specific preference, that conversion therapy is bad. As a result, as a law that targets the content of speech in a way that is not viewpoint-neutral, strict scrutiny, a more exacting standard than the rational basis review the lower courts had used, is required.

Turning to the merits, both the district court and the Tenth Circuit denied Ms. Chiles’s request for a preliminary injunction. The courts recognized that Ms. Chiles provides only “talk therapy.” And they acknowledged that Colorado’s law regulates the “verbal language” she may use. But, the courts held, the main thrust of the State’s law is to delineate which “treatments” and “therapeutic modalit[ies]” are permissible. Accordingly, the courts reasoned that Colorado’s law is best understood as regulating “professional conduct.” At most, they continued, Colorado’s law regulates speech only “incidentally” to professional conduct. As a result, the courts concluded, Colorado’s law triggers no more than “rational basis review” under the First Amendment, requiring the State to show merely that its law is rationally related to a legitimate governmental interest. Because the State satisfied that standard, the courts held that Ms. Chiles was not entitled to the relief she sought. [Majority p.6]

[…]

Consistent with the First Amendment’s jealous protections for the individual’s right to think and speak freely, this Court has long held that laws regulating speech based on its subject matter or “communicative content” are “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). As a general rule, such “content-based” restrictions trigger “strict scrutiny,” a demanding standard that requires the government to prove its restriction on speech is “narrowly tailored to serve compelling state interests.” Ibid. Under that test, it is ” ‘rare that a regulation . . . will ever be permissible.’ ” Brown v. Entertainment Merchants Assn., 564 U. S. 786, 799 (2011) (quoting United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000)).

We have recognized, as well, the even greater dangers associated with regulations that discriminate based on the speaker’s point of view. When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular “opinion or perspective” individuals may express on that subject, “the violation of the First Amendment is all the more blatant.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995). “Viewpoint discrimination,” as we have put it, represents “an egregious form” of content regulation, and governments in this country must nearly always “abstain” from it. Ibid.; see also Iancu v. Brunetti, 588 U. S. 388, 393 (2019) (describing “the bedrock First Amendment principle that the government cannot discriminate” based on view-point (internal quotation marks omitted)); Good News Club v. Milford Central School, 533 U. S. 98, 112–113 (2001); Barnette, 319 U. S., at 642. [Majority p.8-9]

[…]

As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express. For a gay client, Ms. Chiles may express “[a]cceptance, support, and understanding for the facilitation of . . . identity exploration.” For a client “undergoing gender transition,” Ms. Chiles may likewise offer words of “[a]ssistance.” But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it. The law forbids her from saying anything that “attempts . . . to change” a client’s “sexual orientation or gender identity,” including anything that might represent an “effor[t] to change [her client’s] behaviors or gender expressions or . . . romantic attraction[s].” [Majority p.13]

But even if the law as it stands can’t survive strict scrutiny, in her concurrence, joined by Justice Sotomayor, Justice Kagan suggested ways the law might be amended so that it could be upheld.

It would, however, be less [likely to be unconstitutional] if the law under review was content based but viewpoint neutral. Such content-based laws, as the Court explains, trigger strict scrutiny “[a]s a general rule.” But our precedents respecting those laws recognize complexity and nuance. We apply our most demanding standard when there is any “realistic possibility that official suppression of ideas is afoot”—when, that is, a (merely) content-based law may reasonably be thought to pose the dangers that viewpoint-based laws always do. Davenport v. Washington Ed. Assn., 551 U. S. 177, 189 (2007). But when that is not the case—when a law, though based on content, raises no real concern that the government is censoring disfavored ideas—then we have not infrequently “relax[ed] our guard.” Reed, 576 U. S., at 183 (opinion of KAGAN, J.); see Davenport, 551 U. S., at 188 (noting the “numerous situations in which [the] risk” of a content-based law “driv[ing] certain ideas or viewpoints from the marketplace” is “attenuated” or “inconsequential, so that strict scrutiny is unwarranted”). Just two Terms ago, for example, the Court declined to apply strict scrutiny to a content-based but viewpoint-neutral trademark restriction. See Vidal v. Elster, 602 U. S. 286, 295 (2024); id., at 312 (BARRETT, J., concurring in part); id., at 329–330 (SOTOMAYOR, J., concurring in judgment). In the trademark context, as in some others, experience and reason alike showed “no significant danger of idea or viewpoint” bias. R. A. V., 505 U. S., at 388.

The same may well be true of content-based but viewpoint-neutral laws regulating speech in doctors’ and counselors’ offices.* Medical care typically involves speech, so the regulation of medical care (which is, of course, pervasive) may involve speech restrictions. And those restrictions will generally refer to the speech’s content. Cf. Reed, 576 U. S., at 177 (Breyer, J., concurring in judgment) (noting that “[r]egulatory programs” addressing speech “inevitably involve content discrimination”). But laws of that kind may not pose the risk of censorship—of “official suppression of ideas”—that appropriately triggers our most rigorous review. R. A. V., 505 U. S., at 390. And that means the “difference between viewpoint-based and viewpoint-neutral content discrimination” in the health-care context could prove “decisive.” Vidal, 602 U. S., at 330 (opinion of SOTOMAYOR, J.). Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one. [Concurrence p.3-4]

Ultimately, despite all of the concerns, the decision is still a good one that will leave everyone better off. And not just for cases that reach the Supreme Court but in every state and federal court hearing every challenge of laws trying to penalize certain views, including those accepting of LGBTQ+ identities. Whereas a decision to the contrary, one that would have allowed a rational basis standard to be the test for the law’s constitutionality, could be used to defend laws that, instead of fighting LGBTQ+ prejudice as this one tried to do, instead advanced it. As Texas illustrates, already there are examples of certain government actors attempting to impose their biased viewpoints via licensing requirements for therapists. This decision, even if it may stand as an individual reflection of LGBTQ+ animus by this Supreme Court, still makes further state action motivated by it that much harder for any government actor to impose.

The expression, “to make a federal case out of something” usually describes making a bigger deal out of something than it should be. But in the case of Anthropic and Hegseth, Trump, and the Department of Defense*, this federal case is actually quite simple: what the government defendants did to Anthropic is beyond the bounds of anything the law or Constitution would allow. It didn’t require some complicated analytical parsing to see the problem with the Administration’s behavior, and the remedy is straightfoward: there’s now an injunction depriving that behavior of any effect (albeit stayed for seven days).

But the government is only restrained as to what it did that was actually illegal. Importantly, the injunction clarifies that to the extent that the government could lawfully stop working with Anthropic, it remained fully able to divorce itself. From the full paragraph on the last page of the preliminary injunction order itself articulating what has been restrained:

This Order restores the status quo. It does not bar any Defendant from taking any lawful action that would have been available to it on February 27, 2026, prior to the issuances of the Presidential Directive and the Hegseth Directive and entry of the Supply Chain Designation. For example, this Order does not require the Department of War to use Anthropic’s products or services and does not prevent the Department of War from transitioning to other artificial intelligence providers, so long as those actions are consistent with applicable regulations, statutes, and constitutional provisions.

As the decision justifying the injunction explains, this case wasn’t about whether and how DOD could use Anthropic and whether Anthropic could have a say in how it was used, which was the issue underpinning the contract dispute between the two. Had it been, then the DOD could have simply walked away from the product. The problem is that the government didn’t just stop doing business with Anthropic; it went further, and it is those actions that broke the law.

The question here is whether the government violated the law when it went further. After Anthropic went public with its disagreement with the Department of War, Defendants reacted with three significant measures that are the subject of this lawsuit. First, the President announced that every federal agency (not just the Department of War) would immediately ban Anthropic from ever having another government contract. That would include, for example, the National Endowment for the Arts using Claude to design its website. Second, Secretary Hegseth announced that anyone who wants to do business with the U.S. military must sever any commercial relationship with Anthropic. That would mean a company that used Claude to power its customer service chatbot could not serve as a defense contractor. Third, the Department of War designated Anthropic a “supply chain risk,” a label that applies to adversaries of the U.S. government who may sabotage its technology systems. That designation has never been applied to a domestic company and is directed principally at foreign intelligence agencies, terrorists, and other hostile actors. [p.1-2]

And the court counts several ways that the government’s actions were likely illegal. At minimum, Anthropic suffered a due process violation for not having notice and an opportunity to respond to the government’s sudden supply chain risk designation, which threatened a cognizable liberty interest the Fifth Amendment protects. (“The record shows that the Challenged Actions threaten to cripple Anthropic by not only stripping it of billions of dollars in federal contracts and subcontracts but also by labeling it as an adversary to the United States and ending its ability to have any commercial relationship with any company that might want to do business with DoW.”) [fuller analysis p.24-29]

The “supply chain risk” designation was also likely “both contrary to law and arbitrary and capricious.” On the first point, there are two statutory paths for designating a vendor a supply chain risk, and this case addressed just one of them—the other will be addressed by the DC Circuit. But it found the government’s claim it was using the statutory authority properly to be wanting: First, Anthropic’s conduct did not meet the statutory definition of a supply chain risk.

On the record before the Court, Anthropic’s conduct does not appear to be within the definition of “supply chain risk” in Section 3252. Section 3252 defines a supply chain risk as limited to “the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert . . . a covered system.” 10 U.S.C. § 3252(d)(4). Assuming without deciding that a domestic company can be an “adversary,” the plain text of the statute is directed at covert acts or hacks, not overt positions taken during contract negotiations. Indeed, it is difficult to understand how one could sabotage, maliciously introduce an unwanted function, or subvert an information technology system by publicly announcing usage restrictions or insisting on such restrictions in conversations with DoW. Defendants appear to be taking the position that any vendor who “push[es] back” on or “question[s]” DoW becomes its “adversary.” (Dkt. No. 128 at 41.) That position is deeply troubling and inconsistent with the statutory text. [p.30-32]

And second, those procedural rules the government blew off to invoke the statute, such as the need to notify Congress first, actually mattered. Despite what the government argued at oral argument, that the Congressional notification requirements were only for the benefit of Congress, the court found that they were important safeguards Congress had built into the statute to prevent its abuse and therefore non-optional. (“Section 3252 and its enabling regulations create institutional safeguards—which the Secretary must complete before making a designation—to ensure that its designation is applied properly. The Supply Chain Designation failed to comply with these mandated procedural safeguards.”) [see analysis p.32-34].

In addition, the designation itself was likely arbitrary and capricious. As the court noted early in its decision (emphasis added):

The Department of War provides no legitimate basis to infer from Anthropic’s forthright insistence on usage restrictions that it might become a saboteur. At oral argument, government counsel suggested that Anthropic showed its subversive tendencies by “questioning” the use of its technology, “raising concerns” about it, and criticizing the government’s position in the press. Nothing in the governing statute supports the Orwellian notion that an American company may be branded a potential adversary and saboteur of the U.S. for expressing disagreement with the government.[p. 2; further analysis p.35-37 (“In sum, the contradictory positions, the procedural defects, and the rushed process following a public declaration of the foreordained conclusion all indicate that the actions were arbitrary and capricious.”)]

And then there is the problem at the heart of the matter: that it appears the government is trying to punish Anthropic for daring to criticize it, and that sort of retaliation for speech violates the First Amendment.

The record supports an inference that Anthropic is being punished for criticizing the government’s contracting position in the press. In their announcements, the President and Secretary Hegseth called Anthropic “out of control” and “arrogant,” describing its “sanctimonious rhetoric” as an attempt to “strong-arm” the government. The Department of War’s records show that it designated Anthropic as a supply chain risk because of its “hostile manner through the press.” Punishing Anthropic for bringing public scrutiny to the government’s contracting position is classic illegal First Amendment retaliation. [p.2]

And it violates the First Amendment not only by impinging on Anthropic’s right to speak, but everyone else, who is now deterred from speaking out as well, even on matters of public concern like ethical use of AI, given that the government is now inflicting consequences on those who speak in ways it doesn’t like. To the court, the government’s action looks clearly retaliatory. (“The record shows that Defendants’ conduct appears to be driven not by a desire to maintain operational control when using AI in the military but by a desire to make an example of Anthropic for its public stance on the weighty issues at stake in the contracting dispute.”) [p.19]. A retaliation claim can succeed when (1) the plaintiff was engaged in constitutionally protected activity, (2) the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and (3) the protected activity was a substantial motivating factor in the defendant’s conduct—in other words, that what the defendant did was intended to chill speech, and here the court found all these prongs met. [p.20].

On the first, Anthropic was publicly staking out a position on what deployments of Claude are currently unsafe and what rights Anthropic has to allow Claude’s use by the government only with certain safety restrictions, which the court found to be a matter of public concern and thus protected by the First Amendment. (“[T]he record shows that Anthropic and its CEO, Dario Amodei, are a loud and influential voice regarding the capabilities, risks, and safe uses of AI technology.”) [p.20]. As to the second, there was plenty of evidence of speech being chilled:

Anthropic has submitted evidence that the Challenged Actions threaten to cripple the company and chill public debate. See supra Section II.G. Several amicus briefs support this conclusion. A group of 37 individuals working on AI technology assert that the Challenged Actions “chill[] professional debate on the benefits and risks of frontier AI systems and various ways that risks can be addressed to optimize the technology’s deployment.” (Dkt. No. 24-1 at 8.) An industry group of “values-led investors” warns that the Challenged Actions chill speech necessary to allow them to direct their investments to support the “principles and values” they care about. (Dkt. No. 77-1 at 12.) In short, the Challenged Actions easily qualify as ones which would chill a person of ordinary firmness from continuing to engage in further protected speech amici in the case showed how everyone’s speech was being chilled by what the government had done.[p.21]

And as for the third, the government’s behavior clearly resulted from displeasure with Anthropic’s views and the desire to relinquish them.

Secretary Hegseth expressly tied Anthropic’s punishment to its attitude and rhetoric in the press. He stated that “Anthropic delivered a master class in arrogance.” (Dkt. No. 6-21 at 2.) Referring to Anthropic and Amodei, he further stated: “Cloaked in the sanctimonious rhetoric of ‘effective altruism,’ they have attempted to strong-arm the United States military” through their “corporate virtue-signaling” and “Silicon Valley ideology.” (Id.) “Anthropic’s stance is fundamentally incompatible with American principles.” (Id.) The President described Anthropic as “radical left, woke company” and its employees as “leftwing nut jobs,” who “made a DISASTROUS MISTAKE trying to STRONG-ARM the Department of War.” (Dkt. No. 6-20 at 2.) Read in context of these repeated references to rhetoric and ideology, the term “strong-arm” in the Presidential Directive and the Hegseth Directive appears to be characterizing Anthropic as applying public pressure. […] These specific references to Anthropic’s viewpoint and public stance are direct evidence of what motivated Defendants’ decision-making.[p.21-22]

And the government’s defense—that Anthropic’s “contracting position” is conduct, not speech entitled to First Amendment protection, and that Anthropic’s refusal to accept DOD’s terms was what prompted the government’s actions—was unavailing.

First, without reaching the question of whether private contract negotiations alone could constitute protected activity under the First Amendment, the record shows that Anthropic engaged in protected speech when it took public the parties’ contracting impasse and the reasons behind its refusal to agree to DoW’s terms. (See, e.g., Dkt. Nos. 6-7, 6-18.) As already explained, Anthropic’s views on this matter fall within the heart of what the First Amendment protects: “subject[s] of general interest and of value and concern to the public” and “of legitimate news interests.” See Snyder, 562 U.S. at 452–53 (citation omitted). Therefore, to the extent Anthropic publicly discussed its “contracting position,” that speech is protected by the First Amendment.

Next, Defendants argue that even if Anthropic’s public statements constitute protected speech, the contract dispute—not Anthropic’s speech—was the motive and “but for” cause of the Challenged Actions. (Dkt. No. 96 at 22–24.) They point out that although Anthropic and Amodei have long advocated for AI safety, Defendants took the Challenged Actions only after Anthropic refused to remove its usage restrictions. But Defendants’ own actions belie the notion that Anthropic’s contracting position is what drove the Challenged Actions. Anthropic had imposed its usage restrictions from the beginning of DoW’s use of Claude Gov, and no one had ever suggested that this indicated that Anthropic was untrustworthy or a potential saboteur. To the contrary, Anthropic passed extensive vetting at that time and was praised by the government, which had made arrangements to expand the company’s role. It was only when Anthropic publicly discussed its dispute with DoW that Defendants criticized its rhetoric and ideology and adopted the punitive measures at issue.[p.22-23]

Throughout the decision the court observes that if the dispute here were just over the contract, then surely the government would have just stopped using Claude. But it didn’t just do that; it did more. And that more is now enjoined. The February 27 Presidential Directive from Trump “ordering all federal agencies to cease use of Anthropic’s technology” is to have no effect, nor is any agency action (by any agency,** not just the DOD), taken in response to it. No one in the Trump Administration (Anthropic had named pretty much every agency as defendants, so that’s basically how it boils down) may “issu[e] or maintain[] any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Presidential Directive” or “tak[e] any other action to implement, effectuate, or further the purposes of the Presidential Directive.”

Meanwhile, Hegseth and the DOD are also enjoined from “implementing, applying, or enforcing in any manner” what the court referred to as the Hegseth Directive, issued later on February 27, 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 commercial activity with Anthropic.” Nor can it implement, apply, or enforce anything in the March 3 letter DOD sent notifying Anthropic of the supply chain designation and the associated determination formalizing that designation under 10 U.S.C. § 3252. Hegseth and the DOD are also enjoined from “[f]rom issuing or maintaining any guidance, directive, communication, or instruction to any officer, employee, contractor, or agent, in furtherance of or implementing the Hegseth Directive or the Supply Chain Designation [and from] taking any other action to implement, effectuate, or further the purposes of the Hegseth Directive or the Supply Chain Designation.”

* No, it’s not the “Department of War” as unfortunately both parties and even the court called it, for reasons that elude. Perhaps Anthropic feared it would pull a Trump-friendly judge and need to speak the Administration’s language in order to be treated fairly, but such was not the case, at least in this piece of the case in the Northern District of California—maybe it will be different in the second piece of the case in the DC Circuit. But it’s not clear why the court had to humor them; it applies law, and the law, as passed by Congress to create, name, and fund the agency, calls it the Department of Defense, with Hegseth having been appointed to a specific job called the “Secretary of Defense.” If Congress wanted it to be called the “Department of War” it could have named it thus, but it found there were tangible policy reasons not to when it in fact changed its name to the DOD instead. It typifies the Trump Administration’s typical indifference to any law that might happen to govern any of its behavior to ignore it and Congress’s authority to pass it by unilaterally trumping Congress’s wishes and rename it, but no one else needs to indulge yet another of their abuses of power by humoring their choice.

** The Executive Office of the President is not bound by the injunction directly, despite being a named defendant. Nevertheless, “[l]ike all other persons, EOP is barred from acting for, with, by, through, or under authority from any enjoined Defendant, or in concert or participation with any enjoined Defendant, in any manner inconsistent with the preliminary injunction order.” [p.42]

It has long been clear: Trump needs to be removed from office before he can inflict even more damage than he already has. But he doesn’t just need to be stopped; for America to have a future he also needs to be repudiated. Impeachment speaks to each need, to both make clear his behavior is beyond anything we would ever tolerate as well as remove his capacity to continue it.

But by not even attempting to impeach him, or any of his malign administration officials, he not only remains able to wreak more destruction but he now does it with Congress’s blessing. Instead of being repudiated, his behavior is endorsed. Because one could fairly conclude that if anyone in Congress had an issue with what Trump is doing, then surely they would try to do something to stop it with the power they have. Yet, with the so far sole exception of Representative Green, who has actually tried, twice, to file impeachment articles against Trump, no one—from any party—has filed any against anyone.

Obviously many in Congress do in fact object to what Trump does—there are tweets and speeches saying as much. But it’s all sound and fury signifying nothing. Tweets and speeches do not amount to any sort of useful action. And through inaction the only message we’re sending is that no one thinks it is worth doing anything more.

A stunned and increasingly wounded world is now coming to terms with the realization that Trump’s disqualifying misbehavior is the sort of thing can happen in America, and moreover, the sort of thing that will be allowed to happen in America. His abuse of power—as well as his warmongering, war criming, corruption, ignorance, incompetence, racism, and range of other unconstitutional, illegal, and even criminal activities—is apparently something not just possible under our constitutional order but enabled. As we watch an addled monster drive us all towards disaster, with the rest of the U.S. government willingly along for the ride and no one with the constitutional authority even trying to apply the brakes, one is left to conclude that, at best, our vaunted Constitution must not provide an effective immune system to address Trump’s antidemocratic malfeasance, or, worse, that Americans are fine with all of it, because, even if there were a mechanism to stop him, there’s apparently no one with the authority to trigger it who thinks it’s worth bothering with. Both conclusions paint a very different picture of what sort of country the United States is than most had previously imagined, and it is this re-envisioning of America that will affect how others let the country and its people live in the wider world even after Trump is finally gone.

Of course, there is actually an immune system. The fundamental power to remove Trump from office—impeachment—is still there, as provided by the Constitution; the issue is that no one is willing to use it. And that unwillingness is ultimately what the world is judging, because when they wonder why no one is using it, it’s impossible to avoid concluding that no one else in the government of the United States of America, despite everything Trump is doing, thinks there’s actually a problem to address.

Perhaps this conclusion is unfair, though, so let’s take a moment to consider whether there could be any sort justification for Congress’s inaction. And, more specifically, the Democratic members of Congress, because while it’s an indefensible abdication of their own oath of office for Republican members of Congress to refuse to police Trump, because in theory he’s their guy, it’s something else for the political opposition to also refuse to, especially when he’s supposedly not their guy at all.

Perhaps that opposition may begin to explain the reluctance to take action: for better or worse, Trump was duly elected President and in general it is a good thing if democratic expressions of political will are respected, even, and especially, by those who disagree with them. As Trump himself illustrates, de-legitimizing election results is not healthy for a sustainable democracy. There may also be the pragmatic concern that taking aim at someone the people chose is bad politics, because it will antagonize the electorate so that they never vote for you, although recent polls and election results strongly suggest that this fear is unfounded. Furthermore, Trump never should have been on the ballot in the first place. As an ineligible insurrectionist he never was someone that Americans should have been able to choose to be President, and that he was nevertheless voted into office already means his reign is inherently illegitimate, and in a way that undermines our democracy more than if its legitimacy were challenged. But even setting his eligibility doubts aside, it’s one thing to acknowledge Trump as the legitimately-elected President. But it’s another entirely to allow him, as President, more power than the office actually grants him and shrug off the unconstitutional ways he abuses it. The Constitution only grants him so much, and no one has the right to grant him more by failing to check him when he has nevertheless taken it.

Perhaps some of the reluctance to press for impeachment is out of the concern that, terrible president or no, Congress still has a job to do to run the country, and bad things can happen if it turns its attention away. But this sort of mis-prioritization can’t withstand scrutiny either. For one thing, bad things are already happening by not acting to stop Trump. And not just all the bad things he’s doing, but all the bad things that Congress is doing too, like not passing ACA subsidies, or spending its time instead doing antidemocratic things like trying to pass First Amendment-violating legislation to censor the Internet, as if this moment of looming autocracy were a good time to join in on the constitutional violations too.

Perhaps the reticence to pursue impeachment is motivated by the desire to remain cordial with colleagues across the aisle, in the hopes that it could lead to mutually-negotiated solutions. If so, however, it doesn’t seem like such politesse is paying off particularly well—after all, those ACA subsidies still haven’t been passed, and Trump remains in office, doing things that hurt Americans, including the constituents of both Democrats and Republicans, along with the rest of the world and our standing in it. While it is true that there have been some small successes managing to restrain Trump here and there using more traditional political pressure, at best such efforts are like trying to drain the ocean with a teaspoon, one issue at a time, while meanwhile a deluge of chaos drowns us all. Congress has still left us all defenseless to danger that by not even trying to do what it would take to stop it.

And even if the concern about bringing impeachment now is that it wouldn’t have the votes to pass, it would still be bad math. First, by not pressing impeachment it prevents the political calculus from evolving so that there could come to be enough votes—no one needs to join the push for it if there’s no push happening. And it makes it doubtful that there would ever be enough votes, not even after midterms—assuming, of course, that an unchecked Trump doesn’t do something to interfere with them happening. If Congress is waiting for voters to send them more colleagues who will join them in impeaching, voters will need to know that there is an impeachment effort to be joined. Yet so far there is none. Not impeaching sends the signal that impeachment isn’t warranted, and if it isn’t warranted by now, there’s little reason for anyone to think that those already not bothering to try are ever going to change their mind and start.

Ultimately, no matter what members of Congress tell themselves to try to justify why they have acquiesced to Trump instead of playing the best card the Constitution gave them to stop him, all of those excuses ultimately fall flat. Trump is destroying America, but by refusing to use the tools the Constitution gave them to stop him, it is Congress that is finishing it off for good. Not just by letting him wreck everything we’ve built for 250 years, and the lives and liberties—as well as global and economic stability—that depended on the Constitution’s promise being fulfilled. But by doing nothing it instead sends the very loud message, now reverberating around the globe, that everything he and his subordinates are doing is fine, when the reality is anything but.

And the world is noticing. When they look at America they see it not as a strong, stalwart ally, but a frail country with weak civic institutions vulnerable to capture, indifferent to such a fate as long as it doesn’t affect the price of eggs, and possibly not even then. Worse, as Congress refuses to defend America from the exigent danger Trump represents to it and the world, and through its inaction instead enable it, the world is left to conclude that Trump is what America wants, because no one governing it is saying otherwise.

Without a sign that America does not want Trump, other countries are forced to presume it does and act accordingly, even when doing so is bad for themselves and the future—and even us. Not only does it mean they can’t support us in our effort to rid ourselves of him, because there is no effort to support, but in the absence of any official pushback they have little choice but to accept him as legitimate, even though doing so only reinforces the power he is abusing and makes reclaiming America from his lawless grasp that much harder to eventually effect.

Yet there seems to be this naïve belief held by many of the same cowered members of Congress currently doing nothing that somehow the problem will magically resolve, and once Trump is somehow eventually out of office America will simply be welcomed back to the world stage as a respected member of the global order. As if all we need to do is wait for his chaotic storm to pass and then we can all pick up where we left off. And as if the world will simply forgive and forget the real and often irreparable harm Trump has been inflicting, far beyond America’s borders, and that America has been refusing to even try to lift a finger to stop.

The world will not. Failing to impeach, among all its other infirmities, is a long-term foreign policy problem. Without impeachment, to not just dislodge Trump from office so he can no longer hurt us anymore but unequivocally condemn the harm he has already inflicted, and not just on ourselves, we will be resented, and rightly so. Not for what Trump has himself done, but for what we have been glad to let him do to us all.

This past weekend Section 230 turned 30 years old. In those 30 years it has proven to be a marvelous yet misunderstood law, often gravely, as too many, including in Congress and the courts, mistakenly blame it for all the world’s ills, or at least those that happen in some connection with the Internet. When in reality, Section 230 is not why bad things happen online, but it is why good things can happen. And it’s why repealing it, or even “just” “reforming” it, will not stop the bad, but it will stop the good.

Unfortunately, even 30 years in, these ignorant efforts to diminish or even outright delete the law continue, despite the harm that would result if they succeeded. Which is why this anniversary seems like a good time to review why many of the reasons why the hostility towards Section 230 is so misplaced. Here at Techdirt we’ve collectively all spilled a lot of digital ink over the years about why Section 230’s critics are wrong to condemn it, and not just a little bit but completely and utterly, as well as counter-productively. But on this celebratory occasion I thought it would be fun to look back on what I personally have written about Section 230—at least since its 20th birthday celebration and the piece I wrote then—and collect some of these “greatest hits” in a post to help get anyone new to thinking about Section 230, who may be unsure why those pushing to repeal it is so misguided, caught up on why Section 230 is not a law we should be messing with.

What Section 230 does. One reason that people get Section 230 wrong is that there are a lot of myths about it and what it does or does not do. A good place to start is with an overview of how it generally works, and if you like watching videos you can watch this presentation from a few years ago where I gave a crash course in its operation.

In short, though, Section 230 immunizes platform providers from liability in two key ways: for liability in what their users use their services for, and for liability that could possibly result in how they moderate their users’ use of their services. Section 230 aligns platforms providers with Congress and makes it possible for them to work towards what Congress wants—the most good material online, and the least bad—by making it legally possible for the providers to do the best they can to achieve it on both fronts. If it is legally safe for them to allow user expression, because they won’t have to fear being liable for it, they will allow the most good expression, and if it is legally safe for them to remove user expression, because they won’t have to fear being liable for their moderation, then, as this post explains, they will be able to remove the most that is bad.

But Section 230 is not some sort of special favor for Big Tech, as some have suggested. It’s not even one for startups, as others have alleged. In fact, it applies to regular people as much as it applies to anyone. Rather than it being any sort of subsidy, it instead operates more like a rule of civil procedure to make sure that platforms cannot be drained of resources having to defend themselves for whatever wrong a user’s conduct is accused. Which is also why “reforming” Section 230 effectively means repealing it, because nearly all the proposed reforms would make the statutory protection more conditional, but if platforms are unsure about whether they are protected or not and in jeopardy of having to litigate the question, then for all intents and purposes they are effectively unprotected, and they will act accordingly to defensively either deny more beneficial content, or leave up too much that is harmful (or both).

When Section 230 applies. One of the common myths about Section 230 is that it prevents anyone from ever being held responsible for how the Internet has been used. Not so; Section 230 does nothing to prevent anyone from being accountable for their own behavior. What it does not allow, however, is someone else being held accountable, namely the provider of the platform service they used, because, as discussed above, if the platform could have to answer for how any of their users used their services, they would never be able to offer their services, and if they couldn’t offer their services then there would be no Internet for anyone to use even for any of the good, useful, or important things we use it for.

Section 230 also doesn’t immunize platforms for their own actions, only those of their users. The issue sometimes is in telling the two apart, but as this post argues, it’s not actually as hard to figure out as some people would insist. First, the idea that there is some publisher/platform distinction is a fiction; the only thing that matters is whether the immune provider is providing an interactive computer service of some sort and someone else has provided the content, or if the platform has provided the content itself. And in the event we get confused about who the content provider is, we can look to see who imbued the offending expression with its allegedly wrongful quality, which more often than not is the user and not the platform. As we’ve understood since the Roommates.com case, that a platform has simply welcomed the expression isn’t enough to put the platform on the hook for it.

Furthermore, the type of content a platform might be immune for intermediating can be myriad, including online advertising, which is expression provided by others and then intermediated by a platform (despite what certain state governments think), online dating sites, or online marketplaces—although there have been some issues getting the courts to consistently recognize how Section 230 should apply in that context, even though the statutory history supports it. Although sometimes they still do.

Why Section 230 is important. Regulators can be tempted to take swings at Section 230 because it can be tempting to try to control what can be said on the Internet, and Section 230 gets in the way of those efforts. While the First Amendment also protects platforms’ ability to choose what user expression to facilitate, Section 230 makes that protection meaningful by making those choices practically possible. When they cannot be freely made, then the user expression they facilitate takes a hit.

Which is why efforts to change Section 230 are a problem, because of all the collateral damage they will cause to online expression.  But for some regulators, that censorship is the goal and why they have Section 230 in their sights. They want to prevent online expression, because too often it is online expression they don’t like. And, indeed, sometimes the speech is unfortunate, potentially even actionable.

But eliminating Section 230 is no solution at all. If we take away platforms’ ability to be platforms, then we take away everyone’s ability to use them to speak, no matter how important what they have to say is. It’s why we need to defend Section 230, even when it’s hard. There are always things that need to be said online, especially when we need to speak truth about power. Section 230 means we can. And we’d miss it if we couldn’t.

History never repeats exactly the same, which is how it can be hard to recognize when it is indeed repeating—too many little things may be different the second time around for subsequent events to be a perfect twin of the previous. But it’s the big things that often reappear in similar ways that are meaningful. As they are here, which is why it’s time to recognize: for all intents and purposes, how the government of the United States of America is behaving is just like how the German Nazis behaved. It is doing to the people within its national embrace exactly what the Nazis did to theirs. The comparison to 20th Century Nazi Germany is not something that 21st Century America is still working up to; it’s where we have already arrived.

That we have not (yet) set up an Auschwitz-Birkenau, replete with crematoria, is not evidence to the contrary. After all, the German Nazis didn’t just suddenly start killing millions in the 1940s; their crimes against humanity began years earlier, in the 1930s. Even Hitler himself referred to the mass murder Auschwitz facilitated as the “final solution,” because it was the tactic deployed only after he had already committed plenty of other atrocities first—atrocities that look an awful lot like the ones we are inflicting now upon the human beings in our own national midst.

In the case of both nations the atrocities began, as such horrors often do, with the “othering” of people, as if there were those who, by virtue of something about their own humanity, were somehow disqualified from being part of our national community. While the Trump Administration may have begun by ostensibly focusing on “illegal immigrants”—which itself is a grotesquely deceptive label (an immigrant cannot be illegal; an immigrant can only immigrate illegally, and, for the most part, such illegality is but a civil or misdemeanor offense and not the heinously lawless act the administration paints it as)—like the German Nazis it has also stigmatized racial, religious, and ethnic groups comprising America’s cultural tapestry, as well as LGBTQ+ people. The rhetoric it espouses is all about conditioning the public to believe that there are some people who belong in America, and some who need to be expunged from it, so that the public will get on board aiding, supporting, and even celebrating the expunging that will soon follow.

The horror in both countries then continues by upending the law such that the targeted people cannot legally belong anymore. In Germany we saw how Jewish families who had been in the country for generations suddenly lost their rights as citizens. Here in the U.S. denaturalization has so far only been threatened, albeit palpably, but for non-citizens whose presence in the country has so far been entirely lawful, the Trump Administration has been unilaterally changing that status, moving people from welcomed additions to our community to accused interlopers who must be expelled and, per the government, right now.

But before the expulsions can happen, first the targeted people need to be rounded up. And so a force of federal police has been showing up at people’s homes, schools, jobs, health care providers, bus stops, and anywhere American life takes place to arrest people, without warrants or due process, for no crime at all other than existing. Even if not yet officially prisoners, everyone targeted by the regime has already been made to be, by forcing them to withdraw from life in fear. Governor Walz is absolutely right: there is some child writing a new diary about what it is like to have to hide from a lawless regime incapable of respecting the law and liberties that are supposed to protect them, just like the German Nazis refused to respect any of it either.

After rounding its targets up, the American government then does what the German Nazis did and “concentrate” those they have snatched in detention centers, or, as in the case of some of the larger complexes, “camps,” if you will. There these people—even small children—are kept as un-convicted prisoners, unable to leave on their own volition while, just like the Nazis’ victims, they are forced to live in inhumane conditions—assuming they manage to stay alive at all. Here history has been loudly echoing once again, as the stories emerging from America’s human warehouses are, as the German Nazis’ were, tales of inadequate food and healthcare, brutality by the guards, and indifferent murder.

The comparison to history does not even stop there. For instance, German Nazis also liked to banish their prisoners to far-flung nations where they could be imprisoned instead. It is an example the Trump Administration has already followed, such as by sending its own to places like CECOT in El Salvador or other nations around the world where a secret flight could be sent in accordance with a secret deal made with a regime willing to accommodate America’s evil. Furthermore, the Trump Administration has continued to walk in the path of the German Nazis in its penalization of any dissenting voice that would challenge its actions. Here, too, opponents of the regime have also become targets of its brutal power, being entered into databases, surveilled, and even summarily executed.

Naturally there are of course some differences between then and now. In fact, one of the biggest differences between what the Germany Nazis of the 1930s and 1940s did then and what the United States government is doing now is that we’re mostly using airplanes instead of box cars to traffic innocent people to places where at best they are imprisoned, often tortured, and generally put in mortal peril. And, unlike the German Nazis, who were meticulous in their paperwork, our government can’t seem to be bothered keeping track of whom we have sent to their doom. But apart from these differences what is happening now is still fundamentally the same as what happened then. Families are still being broken up, children are effectively being orphaned (even citizen children, who are also being expatriated), and lives and futures are being destroyed, if not ended outright. All without due process, and in grotesque volume, just as during the Holocaust.

However, there is another important difference: that so many in America can see what is happening for what it is and be willing to stand against it. There are of course stories from the Holocaust of people resisting Nazism and trying to save their neighbors—Anne Frank’s, for instance—but history lacks good analogs to what is happening now, like in Minnesota, where virtually the entire community has stood in solidarity to shield their neighbors and protest en masse, with even local government pushing back as well.

But that wonderful exception to America’s descent into Nazism does not mean the descent hasn’t already happened. The comparison remains too apt, and too important to run from. Because it also is instructive for how we got here. After all, how could it have happened here, in a country strong enough to have defeated the actual German Nazis, with its nearly 250-year old constitutional order that should have prevented everything that is now happening. But the answer is revealing: because neither regime committed their crimes with any legitimacy. In both cases, the sitting governments had to destroy the law that would have restricted their evil in order to perpetuate it.

Of course, even if the Weimar Republic had been too weak to resist it, surely America should have been more durable and able to resist such a threat emerging from within. Yet here we find ourselves, which itself adds to the list of reasons why it is so important to realize it: because thinking it can’t happen here is precisely why it has happened here. Saying it can’t and wouldn’t happen here is exactly what ensures that it can and will. It could and it did, because too many ignored one of the critical lessons of the Holocaust, which is that its horrors don’t come from nothing. Yes, there are malevolent people, but they only have power over us when good people do nothing with the power they have to stop it. And here far too many people who should have protected us from what is now happening turned a blind eye to it while it was brewing on the horizon and in doing so cleared the way for it.

As history keeps demonstrating, the price of liberty is eternal vigilance. Which is why it is so important to stop burying our heads in the sand, or, worse, try to excuse the inexcusable by rationalizing, even if only out of some sense of misplaced patriotic vanity, that what is happening is anything less than what we believed should never be able to happen again. It is only by recognizing that this evil has slipped through our defenses that those defenses can be fortified.

And it is important to start now, because, again, the story of Nazi Germany offers even more important lessons. One is that there will come a tipping point after which it may be impossible to stop the horrors the government is perpetuating without risking war. Furthermore, even if the atrocities the American government is committing were to stop today—and at last there finally seems some political enthusiasm for trying to get them stopped—hundreds, if not thousands, of innocent people have already been traumatized, tortured, or killed by these monsters we allowed to run around among us for the last year wearing our flag. There is no undo button for what has befallen them. But if we act now we can save others. As well as ourselves.

Because one other key lesson is that this evil doesn’t just victimize others; it victimizes everyone. It is not just the targets of the regime but everyone’s welfare that is at stake. The history of the Holocaust shows how ultimately every German suffered along with the people the Nazis specifically targeted. There is no allowing this evil to happen to just some among us. We’re all in this country and world together with our fates inexorably intertwined. These are crimes being committed against all of us, trying to destroy the fabric of our nation, its values, and all the law that is supposed to protect us all. Saving everyone is the only way to save ourselves.

And the first step to salvation is acknowledging the true danger we face.

Note: I originally started writing this post because I thought it had an important point to make. Then I saw the execrable news that the US Holocaust Museum had the gall to criticize the comparisons being drawn between what is unfolding against the vulnerable among us now, and what unfolded decades ago against the vulnerable in Nazi Germany, as if any victims had some sort of a monopoly on sympathy for being victimized, and it only became more relevant. I may not be a Trump sycophant unlawfully operating one of the nation’s most important museums, but I’ve visited enough Holocaust memorials and museums, studied enough Nazi propaganda in academic environments, and toured enough concentration camps to have learned the lessons that curators in every instance have been desperate to teach the future. The US Holocaust Museum board should think about becoming similarly educated so that they, too, can learn that the point of all these efforts archiving and instructing on the past is NOT to take the Nazis’ side.

It will be to the everlasting shame of all Americans that impeachment has not yet been accomplished to formally remove Trump from office. Not in his previous term, and not this one, at least not so far. In fact, this term it has hardly even been attempted. If it weren’t for Representative Green honoring his oath of office it wouldn’t have even been tried at all. Even Democrats are still in significant numbers joining their Republican colleagues in refusing to do what is needed to save our constitutional order, despite everything Trump has done from the moment he retook office—including taking the office, which he was ineligible to do as a confirmed insurrectionist—being entirely inconsistent with the Constitution’s instructions for how to achieve a democratically sustainable federalized union of states.

Impeachment still needs to happen, for Trump and his minions, not just to cleanly expel Trump from the presidency but to disqualify him from ever returning to it. And that expulsion needs to happen with an urgency that really required it to have been completed at the latest by last March. Yet the way things are going, with Congress dragging its feet, it seems we’ll be lucky if it will even happen by this March, if at all. Moreover, with Trump upping the ante at every turn, we’ll be lucky if the nation, all its constituent states, and even most of the people who depend on the Constitution’s promises of liberty, freedom, and justice for all, are still standing by then if nothing is done to officially separate him from the powers of the office he continues to claim. After all, every day of delay is another day for a five year old to be shipped to a concentration camp in Texas. Even if the nation survives this presidency, it’s already clear we won’t all.

But it turns out, Trump has already begun to separate himself from the presidency. And that he has done so reveals another path the Constitution allows for retaking our democracy, starting now.

On this appalling anniversary week of Trump’s installation as the 47th President of the United States, it is time to recognize an essential truth: he has functionally already abandoned the office. Sure, he still (nominally) lives in the White House, meets heads of state (and insults them), is answered to by the military (however ill-advisedly), signs bills (and pardons!), and at least superficially seems to be conducting the basic functions of the office. These are things that the Constitution allows presidents to do, not because, as Trump seems to think, the Constitution seeks to reward a single person with the special power to do any of them, but because these are governmental functions someone needs to do and it makes more sense to grant a chief executive the ability to do them than someone in any other branch of government.

But the exercise of these functions is not the full extent of the job. The job of president, as the Constitution describes, also includes the requirements to “take care that the laws be faithfully executed,” and to fulfill the oath he swore upon taking office, which included the promise to “preserve, protect and defend the Constitution of the United States.” None of these obligations are incidental to the job; they are key counterbalances to the enormous power the position affords its occupant. Yet he has been doing none of them in any sort of meaningful way, if at all. In fact, all too often he instead does the exact opposite of what’s required by the job, including by engaging in his own criminality, abetting the malfeasance of others, and otherwise generally upending our constitutional order by ignoring statutes, treaties, and constitutional text, and turning every bit of power he’s managed to wring from his position against the very same public the Constitution says he works for.

There are few situations where we would consider someone not doing what they were hired to do, and in fact doing the very opposite of what their job required, as still being employed in that job. If you hire a guard to watch the bank, you’d expect him not to help the robbers rob the bank. If you hired a doctor to treat patients, you’d expect him to not kill them instead. But if while on the job they did the opposite of what they were hired to do, you would understand them to have abandoned their position. You wouldn’t expect the guard who let in the robbers on Tuesday to still show up to work securing the place on Wednesday, or the doctor who euthanized his patients Thursday to show up to treat more on Friday; you would understand from the moment they did these things that you now have some vacancies to fill.

Which is where we find ourselves. The degree to which Trump has refused to perform the requirements of his job, to say nothing of his regularly acting contrary to them, means that we effectively have a vacancy in the Executive Branch. Americans can no longer have any trust that he is working for us when he daily demonstrates that he is only working for himself. Or that he’ll enforce the law when he regularly transgresses it and enables others’ transgressions as well. Or that he’ll uphold the Constitution when he regularly violates the separation of powers and people’s protected rights. Or that he can be a protector of the country when he has used his position to attack it. Like with the larcenous bank guard or wayward doctor it would be irrational to believe that despite having acted in such conflict with the requirements of his job that it is a job he has nevertheless somehow still kept. Instead, by refusing to uphold his oath of office, and acting in so many ways counter to it, he has effectively abandoned the office he took that oath in order to enter.

The Constitution says that when the office is vacant there is a succession process to fill it. Where it is less specific is in instructing how a de facto vacancy, such as the kind we are experiencing, can be regarded as an official de jure one for purposes of triggering succession. But it doesn’t say we can’t, and plenty of language in the Constitution says we can, and indeed must.

Per Article II, Section 1, of the Constitution, succession happens when there is either a physical departure from the office by the President, such as through death or resignation, or a functional one, essentially measured by the “Inability to discharge the Powers and Duties of the said Office.” (The 12th Amendment, as amended by the 20th Amendment, also indicates that a vacancy is created when there is a “constitutional disability,” which would seem to include his ineligibility for the office as an additional obstacle to him being able to discharge the powers and duties of the office.) While for Trump there also remains the possibility of mental incapacity being yet another reason he is unable to fulfill the responsibilities of the office, in addition to his conscious abandonment of the position, it all boils down to the same thing: he has demonstrated that he is unable to continue serving in the role as the Constitution requires. The vacancy thus exists, and now it just needs to be officially recognized so that succession can begin.

The 25th Amendment describes one avenue for such recognition, but that particular process seems unlikely to be pursued any time soon given that it would require equally compromised cabinet members to unite with the Vice President to support Trump’s displacement, which they are unlikely to do as long as they feel they benefit from Trump remaining in office (which is, of course, a reason why Hegseth, Rubio, Noem, Bondi, etc. should also themselves all be impeached, so that there’s a snowball’s chance that more ethical people could take their place for 25th Amendment purposes). But it seems unlikely that the Constitution meant the 25th Amendment to be the sole process available for recognizing that effectively there’s already a vacancy in the presidency, for several reasons. For one thing, the way it is written it seems more attuned to articulating a plan for succession in the face of a temporary disability, like a coma, because it includes a mechanism by which the succession can be undone. Whereas abandoning the office, like Trump has done, does not seem, consistent with the spirit of the Constitution if not the letter, like something that can simply be undone without being re-elected. Furthermore, as we see here, the 25th Amendment does not correct for the sort of situation we find ourselves in now, where the people who could and should be invoking it are not, even though the essential problem remains: there is still no one currently at the helm of the United States of America doing the job in a way the Constitution requires. And such will remain the case regardless of whether Vance and company ever make a move to address it.

Impeachment is of course another appropriate option for addressing a wayward president who is not living up to the job, but it, too, cannot be the only other means for handling a situation like this, where his failure to perform the job as required has already created the vacancy. For one thing, it suffers from a similar problem as the 25th Amendment, where the right of the public to have a president that lives up to his constitutional obligations is effectively being held hostage by recalcitrant officials—this time those in Congress—who are unwilling to uphold their own oaths of office and do what needs to be done to officially extricate America from Trump’s grasp. Furthermore, impeachment is also designed to pry someone out of a job they are actually doing, and not just someone who is not, as well as apply disqualification as a sanction. It is a mechanism useful for creating a vacancy, but the need now is just to recognize that one already exists.

But that there is no other clearly established way for recognizing the vacancy does not mean there is no way. There appears to be another way. And key to pursuing it is to stop treating as President someone who clearly is not.

It would mean, first of all, challenging every bit of power Trump exercises nominally as president as being unlawful, and not just on its own terms as an act not permitted by statute or Constitution, given that most of the things he tries to do would still be unlawful even if a proper president tried to do them. The challenge needs to be that anything Trump does ostensibly as president is irredeemably illicit at its core. Give the courts the opportunity to at last find that whatever power Trump attempts to wield is power he no longer has.

Doing so would likely be an uphill battle, because no court has every nullified a presidency. To the extent that legitimacy has been in contention, the historical preference has been to settle the matter politically, rather than legally—or at least it was, up until Bush v. Gore, when the Supreme Court announced that the courts were in the president-anointing business. But it would make sense for the courts to be able to weigh in here, with respect to Trump, because why shouldn’t the Article III branch would have its own mechanism for addressing the vacancy of an absent president, especially while Articles I and II officials continue to abandon their own obligations to act in accordance with their own constitutional mechanisms. No branch should have an exclusive monopoly on policing the president, and as long as there has been judicial review, none has. The courts have long been able to hold presidents accountable to the Constitution. And while there may be no clearly established roadmap for involving the courts this way, there is also nothing preventing it.

The courts could be called upon to declare the office abandoned in various ways, and in response to challenges by various parties. Perhaps such an opportunity to challenge Trump’s legitimacy could arise if JD Vance gets ambitious and sues for a declaratory judgment that he is the actual president, because, while he’s no prize himself, at this point it certainly seems like he has a better claim to the office than Trump does. Perhaps it’s the states who can bring some sort of claim. Perhaps others who are affected by Trump’s abuse could sue too, just as they normally can challenge the lawfulness of his acts. Or perhaps the courts will have to weigh in when the military starts refusing Trump’s orders, as increasingly seems it likely will, as the ways Trump has been directing the military become more and more unlawful even on their own merits. In any case, one way or another it seems inevitable that the legitimacy of Trump’s continued presidency is going to be a question the courts will be called upon to answer, especially as the rest of our government refuses to.

And while any litigation would eventually land at the Supreme Court, such as it is, these challenges still need to be pursued because every case before it ultimately stands on its own. Even Trump v. Anderson is differentiable in key ways from the litigation that would reach it here. And hope springs eternal that this time maybe the Court will even get the question before it right, as the stakes raised by these challenges have never been more clear. Trump is running around acting with impunity, but as even the Supreme Court recognized in Trump v. U.S., immunity only attaches to official acts. And if he has already effectively abandoned the office, then none of his acts can be.

It is of course no small thing for anyone to declare a living president to have officially abandoned his office or otherwise take steps to delegitimize his occupancy in the office. Nor should it be something that easily can be done because, as we’ve seen with even just with 2020 election denial, once doubt creeps in about who is the legitimate president, the disagreement it causes can be destabilizing to our democratic order. In fact, it is likely that a big reason why Trump’s continued claim to the presidency has simply been accepted so broadly up to now, despite all the evidence, is that, by and large, we would rather delude ourselves into believing that he is the legitimate officeholder than risk the political instability of calling it into question.

Nevertheless, there are limits to how long we can maintain the myth of his legitimacy, which Trump has been daily making less and less believable. Hegemony is powerful; Trump only gets to masquerade as a legitimate president for as long as we let him. We don’t have to let him. Which is why we should appeal to the courts, as well as Congress and any politician anywhere in government, to argue not just that Trump should be made to leave but that he’s already left, and that it’s finally time for the government to respond to that reality.

It’s time to challenge his legitimacy because the Constitution does not take a time out. It does not wait for midterms. We are always entitled to a President that acts consistently with all of the Constitution’s requirements, and it tells us what happens when there isn’t someone doing so anymore. It is not for any of us to decide that this language suddenly somehow no longer applies.

In fact, it would be dangerous to, or to deliberately wait months and months to finally address the problem, while in the meantime our nation and everything we’ve built over the course of nearly 250 years is ruined. Especially not when Trump’s abandonment of the job has created the exigent likelihood that an interloper without any personal constitutional authority may now be functionally acting as president instead of him, wielding the office’s powers without any of the accountability the Constitution normally requires of someone in that position. In other words, it may not be that we are just without a president but, worse, instead at the mercy of an unelected pretender who has stepped into the vacuum Trump’s abandonment has created because we have refused to fill that void first.

There may of course be the fear that we risk a constitutional crisis to make such a serious move to deem the office vacant when the Constitution is not more specific that it is a move to be made. And it’s true; constitutional crises arise when we start making the most existentially important decisions about the nation’s governance without reference to a set of clear rules we’ve all agreed to. That we are in uncharted waters may thus give pause.

But we are not without any instruction for how to navigate them. Even though the Constitution has not provided a specific process to follow perfectly tailored to this effective abandonment of the presidency that Trump has committed, it still provides enough guidance to recognize the position is vacant and proceed with succession accordingly. If anything, it is the refusal to recognize the vacancy, especially by Congress and the cabinet, that has been what’s unilaterally and unconstitutionally changed the rules we’ve all previously agreed to, by letting Trump nevertheless continue to occupy the position when he has in every other way abandoned the job. Given everything Trump has done, and the actual text of the Constitution forbidding it, challenging his right to remain the acknowledged president won’t invite a constitutional crisis; rather, it is the failure to bring that challenge which is why that crisis is already here.

The Supreme Court released a few decisions this week. All of them are important for the parties involved, and ultimately for everyone, but not to the immediate degree that some of the other pending cases are (like the tariffs case). But one of the decisions is worth calling out, not for the decision itself, but for what Justice Gorsuch said in his concurrence and how it bears on electronic surveillance and the crisis we find ourselves in where the Fourth Amendment (along with the rest of the Constitution) is providing none of its promised protection.

The decision at issue is Case v. Montana where a unanimous Court agreed that the Fourth Amendment did not actually apply.  The justices agreed that earlier precedent still held: it will not violate the Fourth Amendment for police officers to enter a home without a warrant if they have an “objectively reasonable basis for believing” that someone inside needs emergency assistance. It is a rule that on its face does not necessarily look unreasonable.  The problem, though, is that, over time, courts have found more and more rules describing circumstances when it is ok to supersede the Fourth Amendment’s own clear rule that the people should be “secure in their persons, houses, papers, and effects” from warrantless searches and seizures. As a result, over time the public has gotten less and less secure as fewer and fewer warrants have been needed by the government.

In his concurrence Justice Gorsuch agreed with the specific holding—that this sort of emergency rule exists, even in the shadow of the Fourth Amendment, and that it applied in this case—but he took some time ruminate on why it is a reasonable exception to the Fourth Amendment’s usual warrant requirement.

Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more Justices of this Court happen to believe that such entries are “reasonable”? Or is this exception more directly “tied to the law”? Carpenter v. United States, 585 U. S. 296, 397 (2018) (GORSUCH , J., dissenting). The answer, I believe, is the latter.

The reason it is “tied to the law,” he explains, is because such an “emergency” rule would have been recognized in common law, and that rule would forgive anyone’s trespass for the purpose of giving aid, including the police’s:

Today’s decision echoes both the common-law emergency aid rule and its limitations. It does so, to be sure, in the context of a law enforcement officer, not a private citizen, who sought to enter another’s home. But on this point as well the common law has spoken, long providing that officers generally enjoy the same legal privileges as private citizens. See, e.g., Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (C. P. 1765); 1 J. Chitty, Criminal Law 36 (1819); 2 M. Hale, Historia Placitorum Coronae 91 (1736). And, reflecting the common law here again, this Court has held that the Fourth Amendment usually permits officers lacking a valid warrant to “take actions that any private citizen might do without fear of liability.” Caniglia v. Strom, 593 U. S. 194, 198 (2021) (internal quotation marks omitted).

The emergency of course does not give them carte blanche, however.  Police excused from needing a warrant to respond to an emergency “normally may do ‘no more’ than that.”

Contrary to Mr. Case’s argument, King v. Coate, Lofft. 73, 98 Eng. Rep. 539 (K. B. 1772), does not establish that the common law demanded an exacting showing of actual necessity to defeat a claim for trespass. True, Lord Mansfield explained that any necessity defense in that case would need to “stand the strictest test,” with the “necessity manifestly proved.” Id., at 75, 98 Eng. Rep., at 540. But Coate involved an effort to involuntarily “confin[e] a person in a madhouse” for two months, not a claim over a home entry. Id., at 74, 98 Eng. Rep., at 539. And it is hardly surprising that the common law would demand a good deal more to justify a serious deprivation of liberty than to excuse an invasion of property rights aimed at protecting human safety.

But what is most interesting about Gorsuch’s analysis is not how he applied the common law rule here but his larger argument that it is common law rules that should be applied to the Fourth Amendment analysis generally and not the line of precedent that has resulted since the Court decided Katz v. US in 1967.  Those subsequent decisions have instead emphasized that whether there was a “reasonable expectation of privacy” is key to determining whether the Fourth Amendment has been violated. So while Katz itself had the immediate effect of expanding the protective reach of the Fourth Amendment, as Gorsuch had earlier complained in his dissent in the Carpenter v. US case, it set subsequent precedent down a path that largely narrowed it.  As he wrote then:

Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence. Smith and Miller are only two examples; there are many others. Take Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), which says that a police helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection. In that case, the Court said that the homeowners forfeited their privacy interests because “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” Id., at 40, 108 S.Ct. 1625 (footnotes omitted). But the habits of raccoons don’t prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager. Making the decision all the stranger, California state law expressly protected a homeowner’s property rights in discarded trash. Id., at 43, 108 S.Ct. 1625. Yet rather than defer to that as evidence of the people’s habits and reasonable expectations of privacy, the Court substituted its own curious judgment.

Even in a case like Carpenter, which the government basically lost, Gorsuch still had dissented from the decision apparently because he felt the rationale was so poisoned by the post-Katz reasoning that had subsequently emerged in so many cases since. As he wrote then:

In the end, what do Smith and Miller add up to? A doubtful application of Katz that lets the government search almost whatever it wants whenever it wants. The Sixth Circuit had to follow that rule and faithfully did just that, but it’s not clear why we should.

One unfortunate way that Fourth Amendment protection has been narrowed since Katz is in the context of electronic surveillance. In case after case it has been an uphill battle to challenge programs that give the government so much information about people’s lives. Indeed, as Gorsuch had earlier worried in Carpenter, as long as the rule excusing an intrusion into what the Fourth Amendment would protect hinges on whether it invades a “reasonable expectation of privacy,” then there is effectively no protection to be had, because it simply isn’t a durable standard.  As his comment in this recent case about the “five or more Justices of this Court” harkened back to, it is subjectively dependent on the whims of the judges hearing the case.  As he also wrote then:

Maybe, then, the Katz test should be conceived as a normative question. But if that’s the case, why (again) do judges, rather than legislators, get to determine whether society should be prepared to recognize an expectation of privacy as legitimate? Deciding what privacy interests should be recognized often calls for a pure policy choice, many times between incommensurable goods—between the value of privacy in a particular setting and society’s interest in combating crime. Answering questions like that calls for the exercise of raw political will belonging to legislatures, not the legal judgment proper to courts. See The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). When judges abandon legal judgment for political will we not only risk decisions where “reasonable expectations of privacy” come to bear “an uncanny resemblance to those expectations of privacy” shared by Members of this Court. Minnesota v. Carter, 525 U.S. 83, 97, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Scalia, J., concurring).

The case this week was not an electronic surveillance case. But it is worth noting that Gorsuch is still holding fast to his insistence that the common law is still the correct lens to use to evaluate potential Fourth Amendment violations, and not the “reasonable expectation of privacy” lens that has emerged since Katz.

It should come as no surprise that our decision today might accord with the accumulated learning of the common law—just as it should come as no surprise that our application of the Fourth Amendment ought to be informed by the common law’s lessons rather than mere intuition.

Because even if building off of Katz can sometimes result in even more protection, too often it has resulted in less, despite the Fourth Amendment’s articulated protection and history.

For a period, to be sure, the miasma created by this Court’s Katz era led some to think the scope of the rights guaranteed by the Fourth Amendment depend on nothing more than current judicial instincts about “reasonable expectations of privacy.” See Carpenter, 585 U. S., at 394–395, 405–406 (GORSUCH , J., dissenting). But that confusion cannot last forever, for no one should think the rights of Americans hang on so thin a thread. Instead, and as Justice Story recognized, the Fourth Amendment is made of sturdier stuff, representing “the affirmance of a great constitutional doctrine of the common law.” 3 Commentaries on the Constitution of the United States 748 (1833).

But his concurrence here may be more than just academic; it seems like it could be read to suggest that it may be time for litigants to take another swing at challenging the government’s warrantless electronic surveillance, especially given his callback to Carpenter, a case that implicated it. Because this time, he is intimating, the Court should get the analysis right, to find such surveillance anathema under the Fourth Amendment, by using more timeless common law principles than the courts since Katz have been free to use.  Because even if the lower courts have been stuck with the “reasonable expectation of privacy” framework, the Supreme Court is not.  And this concurrence reads as a clear call for the Court to revisit it.

Such challenges would also come not a moment too soon (assuming they are not already too late) given how the government’s data collection practices are now having immediate, direct, and horrific effect on people’s liberty writ large. It is not just personal information currently being seized but actual people, aided by the warrantless collection of their data. Or, in other words, and as it seems Gorsuch understands, what is happening is exactly what the Fourth Amendment was supposed to forestall. Thus it seems time for litigants to try again, to tee up before the Supreme Court the Fourth Amendment question that electronic surveillance implicates so that the Court can back up and try again, this time directing our subsequent Fourth Amendment jurisprudence down a different path from where it strayed post-Katz, and instead lead to one where the rights of Americans, particularly with respect to their electronic data, no longer “hang on so thin a thread.” It seems there’s already at least one justice on board with finding that the Fourth Amendment precludes what the government has been doing of late, and probably more.

Postscript: It is not the point of this post, but it is worth spending a moment to also digest Justice Sotomayor’s concurrence. In it she cautions that this decision should not be taken as a blanket rule that a police officer can always rush in without a warrant when they anticipate an emergency situation. Indeed, she notes, rushing in has the tendency to create the emergency, especially given the proliferation of firearms, and that danger should count heavily on the side of the ledger against the warrantless intrusion. Nevertheless, she continued, as in this case there can be factors counterbalancing those concerns and nevertheless justify the intrusion, which is why she joined the decision. But she was careful to emphasize in her concurrence that the rule here is not that all warrantless entrances in case of emergency are allowed; rather, the rule is that an assessment of whether there is an “objectively reasonable basis” for entering needs to always be made before such a warrantless intrusion can potentially be excused.

That conclusion, on the facts of this case, does not mean it will always be objectively reasonable for officers responding to a mental-health crisis to make a warrantless entry. A different mix of information [in this case here] might have led to the conclusion that the officers’ entry itself would put the occupant (and officers) at a greater risk of escalation and serious injury. Because the “objectively reasonable basis” test, as reaffirmed by the Court today, demands careful attention to the case-specific risks that attend mental-health crises, and requires officers to act reasonably in response, I join the Court’s opinion in full.

For those who wish to tell Hilton what they think of them, here is a model letter.

Dear Hilton:

I, as well as many of my friends and fellow citizens (as social media reflects), initially read with patriotic pride the news that a Hilton franchisee in Minnesota had refused service to ICE personnel—at least initially, before you hounded them into reversing their decision (and still removed them from the Hilton chain system).  The hotel had made the right call; as one could reasonably presume from both their declared intentions, as well as recent history, ICE was in town to terrorize, if not also assault and kidnap, members of the hotel’s community. Although it is important that hostelry be available to all without discrimination, a line can often be fairly drawn to prohibit known criminal enterprises from being furthered by their residence, and, indeed, arguably must be, particularly when such business itself has such an illegally discriminatory effect deterring the business of other potential guests.

And yet, instead of allowing the line to be drawn here, you have allowed to stay in your hotels those who openly seek to harm your other guests, your own staff, and your neighbors. Worse, with your you have done so with enthusiasm and without shame. While you declare with great fanfare Hilton’s support for “community resilience,” with your condemnation of your partners who tried to protect their community you have instead actively welcomed those who would hurt it.

As you acknowledge on your website, “At Hilton, we know that every time we open our doors to guests, we’re also opening our doors to the communities where we operate.” Which is exactly why ICE wants to stay on your properties, and why that local hotel was right not to let them. For a company that also crows that, “Hilton was founded on the belief that hospitality could be a force for good in the world,” it is especially bizarre that you would so directly support such demonstrated evil, including evil that has led to people being trafficked around the world against their will and without due process. Clearly your “Hilton Slavery and Human Trafficking Statement,” the one you released to comply with the UK Modern Slavery Act 2015, is no longer an accurate one, which I’m sure the UK authorities would be interested to know.

I have been a reasonably satisfied Hilton customer up until now, as well as a member of your Honors loyalty club. I an no longer willing to be either, as long as you continue straying from your previously declared values to knowingly aid and abet behavior that is at best inhumane if not also likely outright illegal under state and even federal law. By doing so you have put us all at risk, including in your own establishments. It is simply not safe for anyone to walk the corridors of your hotels while you happily quarter, just down the hall, people known to have no compunction against assaulting those they encounter.

Perhaps your alarming betrayal of the community you profit from stems from fear of losing juicy government contracts if you refuse ICE’s business. But in prioritizing monsters with government ID over your fellow Americans, it is the latter business you will lose, starting with mine.

Please confirm that you have unenrolled me from your Honors program and that all data relating to me has been deleted. You do not get to count me among your customers, and be trusted with my data, when you demonstrate so little respect for people’s rights.

With compliments withheld,

[your name here], former customer

It is a little unclear where such a letter could be sent, as one of the few email addresses provided on their website is for Investor Relations (IR@hilton.com). Then again, Investor Relations should be caring about the loss of business and disclosing to investors how poorly company management has been handling their fiduciary duty. When it behaves so inconsistently with advertised corporate values investors need to know they have been misled.

Also, it is worth noting that I wrote the sentence about “no compunction about assaulting those they encounter” before news came through of ICE apparently having done exactly that and murdering a woman they encountered in Minneapolis. I claim no clairvoyance; it was obvious to everyone that ICE’s presence in the city was a disaster waiting to happen. Everyone, that is, except Hilton.

Update 1/8: Commenters and others have surfaced a street address for Hilton: 7930 Jones Branch Drive McLean, Virginia 22102. PriorityLetter@hilton.com also appears to be an address that responds to Honors club concerns.