“This policy punishes researchers for work the public needs and the First Amendment protects,” said Carrie DeCell, senior staff attorney at the Knight First Amendment Institute, who argued the motion before the court in May. “We’re glad the court recognized the serious constitutional harms this policy is already causing and blocked the government from enforcing it while the case proceeds.”

In today’s decision, Chief Judge James Boasberg concluded that the policy unconstitutionally discriminates against one set of viewpoints in the public debate surrounding social media. As he wrote, the policy “sweeps into the category of ‘foreign censorship’ a substantial measure of the research, reporting, advocacy, and association through which CITR and institutions like it carry out their protected work, and it does so on the basis of viewpoint, in violation of the First Amendment.”

“The Coalition welcomes Judge Boasberg’s decision, which will prevent the government from using immigration threats to intimidate and censor independent researchers,” said Brandi Geurkink, executive director of the Coalition for Independent Technology Research. “Researchers who work independently from the technology industry provide a much-needed window into the real impacts of these products on our lives and in our communities, and this policy has had a deep chilling effect on their work. Our coalition will continue to fight for the right to research free from government censorship.”

CITR members include research organizations, academics, and journalists who study digital platforms and their societal impacts. Their work helps inform public debate and enables consumers, advertisers, platforms, and policymakers to better understand emerging technologies and make more informed decisions.

“Today’s ruling is a major victory in our ongoing fight to protect free speech and independent technology research,” said Nicole Schneidman, tech counsel and policy strategist at Protect Democracy. “The court’s order allows researchers and advocates who study and report on online trust and safety to continue their important work without the fear of retaliatory visa denials or deportations while we continue to advocate for permanent relief. While this decision is an important win, this case is not over. We look forward to continuing to defend the rights of independent technology researchers.”

Read today’s decision by Chief Judge Boasberg of the U.S. District Court for the District of Columbia here.

Read more about the case, Coalition for Independent Technology Research v. Rubio, here.

Lawyers on the case include Carrie DeCell, Raya Koreh, Kiran Wattamwar, Anna Diakun, Katie Fallow, Alex Abdo, and Jameel Jaffer for the Knight First Amendment Institute, and Nicole Schneidman, Scott Shuchart, and Deana El-Mallawany for Protect Democracy.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org. 

Does it still make sense to articulate what we're seeing as violations of international law? Does it make sense to continue to invoke these principles when they seem to be no longer sustainable? My own view on that is that it does still make sense to articulate them in those terms in the current moment.

Aslı Ü. Bâli:

I think what's distinctive about the U.S.'s conduct is that one might argue that the U.S. is in fact taking aim directly at the legal system itself rather than merely engaging in lawlessness.

Madhav Khosla:

Welcome to “Lawyering Without Law,’ a podcast by the Knight First Amendment Institute, where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country's slide into authoritarianism. I'm Madhav Khosla. I'm the Knight Institute senior fellow and a professor at Columbia Law School. Joining me back on the podcast is my co-host, Katy Glenn Bass, the Knight Institute's research director. Hi, Katy. Welcome back.

Katy Glenn Bass:

Thanks, Madhav. Joining us today are two guests, Tom Dannenbaum and Aslı Bâli. Tom is a professor of law at Stanford University, whose work focuses on the laws of war, international accountability and human rights. Asli is a professor of law at Yale University, whose scholarship explores international law, human rights, and comparative constitutional law, with a focus on the Middle East.

Madhav Khosla:

We're having both scholars on the podcast to discuss the role of international law in times of conflict, the pursuit of accountability, and what the future of the international order may look like. Tom, Aslı, welcome to Lawyering Without Law.

Tom Dannenbaum:

Thanks for having me.

Aslı Ü. Bâli:

Thanks so much for having us, Madhav.

Madhav Khosla:

So just to start us off, international law is often described as a mechanism for accountability, but one question I think we might ask is accountability for what? Individual crimes, state conduct, structural violence, impunity, or the broader political order that makes repeated violations possible? Asli, I was wondering if we might actually begin with you.

Aslı Ü. Bâli:

Sure. So to begin with, I think it's a great question. And where you ended the question, which is thinking about international law as a mechanism for accountability for broader structural systems that make violations possible, is almost exactly the inverse of how international law works. In other words, international law is actually the permissive structure that makes that possible in many ways because it's the structure that regulates relations between states and sets the terms of those relations, and has done so since before two thirds of states in the international system today were sovereign. So it was the legal order that permitted things like colonialism, slavery, and the like. It only outlawed or held accountable those who challenged in some ways the order of power in which gross asymmetry is dictated, the terms on which interstate relations were conducted. That changed to some degree in the 20th century, but the system continues to bear the hallmarks of its origins in many respects.

And when we speak about accountability in the international legal system, we are speaking of something far, far narrower than the frame that you provided. For individuals, there's accountability for only a tiny fraction of the kinds of crimes for which they might be held accountable in a domestic context. In fact, the cognizability of something as a crime at the international level is very, very different than in the domestic context. There's only a narrow band of affairs that are governed through international criminal law. Accountability for states is a slightly different matter, and it also depends on how you define accountability. I think we have to shift our lens on what constitutes law away from an imagined universe of courts and police enforcement structures and executives and towards a system in which reciprocal constraint and ex ante expectations are the principle deliverables of international law in terms of constraint.

And there's a very limited repertoire of ex post measures that can be taken to hold anything or anyone to account. And they rely much more on political mechanisms than on legal mechanisms, much more on bilateral conduct between states, and sometimes multilateral conduct between states, than determinations in a court, whether it be a criminal court, in the case of individuals, or a standing interstate court in terms of holding states accountable. Having said all of this, there have been some very high profile instances of what appear to be efforts at accountability at the international level that have concentrated the mind, if you like, on the possibilities that international law could offer something more, including some version of ex-post accountability.

And there are an array of examples one could point to. The much more active and geographically broader mandate that the ICC, the International Criminal Court has, in the period since the Russian invasion of Ukraine, exercised, escaping at least from the criticisms of its first two decades, that it was exclusively a court for Africa or some high profile ICJ cases, including especially the case brought by South Africa against Israel alleging violations of the Genocide Convention, which was preceded by a case brought by the Gambia against Myanmar on similar allegations.

Andrea Sanke:

Can a case against genocide succeed at the International Court of Justice? Gambia's legal action against Myanmar for the systematic persecution of its Rohingya minority begins at the ICJ. But with the rule of international law more fragile than ever, will the Rohingya see justice, and will future cases against genocide see their day in court?

Aslı Ü. Bâli:

So there are these high profile instances that present the possibility at least of some measure of accountability. What that would mean remains a political question, ultimately. And one should understand the international legal order as an order that is structured around a set of norms that were agreed by states, consensually, but that is in effect a political system of both mutual self-constraint and of an order through which multilaterally new rules can be set again in a consensual fashion by states, not by some external grand legislator or some philosopher kings that are identifying what the best norms would be to structure the system. Instead, the norms and their content are political agreements that have been come to by states oftentimes made concrete in treaties. And for our purposes here, treaties like the Geneva conventions that regulate international humanitarian law or the way that force may be used between states once an armed conflict has been initiated, or the Rome statute, which defines categories of international crime.

But essentially what I'm saying, I guess in response to your initial question is, it's not totally incoherent to speak of accountability, but we would need to adjust our lens dramatically from the ways in which we speak of law enforcement and accountability in the domestic context to make sense of the scope of that kind of a claim at the international level. And I'll just close by saying that the likelihood of accountability is already vanishingly small in all cases across the board, if we're talking about exposed accountability at the international level, but it becomes that much more infinitesimal if we are talking about a powerful actor in the international system.

Katy Glenn Bass:

So just following on that, so we have this critique of the international legal system as something that serves to embed the world in an order dominated by powerful states and by their allies rather than supplying tools to escape that order. And then you also have, as Asli mentioned, the critique that powerful states have an easier time resisting that accountability or evading that accountability. And looking at this current moment, we have several examples, which Asli listed, of efforts to hold more powerful actors accountable under the international system. We also have a number of ongoing events, the boat strikes by the U.S. military in the Caribbean, the U.S. and Israeli attacks on Iran and on Lebanon, and Israel's attacks in Gaza, all of which clearly violate international law, but for which accountability is proving fairly elusive.

Aslı Ü. Bâli:

I'm sorry, I just wanted a two finger to clarify that I did not intend my opening to be a critique actually. I view it as just descriptive. And I do want to caution that we can't imagine an alternate counterfactual universe in which international law could be structured differently than this, in light of the realities of the actual interstate order that we are in, and that international law can't be treated as a magic wand that could somehow just by legislating normatively erase those asymmetries between states that are a descriptive reality of our world.

Katy Glenn Bass:

Yeah. No, understood. I think it's a fair point. It is also a point that is raised as a critique by many other people in terms of the ultimate failure of the international legal system to really achieve the kind of accountability we might hope for.

Aslı Ü. Bâli:

Again, just a very quick two finger, that would be a category mistake. International law can't fail on grounds on which it was never designed to perform. Because we don't have a mechanism. We have an international legal order that explicitly exempts the powerful, as through the UN Security Council in veto. It can't be described as a failure of international. And I'm sorry if this comes across as pedantic, but I just want to be clear. It's not that such a thing cannot exist at the international level, but the idea that it's a failure of international law to expose, hold accountable great powers that are not actually subject to meaningful constraint institutionally under the law, apart from the self-constraint of the norms themselves, to me, is a category mistake.

Tom Dannenbaum:

I think framing the discussion in terms of accountability specifically is capturing only a narrow sliver of what international law is about at all. And part of the problem of contemporary international legal discourse is that it tends to be drawn to the frame of accountability, to the exclusion of other mechanisms that international law is supposed to set up and supposed to facilitate. And the consequence of that is that we actually get distorted into a discussion about the wrong kind of possibility and the wrong kind of action. Because even where the accountability mechanism functions, it functions only on a very narrow level with respect to a small number of actors, and the actors against which it is effectively invoked are, by definition, those without political power in the system. But international law is also about providing a focal point for political mobilization, collective mobilization among states transnationally, political mobilization domestically.

And there, I think there are at least potentially more opportunities for invoking international law in response to violations by powerful actors. Those possibilities are being diminished by the current attack on international law and international institutions, but they do exist. And it's partly a question of political will and partly a question of imagination in terms of whether or not they can be evoked more successfully going forward. But at the initial stage, the provisional measures processes were about prevention and about providing a focal point around which multiple different actors in the system could orient their action with a view to prevention as opposed to with a view to exposed accountability. And that also then goes to how law is internalized within institutions and within governments. And when we think about how this relates to the history of international law and its facilitation of power, one way in which it facilitates the application of power is through according it some form of legitimacy.

In other words, rendering it something other than purely the naked application of power, it's the application of authority. And as international law has changed, of course it's sustained privileges for the powerful, but they've also sought to sustain the legitimacy of the exercise of those privileges through articulating what they're doing in a language that is, at least on its face, framed in more universal terms, more egalitarian terms. So I think there is an opportunity there for international law to be more effective if we reframe our discussion around prevention and collective action as opposed exclusively to accountability, and understand that there's always a trade-off when you seek to legitimate the application of power. Because the principles that you articulate to grant that power legitimacy, themselves, can be invoked in reverse.

Katy Glenn Bass:

Okay, thank you. I think one of the things that we're interested in is whether what we are seeing in the current moment, where some great powers are no longer even attempting to cast their actions under this sort of language of legitimacy under international law, is this ordinary hypocrisy under great power politics or is this a sign of a more fundamental breakdown in the authority of international law?

Tom Dannenbaum:

Yeah, so I think on the one hand, what we're seeing at the international level is an intensification of a trajectory that's been going on for several decades. So if we start our analysis subsequent to the end of the Cold War, we've seen the erosion of the law governing the resort to force across multiple different instances, whether it's the intervention in Kosovo in 1999, the invasion of Iraq in 2003, or the extension of armed conflict beyond the scope of what was authorized by Resolution 1973 and 2011, in relation to Libya.

So we've seen this erosion of the law governing the resort to force. That is also being paralleled with an erosion of international humanitarian law, the law governing the conduct of hostilities, through the Torture Memos; the expansion of the concept of what the battlefield is, where armed conflict exists, and for how long it exists; the notion of forever wars and detention without any criminal charge or any foreseeable endpoint; targeted killings based on dubious standards of who qualifies as a combatant in armed conflicts far from the space in which active hostilities are taking place; and attacks on objects that are defined as military objectives because they support the economy of the adversary, as opposed to because they directly support military action.

All of those kinds of phenomena have been going on over the last several decades and the United States has been a key agent in the erosion of those principles. So what we're seeing today is in a sense an intensification of that. But I do think there is also a step change and a qualitative change that renders this different in kind, not just different in degree. And I think that's characterized by four different components of what's happening today. One of those components is the brazenness of the violations. In other words, the violations occurring without even a basic effort towards a legal argument to justify them. Another component is the rhetoric around the violations, that the violations are occurring alongside statements by the Secretary of Defense, by the President of the United States, and by multiple ministers in the Israeli government, that are overtly contemptuous of the notion that law can constrain or should constrain these actors in the pursuit of their foreign policy objectives.

Pete Hegseth:

America, regardless of what so-called international institutions say, is unleashing the most lethal and precise air power campaign in history, B2s, fighters, drones, missiles, and of course, classified effects, all on our terms with maximum authorities. No stupid rules of engagement, no nation building quagmire, no democracy building exercise, no politically correct wars.

Tom Dannenbaum:

A third component is that this is taking place alongside direct attacks on international institutions, and indeed, efforts to dismantle domestic institutions through which international law would be applied. So in the United States, that would include firing the top JAGs within the military, dismantling the Civilian Protection Center, significantly diminishing the number of individuals working on civilian harm mitigation in the Department of Defense. Internationally, it would include the sanctioning of six ICC judges and three ICC prosecutors, multiple civil society organizations, UN Special Rapporteur, and defunding the United Nations. And then the fourth component is that all of these things are happening not just with one violation, but across multiple violations that are occurring with a cadence that is analogous to the flooding of the zone that we see in the domestic context, which make it much harder for states to organize collectively in response because there's violation after violation after violation.

The attacks on Iranian nuclear facilities last year, the abduction of Nicholas Madura, the bombardment of Iran, the invasion of Lebanon, that's not even considering what was happening before the Trump administration in Gaza and elsewhere. And these things are happening with such pace that it becomes almost impossible for states collectively to respond in an effective way. And those four things in combination are basically an attack on the notion that international law can be a relevant factor in how states engaged diplomatically, how they frame that engagement in terms of the language of justification and legitimation. And that, from my perspective, entails a qualitatively different threat to the viability of international law as we know it from the erosion that we've seen over the last several decades. Which itself, to be clear, was obviously significantly diminishing of the viability of that legal framework already.

Aslı Ü. Bâli:

I think I agree with the empirical description that Tom gave, and have just a slightly different analysis of its meaning. So first, I think the practices over the three decades plus now, since the end of the Cold War, of the United States in reinterpreting categories of law in a permissive direction that erodes both the prohibition on the use of force and the protective character of international humanitarian law is just indisputable. And is a parallel to what we talk about at the domestic level around modern authoritarianism, which is not lawless, but rather uses a kind of legalism to authorize itself and redefine the norms in ways that become more and more permissive of kinds of concentrations of power that authoritarians like. And actually, I think there's a convergence here, especially around 9/11, where U.S. preferences, domestically, to dramatically expand the national security state and concentrate power in the executive were then uploaded in ways that Kim Scheppele and her work has ably described to the international system through UN Security Council resolutions.

And so you had international law actually reinforcing these authoritarian practices, demanding that states adjust their own internal jurisdictions to adopt counter-terrorism framings and counterterrorism finance framings, et cetera, that basically eroded core constitutional protections domestically around privacy, around property, around procedural protections in the criminal context, and on and on. So we've had this kind of symbiotic relationship in the international changes, introduced by the U.S. largely as a consequence of its own unipolar hegemony at the moment at which the post-Cold War period began, and then its own astonishing over response to the 9/11 attacks and their aftermath. So that was just a secular trend. And it was one that not only paralleled, at the international level, some of the things we've expressed concern about at the domestic level, about authoritarian legality, but also, itself, engendered authoritarian legality within the domestic jurisdictions of the states that happily accepted these resolutions and legislation that led to the concentration of power and their executives, and eroded democracy essentially everywhere.

There are other ways in which I think we see extensions of the same concerns from the domestic arena of authoritarian legality to the international arena, including the ways in which there is a misalignment in the work of professional international lawyers and their role responsibilities towards public law commitments versus their perceived client, or whoever, that leads to the lawyers treating their responsibility in international law as sort of management of sovereign risk or reputational harm or sanctions exposure, or whatever it might be. And therefore, directly contributing to this authoritarian legality by participating in the re-description, redefinition of the norms, authorizing them, legitimating them, furnishing arguments, both inside of government and outside of government, with revolving doors. What we are now witnessing, at the international law level, is the consequences of the unraveling of the imperial order on which the post-World War II international legal system depended. Which was a U.S. willingness, however limited, however episodically subject to defection, et cetera, to engage in a enlightened self-constraint as the patron of an international legal institutional and normative order from which it disproportionately benefited, and therefore was willing to continue to confine itself.

So all of the things that Tom described were things that either the U.S. has done or the U.S. has enabled its allies, especially Israel, to do. What we're saying is, the crisis for international law is a crisis that's being driven by American behavior. And that American behavior, to my mind, is continuous with a three decade period in which you had first the apex of American unipolar power and then the continuous relative decline of that power. Not necessarily because of something the U.S. has done, but because of the reality of shifting distributions of power, the rise of China, the reconsolidation of Russia, a series of things that gave the U.S. less latitude ultimately to dictate terms to its own liking, and forced it to resort more and more often to implausible stretches of existing international legality, as with the Iraq war and with Libya. But today, we have a universe in which the U.S. is now hedging, possibly, against meaningful constraint by international law, in my view.

So that is to say, now, as the distribution of power becomes even more unfavorable and where there's a real possibility of the rise of rivals that, either in the economic domain or in just their capacity to wield political coalitions in their favor, can actually challenge the United States. Not just irritate it at the borders or impose constraints in its periphery, but directly challenge areas of authority in which the United States is deeply invested. The United States is not sure it's willing to tolerate any level of constraint by international law, while at the same time it also understands the ways in which its own legitimacy and authority is parasitic on the claims of international law. And so it does both, and it continues the path of authoritarian legalism by constantly returning to some language of the norms, however implausible, to present argument that there's self-defense against Iran. Iran has been engaging in acts of terrorism and attacks on the United States and Israel for decades, and this is simply self-defense.

Submitting Article 51 letters, creating the Board of Peace. Speaking of it as if it's a rival to the UN Security Council, astonishingly, given the continued asymmetric advantage that the United States enjoys in the Security Council, but then going to the Security Council to get authorization nonetheless for that Board of Peace. So it's both attacking international law in the places where it worries it might face any constraint, and then simultaneously reauthorizing its own conduct through the lens of international laws. It's both willing to continue to work with the existing international legal order and institutions when it believes that they're going to remain arsenals in its own toolkit, largely favoring its power and simultaneously devalue international law because of the worry that another actor might be able to equally well leverage those institutional benefits, and against the interest of the United States.

And that I think is a story less about something changing in international law, as such, than a changing distribution of power, which may result in very serious damage to the international legal order. But it's not yet clear that that's the case. It may also be true that there are states with enough of a stake in the institutions and norms, as they are presently constituted, that they might rally to the defense of this order, notwithstanding the defection of its principal author, which defection has been building for decades.

Tom Dannenbaum:

So I agree with much of what Asli said, with a couple of caveats. There was an alternative path, where the United States, recognizing the unique privileges it has within the existing international legal order, would've done everything possible to shore up that legal order precisely so as to sustain the privileges that it has within that order. And what the current administration is doing is I think the opposite of that. I don't completely disagree with the hedging analysis that Asli gave, but it's definitely not seeking to shore up this legal system. It's engaged in all-out assault on it. Even with respect to the hedging, I would just offer a slight caveat. So when we look at, for example, the Article 51 letter regarding the attack on Iran. Article 51 letters are letters provided to the Security Council that articulate the resort to force in which the state in question is engaged, is compliant with Article 51, which is the article that provides the right to self-defense under the UN Charter.

That letter is fairly astonishing for its total lack of legal argument. It declares that the United States is acting in self-defense, but it provides no cognizably legal argument for how self-defense follows, from what it's describing. It doesn't identify a specific armed attack. It doesn't identify an imperative to respond to that armed attack. Even when it's describing Iranian proxies, it doesn't articulate a theory of attribution that sounds in the standards of international law. It doesn't articulate an attack that those proxies have engaged in, that would be attributable to Iran, that would generate a right of self-defense. It just doesn't provide a legal argument at all. That's different from the, I agree, implausible arguments that the United States and the UK offered in support of their invasion of Iraq in 2003. I think the violations are equally grave. It wasn't plausible for many reasons, but it was a cognizably legal argument.

And that's different from what we're seeing today, which is, on a very superficial level, a recognition of Article 51 as the prevailing doctrine. But when you actually look at the content of the letter, entails no meaningful engagement with that principle or that structure of restraint on when it's appropriate to resort to force. If anything, it looks more like the kind of declaration of war you would have in the pre-charter and pre-Brian Kellogg Pact era, where states had the sovereign prerogative under international law, as it was understood at the time, to declare war and then resort to war on the basis of that declaration. This looks more like that, to me, than a meaningful engagement with Article 51.

And the only third thing I'd say is that the United States is the primary agent of the threat to international law because it's the most powerful actor in the system, but it's not the only one. Russia's invasion of Ukraine is also a key component of this, and China's actions in the South China Sea are also a component of this. It's just that the United States has been overwhelmingly the most powerful actor. And so when it engages in this kind of conduct, it creates a graver threat to the viability of the system as a whole.

Aslı Ü. Bâli:

One quick note on the points on Russia and China. I do think it's important to distinguish between attacks on the law and violations of the law. So one can take the position that Russians are plainly in violation of international law, or that the Chinese are, without drawing the conclusion that either of those actors is actually at war against international law. I think what's distinctive about the U.S.'s conduct is that one might argue that the U.S. is in fact taking aim directly at the legal system itself rather than merely engaging in lawlessness. There are some idiosyncrasies about the Trump administration that distinguishes it from all other American administrations, quite apart from questions of law and its orientation to law, which is its sort of ranking competence as a consequence of its purging of competent people from the state. It's kind of clownish approach towards traditional understandings of the wielding of power and what authority means and what sources of legitimacy are.

So it's the Trump administration's out of keeping with American conduct and practice with respect to law, but also politics, and any number of other things, economics, et cetera, across the board, advancing almost caricatured versions of policies that have their roots in the way that the United States has conducted itself, as above the law and outside of the law and outside of constraint, for decades. But now, taking it to an extreme and in a kind of vulgar expression of it. And that's true, not just with respect to international law, that's equally true in domestic courts when Trump administration lawyers seek to present, what you might imagine would be arguments where arguments are available, and yet they fail to make them or fail to appreciate that they're available, and instead present a sort of political or ideological presentation as if it were a legal argument before baffled federal judges, over and over again, which is why we have what others are viewing as a revolt of the district courts.

But actually, it's just the district courts really scrambled to try to understand what they're supposed to do with arguments that don't correspond to any actual existing legal framework or doctrinal constraint, et cetera. Until you get to the Supreme Court, you don't see the Trump administration, or maybe some of the appellate courts, even trying to deploy arguments that sound or resonate with what are ordinary legal practices in the federal court system. So some of that conduct, I think, like the content of the Article 51 letter, I don't disagree on. In fact, we saw this in the first Trump administration, strikes on Syria.

And then, astonishingly, because other states in part interpret their stake in the continuity of the norms and the order as requiring them to show fealty to the United States or furnish arguments about U.S. conduct, that even the U.S. is not bothering to provide itself, and so somehow, they start generating arguments about the validity of the action against Maduro, or the validity of the action against Syria, where it has no legal basis at all, and in fact, flouts the very core norms of the system that make the system of sovereignty even cognizable. And yet they rush to try to furnish some arguments, while the U.S. remains silent, as to whether there's any legal rationale being presented. But it's hard to parse whether that's an expression of some kind of commitment around institutions and norms or if it's genuinely the kind of recklessness with which the wrecking ball is being wielded by the United States. Not deliberately against international law, but just willy-nilly, as a general matter, without very much concern for even the most short-term consequences, let alone medium and long-term consequences of the conduct in question.

Madhav Khosla:

So Tom and Aslı, some of this, about the extent to which international law is working in similar ways or in different ways, and the extent to which the system is broken or actually functioning perhaps as it always was, or is facing some new kinds of pressures, some of this implicates and necessarily involves actually international lawyers. And some of the things that you both spoke about that came up, just to give a prominent example, Torture Memos. It's hard to think about something like that actually in the absence of the role of international lawyers. And in fact, even insofar as one thinks about critiques of the international law system or open rejections of it, some of that is in fact even being articulated by lawyers themselves, who are framing in some ways that whole international legal order as not in fact being just or legal or fair, or something like that.

And I was wondering if we could slightly pivot to a theme that has been pretty central in this podcast, namely the legal profession's role in upholding the rule of law and in resisting democratic backsliding. And a lot of our previous episodes have focused on lawyers working within national systems, primarily, though not exclusively, the U.S.. How do you think we might think about the professional obligations and responsibilities of international lawyers? And in what ways might they be different from domestic lawyers?

Tom Dannenbaum:

Well, I think one component of this, as Asli already mentioned when she spoke about lawyers engaging in strained interpretations with a view to facilitating the action of their state specifically, or limiting the liability of their state specifically, rather than providing independent legal advice that seeks to, in a good faith manner, apply the legal constraints as they are applicable. And one reason why that kind of strained interpretation is particularly unethical, or particularly inconsistent with any plausible notion of legal ethics in this space, is that often those lawyers are the last voice that a decision maker hears on the law before inflicting violence or other irreparable harm on persons who have no way of having their rights represented on their behalf in the system of decision-making that leads to that irreparable harm.

And so where that's the context in which one's operating, it's, I think, obviously completely implausible to think of one's role as the role of a zealous advocate of a specific client. Because you're not operating before an impartial third actor that is going to hear the claims of the person who has adversarial interests, and then make a determination according to the clash of those competing arguments. You are providing analysis to a decision maker who has some form of extraordinary power that's going to be inflicted on persons who have no power in this decision-making process, and your legal input is going to provide them the shield or cover to inflict that harm or not.

And so, in that context, the bare minimum one can do is to seek to, in a good faith way, and independently, assess the legal constraints to which that state has agreed and consented as the outer limits of how it can apply that kind of power on persons under international law. And so in that context, I think the legal analysis that we saw in the OLC opinions that underpin the torture regime under the Bush administration, are just flagrantly in violation of any plausible concept of legal ethics. And anybody who takes on that role has to see themselves as constrained by a different model of lawyering, that's not lawyering on behalf of a client and advocating, but lawyering as a mechanism of constraint on the otherwise unbridled application of power.

Aslı Ü. Bâli:

I would totally, 100 percent, agree with everything that Tom just said. In a way, lawyers, as a profession, the legal profession is structurally even more powerful in the international domain than it is in the domestic domain, for the very reason he described, in the absence of world government, for the most part, in the absence of adjudication or any really countervailing force, to the argument made by international lawyers and advising states as actors. There is enormous power in how those arguments are forwarded, and moral exposure. And then there's also enormous professional rewards for remaining within that role in a way that is unethical, and embraces this client service model rather than a model in which the international lawyer providing that advice has an obligation to the public law norms of their profession and of the underlying order and its enormative commitment. So as the authors of the Torture Memos went on to become a professor at one of the leading law schools in America and a federal judge on one of the most powerful appellate courts in America, that was the sanction they faced.

And I should note that they were providing lawyering advice in a context in which there's actually a bar that could hold them liable for malpractice, if they chose to. But in many instances, international lawyers are operating in places where there is no such ethical guild that governs the profession as a whole, and outside of any kind of standard. Even within that standard, as I say, they were rewarded rather than held accountable in any meaningful sense. Only in the most extreme cases, as with, for example, when there were finally public inquiries in the UK, and notably not in the United States, about the quality of the legal advice that was provided in advance of the Iraq war. But that's an extraordinary example, very rare that you would ever have that kind of return to the underlying advice that's given, or even a counterparty who will press back or push back on that legal analysis in a way that actually is relevant to the decision maker in question. No state's decision maker is going to take note of the legal advice emanating from another state's legal advisor. So it's not adversarial in that sense.

And then, as I say, they often serve in this kind of revolving door fashion, where the very fact that they held senior position in government, or were capable of giving advice, becomes its own qualification to then be a scholar and academic producing scholarship, that then further legitimates the positions taken while in office. And then you have an ecosystem, especially in the Anglo-American or English language international law literature, that furnishes... It's just a completely self-referential closed loop, where people advocate implausible positions while advising government around unwilling and unable. Then they come back into academic positions and write articles defending that position. Then they go back into government and act on it, citing the articles that they or their colleagues have published. It's really a kind of lawless world of its own that raises very serious questions about the professional responsibility and accountability that lawyers themselves should be held to.

Tom Dannenbaum:

So there's another way of understanding this question, which is less about the ethics of government lawyering in the context of international law, or even the ethics of the revolving door relating to government and academia. And that is instead about the question of what we, as participants in international legal discourse right now, should be doing in the face of the crisis that we have identified occurring in international law. Whether you identify it as part of a long-term trajectory or a step change that is still within that trajectory, but maybe qualitatively distinct, whatever one's view on that, there is a question of how we respond to the reality of this obvious existential threat to the international legal system. And does it still make sense to articulate what we're seeing as violations of international law? Does it make sense to continue to invoke these principles when they seem to be no longer sustainable?

My own view on that is that it does still make sense to articulate them in those terms in the current moment. One reason for that is that I think that the two components of the challenge to international law that are mostly about rhetoric and institutions, namely how the administration is framing its contempt for international law through the rhetoric of the Secretary of Defense, the president, and the fact that it's attacking institutions like the International Criminal Court, are themselves responsive to a recognition by the administration that international law is not completely meaningless. Another way of putting that is, it doesn't make sense to sanction ICC prosecutors and judges, and to devote political capital to an attack on this institution, if you think the fact of the arrest warrants for Netanyahu and Gallant, and the fact of a possible, although obviously extremely unlikely, investigation of U.S. officials for war crimes in Afghanistan is meaningless.

If those things are meaningless, why even pay any attention at all? The reason they're paying attention to them is because they recognize that international law still has some validity or utility in international discourse in diplomatic collective action, in the way that certain actors are considered as having legitimacy, or not, in the way that they are outcasts, or not. Such that, for Netanyahu, the threat's not that he's going to be arrested tomorrow, that's obviously extremely unlikely. It's basically inconceivable because he's not going to travel to any state that would arrest him. But he is suffering an enormous legitimacy deficit associated with what has happened in Gaza and the West Bank, frankly, and Lebanon. But also, the fact that an international institution of the status of the International Criminal Court has responded to that by issuing arrest warrants for him and his former Secretary of Defense for their participation in that.

And what the Trump administration is trying to do is, in my view, is completely obliterate the institutional focal point of that kind of response, and deny that there is any way in which we should recognize what the Israeli government has done as illegitimate. And in the face of that, I think it would be an extraordinary capitulation to just say, "You know what? They're right. None of this matters. It's all power." When they, themselves, in virtue of having devoted these political resources to trying to attack this system, are recognizing that it still holds some sway, that there is still some effect to these kinds of actions. The second reason why I think it's important to sustain that response, sustain the response of articulating these things as clear violations of international law is, notwithstanding the fecklessness of some states, prominently states like Germany or Canada, that are essentially willing to withdraw any commitment to international law that they've previously invoked in other contexts when it is politically inconvenient in relation to their connection to the United States or Israel.

There are other states that have actually taken leadership roles and have taken significant actions to try and invoke this legal framework, and invoke it in creative ways, whether those are states that are more aligned with the U.S. than any other powerful actor in the system, such as Spain or Norway, or whether it's other states, such as South Africa, litigating at the International Court of Justice, or The Hague group that is seeking to mobilize around preventing arms transfers and invoking universal jurisdiction, including in Florida, that haven't previously been the primary sites of universal jurisdiction cases, or other actors in the system, including civil society organizations in some of the seats of power from which these violations are emanating. And so I think there is still that activity in the system, and to give up on that while that activity is occurring, including in ways that are to a certain extent unprecedented, I think would be a mistake.

And then the final reason I think it would be a mistake to cease invoking international law and seek identifying these violations is, whatever emerges from this current crisis, it's obviously not going to be just a snapback to what we had in the mid 1990s. And then for reasons, as I mentioned earlier, I don't think that would be desirable anyway, but it is going to require a re-imagining and reconstructing of an international legal order. And part of the foundation of that is going to be identifying what needs to be salvaged from the current legal order, and then trying to sustain those principles as part of the foundation for orienting around a new legal order. And the most fundamental question for any international legal order relates to the resort to force, because everything about how international law works is in part predicated on, under what conditions can states resort to force? And so to give up on that because we're seeing brazen violations of it, would, I think, be an enormous mistake.

Aslı Ü. Bâli:

I'll just chime in to agree with Tom. I don't think any of us who are teaching international law can take a position that international law doesn't exist or should be simply disregarded or set aside. And the resource that it provides, which is made clear in the examples that Tom gave, is the possibility of imminent critique. That is the possibility of using these norms and institutions to advance a critique of the conduct that we wish to see constrained. And one that, even if it doesn't prevail in the sense of traditional accountability, where we began this original conversation, it does prevail in reshaping the political context in which the action is unfolding, increasing the costs to actors that are engaging in violence and violating the rules in ways that, for example, most recently have resulted in the restraint being imposed on, at the moment, for example, Israel. Because there is a circumstance in which you have global revulsion at the conduct of the state that is itself framed by things like, UN Commission of Inquiry, once again, finding that this is genocidal conduct deliberately targeting children.

Having that shared language, having a way to describe the world and categorize and organize the world, and this kind of conduct, in shared and consensus-based classification of what is and is not permissible in the system, remains incredibly valuable. And it's valuable in part because, as Tom said, it may be the case that we're moving into a new international legal order. It's not clear to me, again, that we are at a place of complete unraveling now of this order, either its norms or its institutions. We'll see, but it may be too soon to come to that conclusion. And so it may not be replaced so much as continue to have modest reforms at the margins, as it has done for decades. But those reforms have shown some significant gains, particularly for countries of the global South. And The Hague group could be understood as essentially a coalition of the Global South, trying to leverage support from middle power states that now feel threatened by the defections that they see around them, and as well as the potential for then unconstrained spheres of influence to emerge.

And so what it really points to is, the alternative to this international legal order is not another new international legal order, but actually no shared multilateral institutions, and instead silos of regional power that don't have either a shared vocabulary across them or a shared institutional frame. And the purpose of that frame, and the original logic of the architecture that was created in the wake of the Second World War, was to find ways to channel into institutions forms of competition so destructive that they actually threatened planetary extinction. That was the reality of the post-Hiroshima Nagasaki endpoint of the Second World War. And it's once more made vivid for us now in a way that I think for decades it hasn't been, that the alternative to the international architecture is not a different, better international legal architecture, but potentially no shared legal architecture or institutional architecture, in which we wouldn't have that shared language or capacity to wield influence or engage in imminent critique.

So regardless of how far we think the existing norms and institutional structures fall short of some ideal justice standard, they actually represent something that is a significant increment of improvement over the alternative. And I very much worry that the sort of critical impulse to say flagrant violations mean there is no international law, is an impulse that only accelerates the very things that those expressing those worries are most concerned about.

Katy Glenn Bass:

I think that's a really interesting insight to end on. Tom and Aslı, this has been such a wonderful conversation. Thank you so much for taking the time to join us on Lawyering Without Law for our final episode. We really appreciate it.

Tom Dannenbaum:

Thank you very much for having us.

Aslı Ü. Bâli:

Yes, thank you for having us.

Madhav Khosla:

Thanks so much for being with us.

That's it for this season of “Lawyering Without Law.” You can explore all six of our episodes wherever you get your podcasts. And you can learn more about the Knight Institute at knightcolumbia.org. That's Knight with a K, and follow us on social media.

Katy Glenn Bass:

“Lawyering Without Law’ is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote. Fact checking by Harriet Engelke and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show was designed by Jay Vollmar. Thanks to Tom Dannenbaum and Asli Bali, who joined us for this episode. And thank you for joining us throughout this series. We're grateful for your curiosity, your attention, and for your engagement in these conversations.

In March, a federal district court preliminarily blocked enforcement of the executive order, holding that the order violates the First Amendment because it coerces third parties to end their protected expressive and associational activities with CAIR. Gov. DeSantis appealed the district court’s decision.

The Institute’s amicus brief argues that the order violates the First Amendment because it singles out CAIR for punishment based on the organization’s purported viewpoint and was issued to suppress disfavored ideas. It explains that the order cannot survive any form of heightened scrutiny and is therefore unconstitutional.

In a separate lawsuit, CAIR is challenging recently enacted Florida laws that allow state officials to designate groups as domestic terrorist organizations based on unproven allegations.

Status: Briefing on appeal ongoing; amicus brief filed July 9, 2026.

Case Information: CAIR Foundation, Inc. v. DeSantis, No. 26-10735 (11th Cir.).

“The First Amendment doesn’t allow the government to blacklist advocacy organizations simply because officials disagree with their views,” said Xiangnong (George) Wang, staff attorney at the Knight First Amendment Institute. “Gov. DeSantis’s executive order is a dangerous attempt to punish an American civil rights organization based on its perceived ideology and associations. If the executive order is allowed to stand, it would embolden state officials of all political stripes to target advocacy groups they disfavor.”

Executive Order 25-244, titled “Protecting Floridians from Radical Islamic Terrorist Organizations,” labels CAIR a “terrorist organization” and directs Florida agencies to deny the organization and those who provide it support access to contracts, employment opportunities, funding, and other government benefits and privileges.

The brief argues that the court should subject the executive order to the most stringent constitutional scrutiny because the order singles out CAIR for punishment based on the organization’s purported viewpoint and is motivated by a desire to suppress disfavored ideas. It also explains that the order cannot survive any form of heightened scrutiny and is therefore unconstitutional. The brief explains that the order prevents CAIR from engaging in important advocacy work and chills the expressive and associational rights of those who wish to work with or support CAIR, and it warns that accepting Florida’s defense of the order would give governments extraordinary authority to target and punish a wide range of groups for their protected speech and association.

In March, a federal district court preliminarily blocked enforcement of the executive order, holding that the order violates the First Amendment because it coerces third parties to cease their protected expressive and associational activities with CAIR. Gov. DeSantis appealed the district court’s decision.

In a separate lawsuit filed earlier this month, CAIR and its Florida affiliate are challenging recently enacted Florida laws that allow state officials to designate groups as domestic terrorist organizations based on unproven allegations.

Read today’s amicus brief filed in the U.S. Court of Appeals for the 11th Circuit here.

Read more about the case here.

Lawyers on the case include Jameel Jaffer, Alex Abdo, Anna Diakun, and Xiangnong (George) Wang for the Knight First Amendment Institute; and Corey Stoughton and Dylan Jarrett for Selendy Gay PLLC.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org 

Across recent decades, much has been learned about system vulnerabilities that can be exploited by political actors interested in weaponizing science for public harm or private gain. Several key challenges are apparent.

Authority versus politicization risk. Who should hold the authority on matters of scientific integrity and where should that person be positioned within agencies? Placing a scientific integrity officer in a research office places them close to the scientific activities they oversee and farther from political appointees who may seek to inappropriately influence science activities. But this positioning can be removed from policy matters and removed from the level of authority necessary to adequately oversee scientific integrity across an agency or department. By contrast, placing scientific integrity authority closer to the political level, such as designating scientific integrity authority to a politically appointed chief scientist will instill more authority for matters of scientific integrity, but relies on a good-faith actor in that role. In either case, what happens when it is the political heads of agencies who are accused of scientific integrity violations? A scientific integrity official may not feel empowered to act.

Blurred lines between science and policy decisions. While it is a clear violation of scientific integrity when a political appointee changes a number on a scientific report to achieve more politically convenient math, or when a scientist is muzzled from speaking about a politically sensitive finding, many scientific integrity challenges occur at the science and policy interface—places where it can be unclear what is a scientific decision and what can and should be a political decision. How can the public discern whether scientific integrity was compromised if this distinction is blurred? This lack of transparency in science policy processes can make it easier for political actors to interfere with science for political purposes. 

The challenge of durability. The second Trump administration has made abundantly clear the need for mechanisms and authorities that sustain scientific integrity across administrations, even in hostile environments. In a single executive order on May 23, 2025, the Trump administration erased much of the progress that was made under the Biden administration on scientific integrity. While some agencies have persisted, the president’s move made apparent how vulnerable the entire apparatus was to a president uninterested in the project of respecting science in government. 

Future scientific integrity efforts must be different. They must be stronger. They must be more integrated into federal activities and authorities. And we know the formula: Reimagined scientific integrity infrastructure in the executive branch must have transparency, independence, and authority.

1. Transparency

First, there must be greater commitment to transparency in the process by which science informs decisions across the government. One opportunity is to allow the public to submit allegations of scientific integrity violations and for those submissions to be publicly posted. This would allow the public to see where challenges may exist and provides an avenue for public interest groups, watchdogs, and members of the public to raise concerns. Such a system would also create external support and political cover for scientific integrity officials to investigate matters of high public interest, even if these matters are politically inconvenient to agency leaders or involve senior agency leadership, because there would be public pressure and an opportunity for accountability.

We can also require public reporting on scientific integrity. This was a requirement under the Biden-era scientific integrity framework but could be made stronger by linking scientific integrity reporting to congressionally mandated reporting, requiring reporting in the context of agency budget requests, or other “built-in” processes. Such transparency and integration in public reporting requirements would allow for more cross-agency assessments and trend discernment that can inform future improvements. Seeing how agencies compare can allow for healthy competition and improvement across administrations and provide additional scrutiny and support for underperforming agencies where scientific Integrity issues persist. To facilitate such transparency and cross-agency coordination over future administrations, the National Science and Technology Council (NSTC) Subcommittee on Scientific Integrity could be codified into law, the way some other subcomponents of NSTC are.

2. Independence

The independence of federal science activities is critical, both for the US science enterprise itself to thrive and for science activities to play their critical role in our federal system of checks and balances. Government scientists collect and share data critical for the nation, speak out when scientific information is misused and ignored for public harm or private gain, counter disinformation from political leaders, and ensure scientific truth reaches the public. But those functions only happen when the independence of federal science is preserved and government scientists feel empowered to do their jobs freely.

This can be achieved when career civil servants’ jobs are protected and mechanisms for clear distinctions between science and policy are developed and enforced. In laws like the Clean Air Act and the Endangered Species Act where provisions require decisions based on science, it is publicly known where the science ends and the policy decisions begin. But many decisions do not have this clear delineation either in agency structure or law, so scientific integrity must be safeguarded through other mechanisms of separation.

Federal statistical agencies, for example, have clear practices and protocols that buffer data collection and publication from political influence. These mechanisms could be expanded to other federal science activities and agencies, such that science and scientists are better protected from political influences, and federal employees are empowered to freely speak up, push back, and serve as guardians of the science and truth. Such measures to enhance the independence of federal science also combat corruption, because they allow federal science and scientists to share reliable data and scientific truth, even when political actors seek to obscure it. Federal scientists, in other words, keep the score.

3. Authority

For scientific integrity policies and practices to be recognized and enforced across the government, they must be governed by officials with a necessary weight of authority. One way to achieve this is to integrate scientific integrity infrastructure within other existing federal authorities and processes. Such integration would have several benefits. It would put the responsibility of shepherding scientific integrity into the hands of more senior officials. This would help sustain scientific integrity infrastructure across administrations, because the principles and practices would be ingrained across more people and processes throughout the government. Across the U.S. science and technology landscape, there are several key actors that could have expanded roles on scientific integrity, such as the comptroller general; the Government Accountability Office; inspectors general; the National Academies of Sciences, Engineering, and Medicine; the National Academy of Public Administration; the National Archives and Records Administration; and the Office of Special Counsel.

Codifying such roles in federal law, such as the Scientific Integrity Act introduced in the 119th Congress, is a key strategy for achieving integration with aligned and authoritative institutions. The Scientific Integrity Act would require federal agencies that fund or conduct research to adopt and enforce scientific integrity policies, helping protect federal science from political interference and ensuring that research findings are not suppressed, distorted, or manipulated. Enacting legislation of this kind would be an important step toward building a more durable scientific integrity infrastructure that can withstand changes in administrations while strengthening transparency, accountability, and public trust in government science.

Creating and implementing mechanisms that adhere to this framework of transparency, independence, and authority across the executive branch will ensure not only that the US science and technology enterprise can thrive, but also that any scientific integrity infrastructure provides anti-corruption measures and bolsters the nation’s democratic processes and institutions.

In one telling, the rise of platforms and erosion of legacy media and journalism are to blame. To address this, many proposed reforms focus on subsidizing the news industry, believing that doing so will bolster the production of journalism and other civically valuable knowledge goods. But—as I explain below—these attempts will likely fail. In particular, structures that compel payouts from platforms to news industry actors create new forms of dependency on tech companies. They also wrongly assume that the news industry in its current form will choose to invest in investigative journalism and other high-value news. As I explain below, a different—and in some ways better—model would harness the government’s spending power to subsidize and support journalism.

First, a brief recap of the existing tensions between news institutions and platforms. The emergence of large platform intermediaries redirected reader attention and advertising dollars away from news organizations and toward social platforms. Social media exploited this shift when they throttled traffic to external websites in order to capture news organizations’ audiences and capitalize on continued engagement within their own walled gardens. With the rise of large language models and chatbots, traffic to many news websites may collapse, auguring a new era of desperate searching for new revenue streams.

It would be incorrect, however, to place all the blame for the challenges currently facing journalism on platform companies. The ownership of news organizations has shifted: Half of the nation’s newspapers are owned by hedge funds, while other leading news organizations are personally controlled by billionaires or wealthy families. News organizations have backed away from investigative journalism in pursuit of stories that boost web traffic and pageviews. Political attacks and social distrust also undermine journalism. Under the second Trump administration, federal funding cuts have kneecapped many public broadcasting stations, and FCC Chair Brendan Carr has pledged to revoke broadcast licenses as punishment for negative news coverage. National surveys demonstrate that trust in the media is both deeply polarized and on the decline.

Together, these shifts have significantly weakened legacy media’s ability to perform the core functions they long were thought to fulfill. First, journalistic institutions performed a watchdog or checking function: They produced journalism that advanced accountability and limits abuses of power. Second, news media informed the public and thereby made it possible for individuals and groups to participate in the project of democratic self-governance. Third, news industry actors often championed transparency and expressive rights, litigating significant cases to obtain access to government proceedings and records and defend the essential rights of newsgatherers. Economic, political, and technological change threaten all three of these functions.

What should be done to ensure that these core functions remain viable? Over the last several years, lawmakers have appeared intrigued by provisions that would require tech platforms to directly compensate news organizations. Several jurisdictions have contemplated or enacted one or more of these arrangements. The first generation of policy frameworks endorsing these wealth transfers were often referred to as “link taxes,” and required online platforms to pay each time they linked to news publications. A second-generation framework for compensation enables collective negotiation by news publishers with tech platforms. This type of arrangement—typified by the Australian News Media Bargaining Code, Canada’s Online News Act, and proposals introduced in the U.S. Senate and California legislature—requires platforms to bargain with publishers for the ability to link to their content.

Both the link tax and the bargaining code frameworks have serious drawbacks. Most significant is the risk that they may fail to create workable structures to incentivize platforms to bargain with news organizations. In Canada, for example, Meta withdrew entirely from providing access to news, blocking news links rather than paying news organizations. Even in Australia, where tech platforms have entered into deals with publishers, it is unclear how equitable these arrangements are: The terms are secret, and it appears that large publishing companies have disproportionately benefited from the agreements.

Relatedly, the compensatory frameworks may simply be wrong to assume that news industry incumbents will effectively advance the public interest. Even some news organizations with substantial financial backing, like The Washington Post and the Los Angeles Times, have slashed newsrooms and reoriented editorial pages to be more sympathetic toward the Trump administration. Nor is it self-evident that news organizations would use payouts from tech platforms to hire additional journalists or reinvest in neglected local news or accountability journalism.

A better way of affording financial stability to journalists and organizations pursuing socially beneficial journalistic functions would be through public funding, as Martha Minow has suggested. Indeed, federal funding has long been used to encourage the production of knowledge goods when market incentives fail to adequately incentivize that activity. And, as with the production of scientific research, the government’s spending power enables it to choose whether and how to support the production of journalism.

If the government created an institution—let’s call it the National Journalism Foundation—with the primary goal of facilitating federal support of journalism, policymakers would confront questions related to institutional design. Key choices include, first, whether a National Journalism Foundation ought to be public (e.g. the National Science Foundation) or private (e.g. the Corporation for Public Broadcasting). Second, the funding mechanism is crucial: As the experience of the now-defunct Corporation for Public Broadcasting underscores, the annual appropriations process leaves organizations vulnerable to instability and political whims in a way that funding through, for example, an excise tax may minimize.

The most significant set of issues concern how government funders ought to decide which journalistic endeavors to fund. The experience of federal science funding illustrates the possibility that a National Journalism Foundation could use some of the same structures to determine the merit and impact of journalistic work as it does for scientific research—namely, peer review, considerations of geographic diversity, and defined criteria for the production of knowledge in the public interest.

Comparing journalism to scientific research underscores the difficulty of bridging a system of public funding to the professional norms of a knowledge community that conceives of itself as independent. To opponents, the specter of bureaucrats weighing the social and monetary value of journalism to determine how to support it undermines the very idea of an independent press and the watchdog role we expect journalism to fulfill. To be clear, however, this tension is not entirely unique to the press. Throughout the 20th century, scientific researchers also had to determine how to maintain scholarly independence while benefiting from government support of basic research.

Journalistic institutions often think of their work as antagonistic to the government and the powerful. This conception makes state support particularly thorny, as media institutions negotiate how to reap the benefits of government patronage without becoming captured by their supporters. But accepting the patronage of platform companies is no less tricky, and in an era of platform oligarchy, perhaps even more difficult to reconcile with journalistic independence.

The following can be attributed to Nicola Morrow, legal fellow at the Knight First Amendment Institute:

“Even a small amount of location data can reveal intimate details about our lives and our First Amendment-protected activities. Today’s decision is a powerful reminder that in the age of big data and panopticonic technologies, our 250-year-old Fourth Amendment remains an important bulwark against government surveillance.”

Read today’s decision in Chatrie v. United States here.

Read more about the case here.

Lawyers on the case include Nicola Morrow, Jake Karr, and Alex Abdo for the Knight First Amendment Institute; and Bruce D. Brown, Lisa Zycherman, Gabriel Rottman, Mara Gassmann, and Grayson Clary for the Reporters Committee for Freedom of the Press.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org

The Justice Department abandoned the case against Mr. Trump after he won the 2024 election, citing a longstanding departmental policy against prosecuting sitting presidents. Since Mr. Trump returned to the White House, the Justice Department has worked hand in glove with his current lawyers to suppress the department’s report about its investigation of his actions. Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida, a Trump appointee who presided over Mr. Trump’s case, has issued an order prohibiting the Justice Department from disseminating the report—and effectively prohibiting Jack Smith, the special counsel who wrote it, from speaking about it publicly or even testifying about it to Congress.

Judge Cannon’s order should be vacated and Mr. Smith’s report released. There is a respectable argument for sparing a sitting president the burden of defending himself from criminal charges, but if presidents are to be immune from prosecution while in office, it’s all the more important that Congress and the public have access to the information that would empower them to hold the president accountable in other ways.

The Justice Department began its investigation of Mr. Trump in early 2022 after the National Archives and Records Administration discovered that some of the records he had taken from the White House were classified. Later that year, when Mr. Trump declared himself a candidate for the presidency, Attorney General Merrick Garland appointed Mr. Smith as a special counsel to take over the investigation—a move meant to ensure the investigation’s political independence.

Mr. Smith eventually sought an indictment in the Southern District of Florida, and in June 2023 a grand jury returned one. Mr. Trump was accused of taking documents to Mar-a-Lago, lying about whether he had them, showing them to people not authorized to see them and refusing to return them even after having been served with a subpoena. The indictment also charged Mr. Trump’s valet, Waltine Nauta, with helping him conceal the documents. Just over a month later, a superseding indictment added charges against Mr. Trump, Mr. Nauta, and Carlos De Oliveira, Mr. Trump’s property manager at Mar-a-Lago.

If a jury had convicted them on these charges, Mr. Trump’s associates would probably have been sentenced to substantial prison terms, and Mr. Trump himself might have spent the rest of his life behind bars.

The Justice Department policy that spared Mr. Trump this possible fate—the policy against prosecuting sitting presidents—originates in a legal opinion that the department’s Office of Legal Counsel wrote in 1973 and reaffirmed in 2000. It stems mainly from the concern that requiring a president to answer criminal charges would compromise his or her ability to discharge the duties of the office. The department’s lawyers reasoned that it would be “incongruous” to allow a jury of 12 citizens to interfere so profoundly with a president’s ability to govern. They concluded that if a president’s mandate was to be terminated, it should be through impeachment.

It is no surprise, given this policy, that Mr. Smith abandoned the prosecution once voters returned Mr. Trump to the White House. But the suppression of Mr. Smith’s report is highly irregular and disturbing.

After the Justice Department abandoned the case against Mr. Trump in 2024, Mr. Smith completed his report and submitted it to the attorney general, as departmental regulations required. Mr. Trump and his co-defendants asked Judge Cannon to issue an order prohibiting the Justice Department from disseminating the report, contending that its release would compromise Mr. Nauta’s and Mr. De Oliveira’s rights to a fair trial.

In January 2025, Judge Cannon issued the order, even though Justice Department regulations authorized the attorney general to release the report, even though Mr. Smith had created a version of the report that minimized the identification of witnesses and co-conspirators and redacted other sensitive information, and even though Mr. Smith himself had made clear that the report should not be released to the public while the charges against Mr. Nauta and Mr. De Oliveira remained pending.

In February 2025, the Justice Department dropped the charges against Mr. Nauta and Mr. De Oliveira, making the concerns about their fair-trial rights moot. But just a few months ago, Judge Cannon reaffirmed her order, this time contending Mr. Smith had been appointed unconstitutionally and that therefore his report should be suppressed forever.

The current Justice Department, controlled as it is by lawyers who have demonstrated repeatedly that they are more loyal to Mr. Trump than to the rule of law, has made plain that it will not release the report even if Judge Cannon lifts her order; in one brief, department lawyers wrote that the report “belongs in the dustbin of history.” (Todd Blanche, the acting attorney general whom Mr. Trump has nominated to lead the Justice Department, was Mr. Trump’s lead counsel in the classified documents case.)

But Judge Cannon’s order does more than just constrain the Justice Department; it has also prevented civil liberties and news organizations from securing the report’s release under the Freedom of Information Act. The Knight Institute, which I direct, requested the report under the act last year; the Justice Department pointed to Judge Cannon’s order to justify rejecting our request. A federal judge in New York dismissed a similar request made by The New York Times on the grounds that Judge Cannon’s injunction could be challenged before Judge Cannon or not at all.

As it happens, Judge Cannon may have inadvertently provided a way to force the report’s disclosure. Before prohibiting the Justice Department from releasing the report, she insisted on reviewing the report herself. That brought the report within the scope of the First Amendment, which gives the public a presumptive right of access to most judicial hearings and related documents. Judge Cannon rejected a petition filed by the Knight Institute asserting a First Amendment right of access to Mr. Smith’s report, but we have appealed her ruling. The U.S. Court of Appeals for the 11th Circuit has said it will hear oral argument in the fall.

Mr. Smith investigated Mr. Trump for conduct that appears to have entailed an astonishing betrayal of the public’s trust as well as the nation’s security. Legislators and ordinary citizens should have the opportunity to read the report for themselves. It is incoherent to immunize the president from prosecution on the theory that he can be held accountable through the political process—and then to deny Congress and the public information that would help them do so.

I don’t really see any new theories around, rather, I see the revival of old theories.

Jan-Werner Müller:

In the 20th century, regimes were on the whole much less reluctant to deploy outright violence. They didn’t worry so much about being seen as openly repressive, whereas in the 21st century, there was much more of an attempt to basically try to convince both domestic but especially international audiences that one still had the rule of law, that one still had democracy.

Madhav Khosla:

Welcome to Lawyering Without Law, a podcast by the Knight First Amendment Institute where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country’s slide into authoritarianism. I’m Madhav Khosla. I’m the Knight Institute Senior Fellow and a Professor at Columbia Law School. My co-host Katy Glenn Bass is away this week.

Joining me today are two guests: David Dyzenhaus and Jan-Werner Müller. David is a Professor of Law and Philosophy at the University of Toronto, and the leading scholar of legal and political theory, constitutionalism, the rule of law, and the legal challenges posed by states of emergency. Jan is a Professor of Politics at Princeton University whose research examines democracy, constitutionalism, and the history and theory of populism. I’m having both scholars on the podcast to talk about the history of 20th century authoritarianism and what that can teach us about the challenges facing democracies today. David and Jan, welcome to Lawyering Without Law.

Jan-Werner Müller:

Thanks for having us.

David Dyzenhaus:

Yes, thank you very much.

Madhav Khosla:

Today in the United States, but also elsewhere, we are seeing new legal theories emerge that change the liberal democratic constitutional model that has in some sense defined the post-war era. I thought we might step back and focus on history for a moment. Two paradigmatic if rather different authoritarian regimes of the 20th century are Nazi Germany and Apartheid South Africa. One feature of these regimes is that they did not simply abandon law, but in fact used lawyers, courts, legislation, and legal theory to govern. Jan, I was wondering if we could start off with you and just to explore what these cases might teach us about the difference between the rule of law and the rule by law.

Jan-Werner Müller:

I think I’d like to defer to David on South Africa, but as a more general point that might frame our discussion, I think it’s worth pointing to a book that came out about four years ago that I think remains a very important contribution to understand the differences between 20th century authoritarianism, broadly speaking, and what we are seeing today. The book I’m referring to is by our colleagues, Guriev and Treisman. It’s called Spin Dictators. It proves with plenty of empirical evidence that what they call fear dictatorships in the 20th century was rather different from what they call indeed spin dictatorships in the 21st century, both, to be sure, used law. There was no regime that somehow was able to transcend law altogether, but according to them, the major difference is that in the 20th century, regimes were on the whole much less reluctant to deploy outright violence. They didn’t worry so much about being seen as openly repressive, whereas in the 21st century, there was much more of an attempt to basically try to convince both domestic but especially international audiences that one still had the rule of law, that one still had democracy.

I think we all know prime examples of this in our day. Viktor Orbán spent an inordinate amount of time and resources in trying to fool the European Commission and plenty of other international audiences into thinking that, yes, Hungary still had the rule of law. The concept of autocratic legalism has become very popular in terms of trying to capture this particular phenomenon where you seemingly observe procedures correctly, where you also move very slowly in many cases, where it simply doesn’t look like you are doing something that is so authoritarian.

Now, to be sure, authoritarian regimes today still, so to speak, hold violence in reserve. Putin, who for a long time wanted to be seen as a Democrat, of course after 2022, dropped all pretenses, was done with a facade, became outright oppressive. So we shouldn’t be starry-eyed about what’s happening today, but again, what Guriev and Treisman show is that there is a real difference. And that also means, I think by implication, that law probably plays more of a role today, that it’s more important for these regimes to be very careful in terms of how they devise and how they implement various forms of autocratic legalism.

Madhav Khosla:

Terrific. Thanks so much. David, could you tell us a bit about South Africa and how we should think about it in this context?

David Dyzenhaus:

Well, even though I should defer to Jan about Nazi Germany, I’m going to start not with South Africa, but with Nazi Germany, and with a book that I think we all know well and that’s Ernst Fraenkel’s The Dual State. So Fraenkel in his book, The Dual State, which has come back into vogue as providing a set of tools that one might be able to analyze present day developments with, argues that the Nazi state has to be understood as having two states side by side.

On the one side is the normative state, which is a state that was still governed by law in some sense, the law that remained from the Weimar period, also Nazi law that still worked through ordinary legal mechanisms, but on the other side was the prerogative state. And in the prerogative state, Nazi officials just did what they pleased in order to serve the interests of the party and what’s more officials from the prerogative side could intervene at any moment in the normative side and do as they pleased. And I think what one sees there in Nazi Germany, if Fraenkel’s analysis is by and large correct, is that law still operates, but it operates side by side with a regime that can use violence at will.

I think that South Africa during the Apartheid era presents an interesting transitional case. The Apartheid government proudly proclaimed both domestically and internationally that it was on the side of the rule of law, and I think these proclamations were by and large sincere. So it did seek to govern through law. But the way that it governed often was to give vast discretionary powers to officials in order to do as the Apartheid government wanted. And I think one sees the same phenomenon today in the autocratic regimes of the present. And so there may not be actually such a sharp qualitative difference, I think, between the kind of legal government that one observes in the ’30s, and legal government today.

Madhav Khosla:

David, to stay with you and just to pivot slightly to today, your forthcoming book, The War Against Law, engages with a new sort of legal theory that has emerged, the most prominent articulation of which has come from Adrian Vermeule and namely common good constitutionalism. Could you perhaps tell us a little bit about what you think a good working definition might be of the theory?

David Dyzenhaus:

Let me start by disputing something that you said right at the very beginning, Madhav, when you, I think spoke about new theories emerging. I don’t really see any new theories around, rather, I see the revival of old theories. And if one looks to theories that were put forward in the late 1920s in Weimar and then in the 1930s by people like Carl Schmitt and Eric Voegelin, I think what one sees with Vermeule and also with his counterparts in the United Kingdom is a revival of a certain understanding of political community that requires a law as an instrument, but there’s nothing really new in these theories.

Jan wrote a really excellent article some time ago about common good constitutionalism and the title I think is Rule of Law, Rule by Law, Or Something Else Entirely? With a question mark. And he doesn’t answer the question explicitly whether what’s happening with common good constitutionalism, whether it is something else entirely, but I think implied in the argument is that it probably is something else entirely. So what is the something else entirely? It’s the rule of principles that are somehow revealed to an elite and then imposed on the population, and I think this is an anti-constitutional, and in a real way, anti-legal idea of political community.

Madhav Khosla:

And Jan, just to perhaps push you maybe to answer the question mark, to stay with David’s point that in Nazi Germany, figures like Schmitt attack liberal legality as unable to defend the political community. How do you compare the structure of that argument with common good constitutionalism’s critique of liberal constitutionalism rights and even judicial constraint?

Jan-Werner Müller:

Allow me to say two things. One is a probably superfluous pedantic remark, which is really about how we think about the relationship between particular legal theories and then larger visions of politics. I think many people might remember that after the Second World War, there was a very strong tendency essentially to blame legal positivism for the demise of Weimar, and to say that this had left the Republic defenseless, this was agnostic, neutral, and something else was needed. And it took a while for people to realize that actually this wasn’t really entirely accurate.

Just to name the most obvious example of a great positivist who actually also contributed a great democratic theory in defense of the Republic, just think back to Hans Kelsen as somebody who clearly had actually offered a whole range of reasons why republics need to be defended. Although to be sure in his writings on so-called militant democracy, he also came up very clearly in saying that, look, if a majority wants to be done with democracy, you have to go down with the ship, and then you can’t really appeal to values that transcend anything in terms of trying to save the polity. Except footnote to the footnote if I may, I think historically there’s really no such case. There is no such case of a people in a free and fair election with a majority saying, “We want to be done.” And then the Kelsen problem really arises.

And a footnote was only then also that people realized that actually some of those who’d undermined the Republic were the antipositivists, Schmitt foremost among them, but he wasn’t the only one. I think we always need to be careful in terms of short-circuiting a particular legal approach or legal philosophy with then particular political or political standpoints.

Now to finally, secondly answer your question, I would just echo David in saying that, yes, there’s a lot of fancy footwork in terms of Adrian Vermeule trying to recover various theories appealing to what he takes to be longstanding classical traditions, but ultimately when everything is said and done, what is being justified is an extraordinary concentration of power. And even in moments when it seems like something else is being suggested, example, the idea of subsidiarity, which comes out of Catholic thinkings about the polity where you basically say certain problems, policy challenges should be dealt with at the appropriate decentralized local level, you shouldn’t automatically centralize power.

Even there, there’s immediately the kind of caveat that says, “But it’s also okay, if necessary, to completely centralize power.” So to put it bluntly, what you initially might feel you’re getting is a lot of Thomas Aquinas, is a lot of Roman law and so on, but you scratch the surface and then ultimately there’s a particular version of Carl Schmitt that remains, and that ends up justifying, as David was saying, basically enormous amount of discretion for an elite, which of course will say that it acts for the sake of the common good and does good things for the people and so on, like everybody does, but where there are no meaningful constraints anymore.

Madhav Khosla:

I think that that’s right in that for liberals, common good constitutionalism quite clearly seems to concentrate too much power, and in some ways it gives officials too much discretion to define the common good. But what’s interesting is that scholars of common good constitutionalism present themselves self-consciously as anti-liberal, but they don’t present themselves as anti-legal. And do you think that there’s some way in which we can pass that distinction? Is it meaningful? Is it simply artificial?

Jan-Werner Müller:

Well, I would gently politely ask what it would even mean to be anti-legal. Very few people at law schools, as far as I’m aware, go around and say, “I’m all out anti-legal.” So of course they make arguments which as already internet deploy certain conceptual resources, seemingly draw on established traditions, try to employ certain methods.

As you know, Vermeule basically is very keen to say, “Look, don’t panic. I’m actually using Ronald Dworkin here as well. This is somebody you know, this is going to be okay.” But none of that really settles the debate in terms of whether anything that we would want to see as the rule of law, which I think is not a uniquely liberal preoccupation.

I mean, it goes back a little bit to what David was talking about initially when he described the dual state in terms of saying, “Look, are there going to be moments where essentially we are dealing with impunity because there’s not going to be any recourse anymore?”

That’s not as any uniquely kind of liberal worry to have. And I think you could say all this without being starry-eyed, naive about the rule of law and clearly all its deficiencies, especially but not only in the United States, it remains legitimate demand to say, “Well, empowering people to act without meaningful constraints has a tendency to go wrong in certain ways.”

Madhav Khosla:

David, one of the very significant features in your work is an effort to both carefully distinguish between historical cases, and to carefully draw connections. So for instance, you are very careful to distinguish between Schmitt and the political philosopher Eric Voegelin’s authoritarianism and outright Nazism. Similarly, I think one of the things that you’re trying to do in some of your new work is to connect the UK contemporary debate to Apartheid-era war against law and especially the effort to reshape jurisprudence so that the executive has maximum latitude outside legal controls.

Can you say a little bit about how we in this moment should actually look at the 20th century? What’s the right level of historical analogy? How do you draw from it? In some ways, part of the struggle actually with invoking Nazi Germany is that it almost puts the bar too high. It almost makes it the case where if you think that, oh, well, that’s not happening, things must be all right. And I think in a way, some of what a lot of people feel and are dealing with is actually what are the examples and what do we learn from them?

David Dyzenhaus:

I think it’s instructive to look at Nazi Germany and to read books like Fraenkel’s The Dual State, but it may be more instructive to look at other states at that time at Italy, at the fascist state that Dollfuss tried to establish in Austria, and also at the state that conservatives tried to put in place in the late ’20s and early ’30s in Germany. It’s a mistake I think, and I say this in my book that’s about to appear, but I said it elsewhere to call Carl Schmitt a Nazi jurist. I don’t think that Schmitt was a Nazi.

Now, Yan has written the best book that’s out there about Schmitt and knows more about him than I do, but Schmitt, as I understand him, only joined up with the Nazis for rather craven reasons, and also because I don’t think he had any principled objection to what they were doing. But before the Nazis seize Europe power, Schmitt was working with the people who were trying to crush both the Nazis and the Communist Party so these were the mostly Catholic aristocrats who starved the late Weimar cabinets. So they wanted to put in place a form of authoritarian rule that was, I think, probably quite different from Nazism. It may not have used prerogative to the same extent.

In some ways, I think one can understand Schmitt and perhaps some of the people are writing today in the common good constitutionalist camp as disappointed positivists if you understand positivism as a very crude doctrine that says that what you need to put in place is a very stable regime that can then enact law that has a clear content which officials can just apply without having to rely on their own moral judgment. This is very much the image that dominates Schmitt’s first book about law, Gesetz und Urtile.

He’s a disappointed positivist. How does one get rid of discretion in the law? And I think eventually, he comes up with the idea much later that what one needs to put in place is a substantively homogeneous population, and then you can have rule by law if not the rule of law. So there is this very instrumental idea of law that I think is common to these people, but it is somehow an idea that does without the rule of law, which is I think the contrast that Jan was drawing attention to in this title, rule by law, rule of law, or something else entirely.

Madhav Khosla:

That actually is a terrific way to pivot to a slightly different theme that a lot of us have been thinking about. So common good constitutionalism is at least on many of our understandings, incompatible with or in some deep tension with the rule of law, if only for the kind of discretion that it gives public officials and elites. Is it also incompatible with actually certain ideas about the legal profession insofar as it instrumentalizes law in the way that David described? Jan, I was wondering if you could just comment on just how you think it actually might shape our understanding of professional identity, and in fact, what it means to be a lawyer in a particular modern society.

Jan-Werner Müller:

Well, I’m flattered that you would think a non-lawyer would be able to hold forth and tell you the ultimate truth about this.

Madhav Khosla:

I actually think the non-lawyer’s the best person. The lawyer will just tell us what we want to hear.

Jan-Werner Müller:

So I would say two things. One is more specific, the other is maybe more general. The first one is that as we’ve seen in the United States, I think it’s possible to exert quite significant pressure on individual lawyers to go along with one what then might be revealed as being very close to or maybe actually being professional misconduct. And maybe that’s shocking on a certain level. I’m not saying that’s inspired by common good constitutionalism, but I think it’s too much of a stretch to say, yes, you have a very powerful executive that seems unconstrained, that is very willing to grab power, that does autocratic legalism on the one side, but then also on many other occasions.

So it’s basically more like Trump, dare I say, as a businessperson, let’s just do something, let’s create some facts. People probably know it’s illegal, but let’s see what happens. Maybe they’re going to settle out of court, maybe somebody does go along. These are two very different modalities. And for the second one, you still need lawyers who maybe try to make the case, try to find settlement and so on. So it is astonishing how many people seem to be willing to go along, and then it may well be revealed that if maybe some of them end up being disbarred, that yes, they actually crossed the line.

But secondly, and maybe less obviously, I think a lot of aspiring autocrats today more broadly like to attack professions, because if you think about the parallel with academia, there’s very often a similar suggestion that professionalism to begin with is a kind of sham that these are people who, yes, are credentialed in a certain way, but ultimately it’s a nefarious self-dealing, self-reproducing liberal elite, and we shouldn’t really respect their authority. So if they say something, be it about the law or be it about climate or be it about another topic, we can probably discount it. Or it’s probably just a nefarious way of constraining the people who is uniquely represented by the great populist leader and so on. So I think that’s somewhat special to our times maybe, that at least some of these regimes have a more broader attack on professionalism. I think there they can to some degree also actually benefit from very different figures having paved the way.

If you think about earlier attacks on universities, let’s just take an example from the UK, Thatcher’s attacks on universities saying most of these people probably just sit around all day, drink tea, and spout Trotsky as nonsense and criticize me. Let’s make them really work. Let’s assess them all the time. Let’s test them. Let’s make things more quantitative. I think that’s been a more general trend, and this is what this for short-end authoritarian populist attack can also benefit from, that there’s already framing that says, “Oh, there’s maybe something problematic about professions. Maybe what they say, the authority they claim on the basis of special kinds of education isn’t quite what it claims to be.” I think we shouldn’t stretch the point too far, but I would say there is something there that goes beyond lawyers in particular and that also goes beyond some of the specific attacks on certain professions that we’ve seen in our day.

Madhav Khosla:

Terrific, Jan. And in a way, I guess you see... Climate is a great example. And I suppose in the US, another example that is very much in the news today is the medical profession and the attacks on certain forms of science basically. And David, just to focus a little bit on the relationship between expertise, knowledge, and the professions, one of the things in your work that’s been very significant is that you’ve thought a lot about the role of judges in Apartheid South Africa, in Nazi Germany, and even in contemporary moments post-9/11. And of course, judges are professionals. They’re public officials, but they’re also professionals and they’re lawyers. And I was wondering if in that entire narrative, what account you have of actually the role that lawyers should play and even some of the conflict actually that some lawyers face, which is that participating in the system is itself a form of legitimation, not participating in the system is a form of exit.

David Dyzenhaus:

So let me start with an anecdote about the professions, and it goes back to the time of Blair joining Bush in the war against Iraq. And as many people will remember, at the time Blair goes to his Attorney General, Lord Goldsmith, and asks him for a legal opinion about whether joining Bush will be legal under international law. And he doesn’t get the opinion that he wants from Goldsmith, so he says, “Go back and try again.”

And Goldsmith comes up with an opinion which says, “Well, it’s fine for you to go to war with Bush because international law sanctions this.”

And one of the most senior people in his department then resigns in a rather infamous affair. This willingness to bend the law, and in a way, I think bend the law out of all recognition in response to political demands is, I think, a feature of our current situation. It’s interesting when one reads commentary in the US media about US court decisions. Nowadays, journalists will always say whether the judge who decided a matter is a Trump-appointed judge or a Bush-appointed judge or an Obama-appointed judge. And it’s always emphasized when a Bush-appointed judge, and even more when it’s a Trump appointed judge, gives a judgment that goes against the wishes of the current administration because I think what’s being pointed out in this emphasis is that here we have a judge whose sense of professionalism transcends their perhaps political commitments. And what one gets I think in the current climate is a collapse of professionalism into political commitments. And with that collapse, I think the idea of the profession goes no longer has the idea of people occupying a role. They just become the servants of their political masters.

Madhav Khosla:

On that, if I may push you ever so slightly, I think implicit in your account is that arguments have a certain integrity to them or they should have a certain integrity to them. And your forthcoming book has a very sharp title, it’s called The War Against Law. And what would we say to those who say that, look, actually what you describe as an argument that undermines the rule of law or unprofessional behavior that instrumentalizes how certain people behave is simply a legitimate conservative legal argument. It’s just one that you disagree with.

David Dyzenhaus:

Of course, I will run into and have run into that accusation. My response to it is that I don’t see anything particularly conservative about the arguments that I’m trying to rebut in this book. In the book, I make the claim and I think it is a claim that I sustain that there’s something that I call a fake legal argument. And what is a fake legal argument? A fake legal argument on my account has two characteristics. On the one hand, it’s an argument that’s designed to subvert the rule of law.

So the end goal is to subvert the rule of law, but it’s also the case that using legal arguments to get to this goal displays a certain characteristic which I try to expose in the book and that is that the arguments are legally speaking bad. The lawyers who make them I think often have to misrepresent the law, make inaccurate statements about the law in order to try to achieve their goal. So I don’t think that I’m contesting conservative legal positions. I’m contesting right-wing positions that are not really in any way seeking to uphold the law, or making sincere arguments about what the law requires.

Madhav Khosla:

Jan, in your critique of common good constitutionalism, you explore the project at different levels, at the level of general theory, at the level of institutional design, and at the level of US constitutional argument, and at the level of specific policy positions. And can you tell us just a little bit about what those levels mean and how they actually help us understand the theory and theories like this?

Jan-Werner Müller:

Allow me to say two things. So one is that in his, to put it mildly, consciously provocative way, Professor Vermeule, of course, is making all kinds of remarks about don’t think that democracy is that special, and that democracy is not really required by common good constitutionalism, but then takes it back at the same time by saying, “Well, there still needs to be a channel for meaningful input and feedback by the population, but it doesn’t have to look like what we conventional thinkers that we are bound to the present as we are think of as our standard institutions of representative democracy.”

So there’s all this conscious playing with, okay, maybe a different institutional configuration could be perfectly possible. Maybe even as the case in one of the texts in a very obscure publication, maybe even the fantasy of the good emperor who basically unites with the people against the inevitably nefarious liberal elites who are all corrupt, et cetera, could be a good solution.

So I think on the one hand, it’d be too simple to say, “Oh, this automatically implies what we might think of as authoritarianism on the institutional level.”

On the other hand, it’s pretty clear that Professor Vermeule tips his hand and say, “Look, I have certain preferences. If you have certain preferences, then actually all these other questions become sort of secondary in a certain way.”

And again, all our very conventional way of thinking about the dangers of concentrating power, the dangers of giving up entirely on some idea that democracy, of course not in practice, are last, but at least in theory, is the one system that promises citizens that, yeah, they should be treated as free and equal and they should regard each other as free and equal. All that goes by the wayside.

But the second thing I wanted to say as a footnote to what David just said is that I think it also opens the door, at least going to my impression, the current Supreme Court has often done, which is pretty arbitrary consequentialist reasoning, think of something like Trump v. Anderson, or sometimes just making up bits of 18th century history because it serves a particular agenda, or it gets you to the result that you want to get to. And I think if common good constitutionalism were implemented somehow, we would have a very similar scene in terms of, okay, we’ll just grab bits and pieces, we dress it up in the language of common good constitutionalism. And because it’s so vague in general, you can always tell a story about how this actually serves justice, abundance, and so on.

Madhav Khosla:

And in that account, I suppose it’s also very easy to dress that stuff up around lawyers, and for lawyers in some ways actually to construct that kind of illegal political project because one feature of being a lawyer is actually the capacity to be able to argue any case. And unlike some of the other professions, lawyers are trained to do that, which is I think partly why one sees in some of these historical examples, a genuine role for lawyers in these intellectual movements.

I was just wondering, when you think about the professions more generally, and one of the things, Jan, that I think people don’t really talk about is how one of Hitler’s first statutes actually involved regulating the bar and the significance actually for lawyers in that particular story. I was wondering if we could perhaps close by you and David both coming in really on how you drill down on actually what role lawyers have played in this and how that might actually tell us just something about the structure of them as a professional class.

David Dyzenhaus:

Let me make an attempt at answering that. And if one goes back to the context where I first started thinking about these issues, and that is Apartheid South Africa, I do think one sees a very interesting role played by lawyers over a long period because Apartheid lasted a long time. Initially, very few lawyers who were prepared to take the kind of cases that tried to use legal arguments to contest Apartheid policy. But these lawyers were able to keep an idea of the rule of law alive that I think provided an important basis for the post-Apartheid constitutional order. They maintained a basis for respect for the rule of law that otherwise would’ve been lost.

And the lessons from this period are not confined, of course, to Apartheid South Africa and referring to something you suggested earlier, Madhav, which I forgot to respond to, there’s a very interesting Israeli human rights lawyer called Michael Sfard, who’s written one of the best books, maybe the best book I’ve ever read about the dilemmas of lawyering under an unjust regime.

Sfard does a lot of his work in the occupied territories. And his view, which is inspired by the work of Apartheid-era human rights lawyers is that even when the odds are really stacked against one, one should use the law to contest the law because this is important for the regime that will hopefully replace the unjust regime that presently governs. And he recognizes fully, and I think that South African human rights lawyers recognize this as well, that through their participation, they do legitimize the regime, so that’s a cost that they have to think is worth bearing.

I don’t think that the situation is as dire in the United States now, and certainly not in the United Kingdom at present, but if one looks at work by lawyers who think about these issues in the United States, and probably most prominent here is the Georgetown Law Professor David Luban, one could see the same kind of dilemmas arising for lawyers, especially lawyers who stay on in the administration. So I’m sure that there are lawyers now in the US Department of Justice who are still wedded to an idea of the rule of law and are thinking to themselves, can we maintain that ideal of the rule of law under the conditions under which we presently work? So they are facing dilemmas that I think are not all that different from the dilemmas that lawyers faced in Apartheid South Africa, or that lawyers face in Israel and the occupied territories.

Madhav Khosla:

David, before I turn to Jan, just if I could just follow up on one thing that you said, do you have an account for what actually facilitated the internal cohesion within the legal profession during Apartheid South Africa? Because if actually lawyers were wedded to a certain notion of the rule of law and of their role within the legal profession, what enabled that kind of internal ethic?

David Dyzenhaus:

I think what enables it is that I think intrinsic to the rule of law is an ideal of equality before the law and this ideal can be a very formal, but as long as that’s preserved, I do think that lawyers will find within the law of their legal order resources which they can use to contest unjust laws to contest oppression to try to reign in discretion when too much discretion is given to officials to implement unjust policies. So there is something intrinsically worthwhile, I think, to the rule of law. And what one has to contest is the sometimes quite subtle and nuanced ways in which that ideally is being undermined these days by lawyers who use what looked like legal arguments to undermine the ideal.

Madhav Khosla:

Jan.

Jan-Werner Müller:

At the risk of simplifying radically, I think maybe one can distinguish two scenarios. One is, again, maybe somewhat more “traditional authoritarian regimes” where at least in theory, there might be somewhat more of a space to do what David just talked about in terms of staying within the system and trying to use the normative resources that law provides in order to call it what you wish, prevent the worst, save what can still be saved, but always against the background of a regime that perhaps might be primarily invested in projecting a certain image of stability in the way that many traditional authoritarian regimes did in also keeping up appearances vis-a-vis the outside world. Again, it will be up to people’s individual conscience when they find that, okay, but there’s still now a red line which I can’t cross and where I have to leave or do something different as opposed to second scenario where you see a much more radical approach.

And since for better or for words, we have occasionally been touching on Nazi Germany, one of the things one could clearly see also was at internal process of radicalization there. That all of a sudden someone like Schmitt who’d been very willing to go along with justifying a lot of what Hitler was doing in the 1930s sees himself outflanked by especially younger figures who say, “Well, this is still to behold to notions of the state. And the state is still too much of a liberal concept for us. And it’s still too closely wedded to the rule of law. We need something like for shorthand a sort of total biologization, total racialization of the social, completely folk-centered idea of the polity that dispenses with anything that could still smack of liberal legality.”

So I think one needs to bear in mind that some of these regimes might have a inbuilt process of radicalization, which cannot really be contained, and where one simply ends up providing a facade for a while, and then is being outflanked by people who are willing to go much further because the regime sees itself in many ways as unconstrained. And as David was saying, the situation in the United States now is complicated. Clearly, a lot of lawyers have left the administration saying that we just can’t do this. Plenty of lawyers are heroically fighting back against the administration, but it’s also clear that at least for some in the administration, there seem to be no real constraints and no real incentive to keep up facades.

And of course, at the risk of saying the obvious, that might partly be because in the background there is a very clear promise of impunity because the president has said, “I’ll be pardoning a lot of people. So why would you feel constrained? Why wouldn’t you simply say, I go all the way and I’m not concerned about keeping up appearances and I’m not even maybe concerned about post-Trump life in the profession or beyond the profession for that matter.”

Madhav Khosla:

And in a way, I suppose both January 6th and the subsequent events as well as the role that now politics plays in prosecutions only furthers and confirms that point. Jan and David, it’s been such a pleasure to have both of you and we are so grateful. Each of your work is unique in some sense because it’s inescapable for understanding the relationship between law and power in both this century and in the previous one and thank you so much for joining us.

David Dyzenhaus:

Thank you very much, Madhav, for having us.

Jan-Werner Müller:

Thank you very much indeed for having us.

Madhav Khosla:

And that’s it for this edition of Lawyering Without Law. Join us next time for our sixth and final episode, featuring a discussion on international law, accountability, and the future with Tom Dannenbaum and Asla Bâli.

Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote. Fact checking by Harriet Engelke and Arman Amin. Candace White is our Executive Producer. Our music comes from Envato Elements. The art for our show was designed by Jay Vollmar. Thanks to Jan-Werner Müller and David Dyzenhaus who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K, and follow us on social media.

Less than a week later, the agencies sent a letter to the university detailing a series of steps the Trump administration described as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.” Those steps included changes to the university’s disciplinary and security policies and procedures, its definition of antisemitism, its admissions process, and its internal academic governance. Famously, this demand letter induced the university to enter into an agreement with the government to end these investigations and reinstate not only the $400 million in cancelled grants, but also to ensure Columbia’s access to billions of dollars in current and future grants.

The administration’s actions against Columbia were but the first salvo in a sustained campaign to coerce higher education institutions—including Harvard University, the University of Pennsylvania, Brown University, Cornell University, Northwestern University, UCLA, and the University of Virginia—into conforming their internal governance to the administration’s political priorities. In each instance, an essential source of leverage was the potential withdrawal of federal money under the auspices of Title VI, a federal civil rights statute that prohibits discrimination based on “race, color, or national origin” in “any program or activity receiving Federal financial assistance.” For many years prior to the Trump administration, many observers complained of federal intrusions into university governance under the auspices of Title IX, a cognate civil rights law that applies to sex discrimination in federally funded education programs and activities.

An irony of Title VI and Title IX is that, in a formal sense, these laws are weaker than many other federal civil rights statutes. Their prohibitions on race and sex discrimination operate, not through direct government regulation, but through contract. Neither law strictly mandates that any institution comply with its prohibitions—a recipient may instead choose to forego federal funding and thereby escape the obligations these laws otherwise impose. This enforcement structure distinguishes Title VI and Title IX from, for example, Title VII, an outright prohibition on employment discrimination based on race, sex, religion, or national origin, or the Americans with Disabilities Act, which directly prohibits discrimination on the basis of disability. Under our legal fictions, this direct effect makes the law stronger: a government obligation is more coercive than a choice.

The double irony, then, is that the way to make Title VI and Title IX less able to serve as instruments of authoritarianism would be to change them from choices into commands, at least when it comes to higher education institutions. Rather than tying limits on race or sex discrimination to federal funding, Congress could simply amend the law to say that no institution of higher education may lawfully discriminate on these grounds. Potential infractions could be enforced in just the same way they are now—through private rights of action and government enforcement via the Department of Education or the Department of Justice. The difference would be that, instead of a potential remedy of loss of all government financial assistance—a number that runs into the billions of dollars for large research universities such as Columbia and Harvard, but also, under Grove City College v. Bell,1 1. 465 U.S. 555 (1984). could potentially affect any school whose students receive federal financial aid2 2. Congress clarified in 1987 that the anti-discrimination coverage of Title VI and Title IX is institution-wide, but the remedy of funding withdrawal remains “limited in its effect to the particular program, or part thereof” found to be out of compliance. 42 U.S.C. § 2000d-1; 20 U.S.C. § 1682. Given the historical lack of actual funding withdrawals, the precise application of this targeting provision remains ambiguous.—the available remedy would be actual (or statutory) damages or a tailored injunction, just as law usually works. Congress could also create a table of administrative fines tailored to the severity of the violation, which would enable administrative enforcement to continue, but in a far more proportionate way than it does now.

There is no legal obstacle to Title VI and Title IX being structured in this way. The constitutional authority for doing so would be based on the Commerce Clause (and, for public institutions, section five of the Fourteenth Amendment) rather than, as now, on the General Welfare Clause. To bring colleges and universities safely within Congress’s constitutional power, it would be prudent to add a “jurisdictional hook” that applied the prohibition only to institutions with educational programs “affecting interstate commerce,” the same caveat that attaches to the Civil Rights Act’s outright prohibitions on discrimination in public accommodations (Title II) and employment (Title VII). Since higher educational institutions typically pull students and faculty from across state and national borders and send their graduates around the country, this qualification would be easily satisfied in all but the most unusual of cases.

The original structure of Title VI may well have been a concession to federalism. The law was designed to create a federal remedy, beyond litigation, to combat school segregation in the Deep South. So far as I can determine, direct statutory regulation of Southern schools wasn’t even on the table; it would have been widely considered an intrusion on local political control and would have made passage of the Civil Rights Act of 1964 even more difficult than it was. Title IX was modeled on Title VI.

This federalism concern is far less acute, and the coercive effect of federal funding withdrawal far greater, in the context of modern universities. Such universities are often selective, have voluntary enrollments, and operate largely autonomous of local political control over their governance. And as we have seen, the threat of a funding withdrawal can mean, not just the loss of a budget line or a threat to a single program, but a death sentence for much of the university’s scientific research and a serious blow to its affordability, and thus to its livelihood. More money, The Notorious B.I.G. reminds us, more problems.

There is little reason to think converting Title VI and Title IX into direct prohibitions policed through damages, tailored injunctions, and more proportionate administrative enforcement would make colleges and universities any more or less discriminatory, or indifferent to peer-to-peer discrimination, than they are now. Until the second Trump administration, withdrawal of federal financial assistance was not used as an actual remedy in Title VI or Title IX enforcement. The main difference would be that the federal government would no longer be able to use the downstream possibility of this draconian and disproportionate remedy as an in terrorem device to coerce institutions into conformity with a particular administration’s broader political agenda. President Kennedy anticipated this concern. In rejecting the recommendation of the U.S. Commission on Civil Rights that federal funds be denied statewide to states that did not desegregate their schools (a far worse offense than the typical modern Title VI complaint), he said, “I would think it would probably be unwise to give the president of the United States that kind of power.”3 3. See Stephen C. Halpern, On the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act 25 (1995).

Title VI and Title IX are not, of course, the only sources of leverage governments exert over universities. An administration may threaten current or future funding streams on other statutory or contractual grounds, each of which must be addressed on their own terms. But ending the vague and unnecessary tying of the salutary prohibition on race and sex discrimination in higher education to the receipt of federal funding would go a long way toward removing a loaded gun from the hands of a wayward government.

The degree to which these institutions impact the autonomy of knowledge producers is largely determined by the preferences of the staff and its leadership. For NSC and DPC, the source of their power is the extent to which they are able to initiate policy unquestioned by the president, organize the executive branch around them, and ultimately push paper in front of the president for a decision. For OMB, the opportunity to set administration policy is far greater. Not only does OMB control budget submissions to Congress and dole money out to the agencies, it also determines which regulations may move forward, controls what information may be collected from the public, coordinates the points made by agencies which are presented to Congress, writes the rules governing procurement, and more.

In the current administration, this power manifests in OMB’s ability to define what money agencies may spend and the rules which govern who may receive money from the government. In previous administrations, OMB’s power over institutions of higher education also involved defining how agencies should regulate universities through updates to the Code of Federal Regulations (especially 2 CFR 200) and information collections related to things like research security. In fact, just a day after this paper’s initial submission, OMB Director Russell Vought released a sweeping update, transforming the guidance into a regulation, in one of the most egregious executive threats to institutional autonomy in this country’s history.

To offer an example from the previous administration, when designing research security requirements for universities, it was understood that it would be impossible for agencies to create a single set of uniform requirements across all government agencies without placing significant additional burden on academic institutions. The requirement was implemented through an information collection, requiring that an academic institution attest that they have a research security program with a defined set of characteristics. While in practice, OMB’s involvement was to limit divergence between agencies, agencies still had latitude to determine their own requirements. These rules can have dramatic impact on the operations of universities and knowledge centers as they contort themselves to comply in order to receive federal funds.

When the current administration arrived, the deference afforded to agencies completely evaporated. OMB started to use their control of both budgets and process coordination to bully agencies (and even individual offices within them) into submission. In my previous office, this included withdrawing money from the agency’s account with no notice overnight. For universities and academic institutions, the impact is being felt with respect to OMB’s control over agency apportionments, defining which “notices of funding opportunities” may be posted by agencies, and the dramatic assertion of regulatory authority over all federal financial assistance, twisting both empirical reality and established law in the process.

Much of the power concentration in OMB is relatively new, emerging over the course of the last 40 years. The justification for placing that much power in a single nerve center in the federal government was to reign in sprawling requirements placed on the public across the U.S. government and to try to get the expanding government to speak with one voice. In practice, that power has been easily exploited, allowing OMB to exercise substantial power over government activities, including with respect to defining which projects get to be funded and which do not.

It is understandable why the U.S. government, with our national debt and ballooning deficit, should have a body that attempts to get a handle on agency spending and reign it in. But given OMB’s institutional weaponization, particularly with the targeting of research institutions like the National Center for Atmospheric Research (over which it has no actual authority), it’s worth considering whether OMB should continue to exist in its current form. To offer an even more extreme example, a young political OMB examiner with zero relevant experience probably shouldn’t be able to veto congressional intent, the collective urging of the interagency, feedback from entire industries, and U.S. treaty obligations with respect to whether space should be a safe operating environment. In theory, such decisions should be the responsibility of Senate-confirmed principal officers assigned to lead their respective organizations. Russell Vought should not have a say over whether the National Academies of Science, Engineering, and Medicine should continue to exist as an institution.

The concentration of power in OMB has always been suboptimal. Agencies have long been unable to request the resources they need, treating things like basic safety standards in laboratories as subordinate to flashy announcements while operating under a false pretense of fiscal responsibility. For reasons like this, the president’s budget request has long been viewed as a “dead on arrival" political document, leaving one to wonder what meaningful role OMB’s involvement actually serves. It would be far better for agencies to communicate their needs directly to Congress, have appropriators reckon with the actual cost to run the U.S. government, and in doing so increase public accountability and oversight over executive branch functions.

Most frightening: I have already heard former colleagues contemplate similar exercises of power in future administrations, including one verbatim “a lot of companies and Dems might like the idea of a trillion-dollar slush fund.” I would urge them to reconsider and urge for the dismantling of the tools that might allow them to do so. “Sulla could do it, shall I not?” must not be the undoing of another great republic.

Any attempt to regain some semblance of institutional autonomy over knowledge production in the United States will require dismantling the coercive power structures undermining fundamental freedoms. This will inherently require dismantling some of the more centralized executive functions, transferring them back to the legislature (who are more direct representatives of the people), and granting agencies the autonomy they need to effectively carry out their respective missions. Decentralizing power in the federal government may inherently carry the burden of greater governmental reorganization and internal realignment, but it is a worthy price to pay for the preservation of our democracy.

If it were up to McClatchy, CSA-generated articles would carry human reporters’ bylines. Kathy Vetter, the chief of staff, said during a March 17 meeting that “If [journalists] don’t have the ability in their contract to remove their byline, we’re going to use their name.” Why does McClatchy want human journalist bylines instead of running the CSA stories under a generic credit? Because they want the legitimacy that comes from marking such content as human. Eric Nelson, vice president of local news, said human bylines on the CSA stories was a way to show “authority” on Google so the articles would be ranked higher in the search engine’s results. Now, journalists at several McClatchy newspapers are engaged in a byline strike. They argue that the use of the CSA material amounts to an ethical breach that undermines the trust between local newsrooms and the communities they serve.

The McClatchy fight illustrates how AI accelerates and combines two challenges that the information ecosystem was already facing.

The first is what I call the Cylon problem.1 1. For the reader who has not seen the (excellent) television series “Battlestar Gallactica,” the Cylons are a cybernetic race. Much of the series’ early dramatic arcs and plotlines turn on the inability of human characters to detect whether another character is a human or a Cylon. Simply put, one can never be quite sure whether a person or a piece of content one encounters online (and increasingly offline) is real or fake.2 2. Fake is a deliberately provocative label. There are many ways that online content or interactions can be fake. There are bots and AI agents and the content they produce and the conversations they have with people and other bots and AI agents. There are human spammers and human-seeming accounts run by marketing firms. There are influencers that farm engagement by training other would-be influencers in how to make AI influencers to produce automated streams of content in a pyramid scheme of fakery. There are humans who have become reliant on AI for their interactions with other humans, AI summaries of real books sold as the book itself, and AI-assisted video and image clippers that steal real content. For a more extensive list of AI fakery from which my list is cribbed, see https://www.404media.co/your-ai-use-is-breaking-my-brain/. On clippers especially, see Mia Sato, The clippening, https://www.theverge.com/report/920005/social-media-clipping-podcasts-clavicular-marketing-mrbeast. The persistent possibility that anything or anyone one encounters could be fake cultivates a constant state of interpretive suspicion, a paranoid style of online (a)sociality.3 3. This is a riff on Richard Hofstadter, the Paranoid Style in American Politics (1965). It also creates a second order dynamic where the real is constantly at risk of being undermined by the fake. The real is falsely accused of or negligently labeled as fake, it is imitated to death by the fake, and the real is drowned out by the fake. The Cylon problem predates AI, but AI intensifies the problem along both qualitative and quantitative dimensions. High quality fakery can now be produced at scale and on the cheap. Unscrupulous actors can mass-produce slop and engagement bait. They can also level (at least facially) credible accusations of fakery to discredit opponents. The Cylon problem accelerates the downward swirl of epistemic destabilization that the shift from traditional to online media had already kicked off. Left unchecked it produces what Jason Koebler calls the “zombie internet.”

The second challenge is concentrated informational power. AI doesn’t just empower fakers and fakery in horizontal competition with journalists, artists, and other knowledge producers. Cheap, high-quality fakes waiting in the wings threaten workers in their vertical relationships with bosses in newsrooms, studios, or universities. Like prior forms of automation, AI replaces labor with capital in production and thus offers a technological means of empowering capital at labor’s expense. The Miami Herald might employ a journalist, but McClatchy cannot own that journalist’s tacit knowledge of when to push a source, when to track a lead, and what cluster of facts form the heart of a story. The space of a journalist’s judgement, experience, instinct, and skill is also the space of her freedom and her power. An editor can impose some control but cannot tune how she wields her perspective and her skill in how a story gets told. But McClatchy can “own” the output of its CSA, and its AI can fine-tune its outputs along varying shades of emotional tone and perspective to precisely match the preferences of an editor (or an owner).

McClatchy is not alone in its push to supplement worker-made media with AI offerings. Universities have begun experimenting with feeding videos of course lectures from Canvas into AI systems to produce AI-built personalized courses without faculty knowledge or consent. Movie studios have pushed actors to consent to full-body scans and fights over digital replication and likeness were a major feature of the 2023 SAG-AFTRA negotiations. Startups have unveiled AI-generated podcasts.

In a general sense, the introduction of the CSA, and other AI tools like it, follows a well-worn playbook of automation as wage suppression. Step one: Rip off the knowledge labor encoded via stores of human content by scraping the internet and engaging in intensive worker surveillance. Step two: Volun-tell workers to engage with and refine AI products to make them of sufficient human-seeming quality.4 4. While some AI training and refining happens in-house, many AI models also rely on outsourced gig work provided by third parties like Mercor for human training and refining. See, e.g. https://nymag.com/intelligencer/article/white-collar-workers-training-ai.html; on the ubiquity of AI use being pushed onto workers, see https://nymag.com/intelligencer/article/ai-replacing-entry-level-jobs-gen-z-careers.html?utm_source=substack&utm_medium=email. Step three: Once the AI is sufficiently good at mimicking worker produced content, fire the workers or wield the threat of AI replacement to weaken worker standing.5 5. When workers help codify their work, they make it more vulnerable to downward wage pressure from automation. See https://www.dallasfed.org/research/economics/2026/0224. To a greater degree than past forms of automation, producing AI good enough to replace or disempower workers requires cooperation from those same workers, or at least workers in the same industry. The transformation of knowledge labor into AI capital is mediated via data that workers themselves generate while doing their jobs. Indeed, steps one and two describe how data encodes the worker’s own knowledge, rendering it legible to AI systems that can then replicate the worker’s expertise.

**

Evidence suggests that many people do not like navigating the Cylon problem. Take music for example. A poll by The Hollywood Reporter and the Frost School of Music found that 66 percent of people have never knowingly listened to music generated by AI. This dislike of AI music also shows up in revealed preference. At the streaming platform Deezer, while there are 75,000 daily uploads of AI music, a number that “threaten[s] to overtake actual human-made music,” Deezer’s director of research notes that on the listener side, growth is mostly in fraudulent streams, and that “consumption after fraud removal is not gaining much traction and is still very concentrated on a few viral tracks.” Indeed, fraudulent streams of AI music make up an increasing proportion of AI music streams overall, suggesting that growth in AI music streams comes from fraudulent streams that have succeeded in beating listeners at the Cylon problem. Beyond music, when a production company debuted Tilly Norwood, the first AI-generated actress, it faced overwhelming backlash and condemnation across the film industry. A recent survey found that among professional visual artists, 99 percent of artists “disliked” generative AI. Familiarity seems to breed contempt; 85 percent of respondents said they abstained from using generative AI in their work, even though a majority encountered generated AI images at least weekly in their practice.

Indeed, a recent Pew Research Center poll found Americans are overwhelmingly more concerned than excited about the increased use of AI in daily life. Opinion tracks a distinction in how AI is used. As an information synthesis and detection technology embedded in finance, weather modeling, and fraud detection, people are broadly in favor of at least some AI use.6 6. This approach of AI as “infrastructural” also tracks how AI has been deployed in China, where AI adoption is regulated and has not sparked the same degree of backlash. See https://www.nytimes.com/2026/05/09/opinion/ai-china-america-race.html. People are overwhelmingly opposed to AI when it replaces human advice regarding issues people consider personal and more subjective, such as advising people about faith or relationships. To be clear, this is not to say that all people are against engaging with AI. But it is to suggest that many people are engaging with AI more than they would prefer, especially when such engagement is with AI agents or content that actively presents as human or human-made.

**

A range of possible interventions could alleviate key elements of the Cylon problem and its accelerating effect on informational power consolidation.

First, jurisdictions could extend existing fraud and misrepresentation doctrines to include corporate practices that intentionally or negligently mislead customers regarding a basic assumption underlying the commercial interaction—that customers are spending their valuable and finite time, attention, or money on human-produced content or speaking with a human agent.

Second, extending the same justifications that ground affirmative disclosure requirements under contract and consumer protection law, jurisdictions can pass legislation to require clear labeling of AI-generated content and disclosure of AI agents. Some entities, like Spotify and The New York Times, are already voluntarily developing practices to label AI content and disclose how AI was used in the creation process. These voluntary schemes are laudable. They help consumers make informed choices about what content they choose to consume. However, absent market-wide requirements for disclosure, companies may face structural incentives to underinvest in voluntary standards.

Underinvestment seems likely due to a combination of several factors. First, there is a large market for genuinely human content and human interaction that is (in theory) more expensive to produce. Given how cheap it is to imitate humans and human content, and how desirable human content or interactions are, there is a sizable incentive to pass off AI content as human. This, in effect, encourages business practices that deceive consumers into paying (either financially or with their time and attention) for content they have expressed a wish not to consume. In theory, such behavior would be disciplined by consumer demand and choice—customers, faced with options between human content and services and Cylon content and services, can reward the companies that invest in producing the content and services they like. But the very nature of the Cylon problem is that the risk of customer detection of AI is low. Thus, even well-meaning companies may face market incentives that reduce labeling practices into “humanwashing.” Companies can get a reputational boost from supporting human creators by announcing labeling practices—but will not face sufficient market discipline from consumers to adequately invest in the ongoing enforcement required to substantially prevent consumers from engaging with fraudulent AI.

In contract settings, many jurisdictions impose affirmative disclosure obligations on the party best positioned to efficiently identify a latent defect that is considerably more difficult (i.e., more costly) or impossible for the other party to discover. This maps nicely onto the Cylon problem. It is difficult if not impossible for consumers to detect if the content they are consuming or agent they are speaking to is AI but readily known by the company generating the content or hosting the agent. Rather than forcing consumers to engage in expensive (and often inaccurate) AI detection to obtain information the company already has, affirmative disclosure ensures efficient information sharing between the parties.

One common counterargument to the Cylon problem is to reject that it describes a problem at all. If consumers can’t tell the difference, the argument goes, then why should it matter if content is AI or human? This objection is odd given the prevailing tendency of commercial legal regimes to center consumer sovereignty and demand-led market incentives. Ours is not to question why consumers want to know if food contains GMOs, or if supply chains contain child labor, or if products are American made. If these are salient and material consumer demands, then we ought to facilitate market conditions that reward companies that invest in honestly and fully meeting those demands. The same goes for human content.

Of course, AI disclosure obligations—and even more so, claims that holding out AI-generated work as human work constitute fraudulent or negligent misrepresentation—exist in tension with the maximalist free expression positions that newsrooms have historically adopted regarding other disclosure obligations. In The Washington Post v. McManus for example, the U.S. Court of Appeals for the Fourth Circuit struck down a Maryland law requiring newspapers to disclose political advertising on First Amendment grounds. However, that law was content based—it regulated campaign related speech only—and it targeted political speech. Maryland’s law also implicated The Washington Post’s editorial discretion, since media outlets’ advertising choices receive First Amendment protections. Disclosing that an article was generated in whole or part by AI is not specific to the content of that article, nor does it target political speech. Insofar as it restrains editorial decisions, it does so narrowly, to disallow the deliberate misrepresentation of the nature of journalistic content to audiences.

To be clear, disclosure obligations may not resolve, or even apply to, every kind of AI Cylon problem. Overly ambitious AI misrepresentation or disclosure laws may run afoul of First Amendment challenges. Misrepresentation and affirmative disclosure frameworks govern speech within commercial exchanges; the burdens they place on speech are grounded in deep justifications regarding the centrality of commercial speech to contracting activity. AI content that does not implicate or involve a contractual relationship with the entity providing the speech, especially if such speech is political or entertainment, will have stronger First Amendment protections against mandatory labeling or disclosure.

Disclosure proposals focus on the demand side. The basic idea is that clearly demarking human content will relieve both horizontal and vertical pressure on human creators. If newsrooms are adequately rewarded for not replacing humans, they will face less market pressure to do so. If it becomes expensive and risky to lie to your customers about your “live booking agent” being AI, the cost savings of replacing humans with AI are reduced.

But reform proposals on the supply side exist too. Indeed, such proposals may offer a more enduring pathway to broader reform. Data association rights for content and knowledge producers would give data producers greater control over if, when, and how their data mediates the transformation of knowledge labor into AI capital.7 7. See also https://arxiv.org/abs/2506.10272. It would give journalists, influencers, and workers not just a negative stake against the privacy invasions of surveillance, or a limited copyright claim against certain forms of expropriation. Instead, systematic data entitlement rights would give data producing communities meaningful control—over whether their knowledge is commodified for AI use at all, and if so, how they may fairly benefit from its value. To provide effective supply side counters to concentrated informational power, broad data entitlement rights are best understood as rights to form associations and bargaining units with similarly situated data producers, rather than more traditional individual entitlements over one’s data itself. As I and many others have argued, data governance rights work best when collectively exercised via associations, rather than via individuals. Granting creative or workers associations greater collective power to determine if, when, and how their data is used to produce AI capital would allow creators and knowledge producers to assert control over how AI is produced and how its value is shared. Proposals for greater data entitlement have the additional benefit of largely avoiding (or at least minimizing) First Amendment challenges. Such proposals do not restrict or impose conditions on institutional speech; their intervention is upstream of any instance of expression. Instead, they expand the set of rightsholders that have a say in how corporate automated expression is produced to begin with, and who can claim a share of its value. Disclosure obligations and other demand-side reforms may provide a stop gap measure against an unchecked ecosystem of Cylons. But supply side interventions that distribute informational power more broadly are, in my view, necessary to achieve more enduring and significant reform.

The event focused on a provision of the Immigration and Nationality Act (INA) that the Trump administration has invoked against pro-Palestinian student protesters and has also used to target researchers and advocates whose work focuses on social media and online harms.

Nadine Farid Johnson, the Institute’s policy director, warned that each expanded application of the INA’s foreign policy provision functions as a kind of trial balloon. “It’s meant to inure us to the ever-growing effort that is being made to control speech, to control protest, to control association, and to control dissent,” she said.

Speaking at the briefing, Mahdawi said, “The issue is at the core of the Constitution of this country. And if it’s not addressed properly … I’m imagining that the DNA of this country would be changed."

Institute attorneys Carrie DeCell and Xiangnong (George) Wang took part in the congressional briefing, discussing the Institute’s lawsuits in American Association of University Professors v. Rubio and Coalition for Independent Technology Research v. Rubio. The cases challenge the administration’s use of immigration law to target noncitizens for First Amendment-protected activities. At the press conference, Sen. Van Hollen highlighted the words of Judge William G. Young of the U.S. District Court for the District of Massachusetts, who found in AAUP v. Rubio that the administration’s conduct was “not only unconstitutional, but a thing virtually unknown to our constitutional tradition.”

Ryan Morgan, policy fellow at the Institute, moderated the briefing and discussed congressional efforts to reform the INA. Together, the briefing and press conference underscored the danger of allowing immigration powers to become tools for suppressing protected expression. As Morgan noted, these policies often begin by targeting groups that are politically vulnerable, but “they don’t end there.”

The Land of the Free Act would repeal Section 237(a)(4)(C) of the INA. The legislation was introduced in the House by Rep. Deborah Ross (D-N.C.) and Rep. Becca Balint (D-Vt.) in August 2025, and Sen. Welch’s Senate bill is co-led with Sen. Alex Padilla (D-Calif.).

Watch the full press conference below.

In February 2025, JD Vance stood before an eminent crowd of European leaders in Munich and accused them of failing democracy and turning their backs on “Western” values. Claiming the mantle of free speech warrior, he dismissed disinformation as a “Soviet-era” word and presented far-right harassment of migrants as part of a legitimate public debate. “If American democracy can survive ten years of Greta Thunberg’s scolding,” he admonished, “you guys can survive a few months of Elon Musk.” It was an act of hypocrisy, of course, because even if Europe has room for improvement on free speech, the Trump administration itself was just beginning an unprecedented crackdown on domestic and global civil society. The claim to be free speech defenders is a fundamentally hollow one, a distraction, political signaling and ground laying. Designed and honed over many years, Trump, Vance, Musk and their allies in Congress, Silicon Valley, parts of the media, and Europe—especially Alternative for Germany, France’s National Rally, Reform UK, and Hungary’s recently ousted Fidesz—have self-interestedly defined the terms of free speech and used their narrative to try to protect themselves against claims of censorship, even after, for instance, the fiasco of Federal Communications Commission Chair Brendan Carr’s attempt to silence Jimmy Kimmel.

There is more to the populist free speech claim than hypocrisy. We should identify the narrative themes that thread through their rhetoric. In their absolutist world, speakers reign supreme, efforts against hate, disinformation and harassment constitute anti-democratic interference, content moderation is tyranny, and regulation of any sort means censorship. This framing, a key feature in the politics of populist parties globally, exploits weak civic and cultural understanding of the purposes of freedom of expression, seeking to undermine an information environment that should, if well designed and supported, promote knowledge and debate essential to democratic society. The framing is also deeply consequential, a foundational argument behind a range of destructive policies.

It is also wrong. Permit me a moment to advocate the human rights law framing of freedom of expression, the global free speech vernacular, rather than the domestic American one. The language of the First Amendment is, compared to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and about 170 other states, both categorical (Congress shall make no law) and linguistically narrow (abridging freedom of speech, or of the press).

By contrast, Article 19 provides that freedom of expression protects everyone’s right to “seek, receive and impart information and ideas of all kinds, regardless of frontiers,” through any media of one’s choice. Seek and receive, not just impart. It protects speakers and also audiences and listeners, the professional researcher and the recreational rabbit hole finder; it promotes the public’s rights to information, accountability, independent investigative journalism, education, and civic space for debate and culture. It demands that public authorities only adopt restrictions that meet strict tests of legality, necessity and proportionality, and legitimacy. Its precursor is the Universal Declaration of Human Rights, with its similarly worded Article 19, and its framework may be found in European and inter-American regional treaties and jurisprudence and in domestic constitutional law worldwide. The Article 19 framework is also the legal basis of sound regulation designed to protect and promote vulnerable communities, the right to vote, and democratic institutions. As an engine for innovation in business, science, technology and governance, a multidimensional freedom of expression is what separates the dynamism of democracies from the retrograde reality of repressive regimes.

As an alternative to the First Amendment, this framing of free speech rarely gets aired in political and popular discourse; it certainly isn’t central to any political agenda in the United States. Instead, the public gets a steady dose of one-sided arguments about free-speech-for-speakers from the very same politicians and officials who are clamping down on public debate and pluralistic media and consolidating the power of digital-age companies entwined with the state.

All of this argues for a process of reclamation of “free speech” for the public’s interest, not merely for the interests of companies, governments, or partisans. Every policy supporting an information environment that works for democracy—Big Tech transparency, guardrails on AI, vibrant public and independent media, active and unimpeded civil society organizations, efforts to address disinformation and hate, and so on—depends on the public, lawmakers, and the courts embracing not only the language of Article 19 but its underlying meaning and value. It’s a battle we are losing right now, with grave consequences for the future of democracy.

Reclamation should be a political and civic project. It requires that democratically minded leaders in government, culture, business and civil society make the case for a vision of “free speech” that both opposes censorship of any kind while also advocating other free speech values that benefit the public: pluralist media, public broadcasting, individual access to information (understanding access in all its meanings), tech transparency and competition, AI guardrails, and much else. Obviously, this will have to translate into legislative agendas as well, supported by a strategy of showing why investments in a healthy information ecosystem benefit individuals and their communities. But I believe we won’t make any progress if we fail to persuade the public that democracy depends on a broader way of thinking about free speech than currently on offer today.

Our purpose as a government, as a country, is to protect and advance human dignity under all situations. And human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

Katy Glenn Bass:

Hello and welcome to Lawyering Without Law, a podcast by the Knight First Amendment Institute where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country’s slide into authoritarianism. I’m Katy Glenn Bass. I’m the research director at the Knight First Amendment Institute, and you just heard a clip of our next guest, Alberto Mora, who we will introduce in just a minute. Joining me back on the podcast today is my co-host, Professor Madhav Khosla, the B.R. Ambedkar Professor of Indian Constitutional Law and professor of political science at Columbia University. He is also the Knight Institute senior fellow.

Madhav Khosla:

Hi, Katy. Great to be back on the show.

Katy Glenn Bass:

I’m glad you’re here.

Madhav Khosla:

Joining us today is Alberto Mora, who served as the General Counsel of the Navy during the George W. Bush administration.

Katy Glenn Bass:

After learning that detainees at Guantanamo Bay were being interrogated using practices widely considered to meet the legal definition of torture, Mora became one of the most prominent internal critics of the administration’s use of torture during the war on terror, arguing that these practices violated both US law and democratic values. In this conversation, we’ll talk about the fight against the use of torture after September 11th, the role that lawyers played during moments of national crisis, and what those debates can tell us about the present day.

Madhav Khosla:

Alberto, welcome to Lawyering Without Law.

Alberto Mora:

Thank you so much.

Madhav Khosla:

So to start off, can you tell us a little bit about your background, how you became involved in the debate over torture and interrogation policy inside the US government after 9/11?

Alberto Mora:

Well, by way of background, I think the first point to convey is that I’m the son of a Cuban father and Hungarian mother. I was born in Boston, but my father, who was studying postgraduate gastroenterology at Harvard Medical School, took his young family back to Cuba. So my first eight years, for all practical purposes, were in Havana and Pinar del Río, Cuba. The family supported the Castro revolution, thinking it to be a Democratic revolution, but soon thereafter, it was clear that it was not and the family then migrated to the United States. One year in Miami, then grade school and high school in Jackson, Mississippi, then off to college at Swarthmore.

And then into the State Department. That started a career that was both private sector and governmental in the George W. Bush administration. I was nominated and then confirmed to be the General Counsel of the Department of the Navy, so both the Navy and the Marine Corps. I assumed my responsibilities in the summer of 2001 was in the building when the aircraft hit the Pentagon on 9/11. And then my professional life changed, much like a lot of people’s lives changed after that day. I say my professional life changed because the team around the Navy Secretary, Gordon England, was selected really to redesign the business functioning of the department, make it more efficient. But then as soon as the aircraft hit, the country was at war and almost all of that work went out the window and we were focusing on fighting the war against terror.

Madhav Khosla:

And you had initially understood the Guantanamo interrogation program as a legal error that could hopefully and potentially be corrected through internal channels. When did you realize that that framing was inadequate and what did that reveal about how lawyers inside government understand the institutional role?

Alberto Mora:

Well, I actually had no understanding of the interrogation program at first. The interrogation and really detainee management and handling activities were classified as operational activities during the war, meaning that it was handled through military channels, really not through the Department of the Navy channels. The departments, all the military departments are entrusted with training, equipping, and then providing combat-ready forces to the combatant commanders who actually deploy the military. So I, as Navy General Counsel, had no involvement whatsoever, wasn’t even copied on correspondence or memoranda concerning anything dealing with the detainees, including the interrogation activities. I knew that detainees were being sent to Guantanamo. In fact, I was president in Guantanamo when the second flight load of detainees arrived and saw Camp X-Ray and how it was set up, which struck me as inadequate temporary facilities.

But the first time I got involved in interrogation would’ve been in November 2002, so more than a year after the 9/11 events, when an organization within the Department of the Navy, which I supervise, which is the Naval Criminal Investigative Service, they’re responsible for law enforcement, anti-terrorism, counter-espionage, counter-terrorism activities for the Navy, came to me and told me via the director of NCIS that they had been hearing rumors and had information concerning detainee abuse in Guantanamo. He wondered whether I wanted to get further involved in that. I did. NCIS came to me and told me what the basis of their suspicion was that detainees were being abused. They hadn’t seen it. They had not been present in any interrogation session, so they couldn’t verify it. But Guantanamo being a small place and people sharing work notes, the mess halls, the dormitories during recreation, they came to understand that one of the two task forces, the military task force responsible for obtaining intelligence information that could be used in military operations from the detainees, had been authorized and was using force to elicit the information.

NCIS went hunting further. They obtained, without permission, by the way, fragments of interrogation transcripts. And what they put together was a picture that untrained interrogators, mainly young with no language experience, no cultural experience, no interrogation experience, had been authorized to use force and the use of force was gradually increasing. NCIS was concerned that if the Guantanamo interrogation practices proceeded as the historical evidence shows globally, meaning that if force is authorized, then the level of force will continue to increase until they’ve reached the level of torture. They felt that that process was underway. It’s called force creep. And they felt that at Guantanamo, the interrogators may have already reached a level of torture.

When they finished the brief, I said I had heard nothing about this, but it really sounded like unauthorized unlawful activity was going on and I promised to look further. Two days later, I had in my hands the composite memorandum that was capped by a memorandum from the Department of Defense General Counsel Jim Haynes to Secretary of Defense, asking for authority to apply certain counter-resistance interrogation techniques to the detainees that included walling, potentially waterboarding, detainee-specific phobia techniques and other techniques that appeared as either clearly being in the realm of torture, such as waterboarding or potentially being waterboarding, depending on how they were applied to the individuals in question, either singly or in combination.

When I saw what had been requested by way of interrogation techniques, the absence of any competent legal memorandum associated with the legal authority for applying those techniques and the fact that the DoD General Counsel, with a consent of the chairman of the Joint Chiefs of Staff and the deputy Joint Chiefs of Staff, had submitted a request for approval of those techniques to Secretary Rumsfeld, Secretary Rumsfeld had approved them, I felt that this had confirmed what NCIS had feared and at least on paper, given the legal arguments and the interrogation techniques applied, that the interrogators might be certainly using cruel and inhuman and degrading treatment, but potentially had reached the level of torture at the time.

That was my initial set of understandings and my initial involvement with the entire procedure. I felt that this was entirely a mistake, meaning that had the attorney in Guantanamo, this is the Judge Advocate General for the Army that was a chief lawyer in Guantanamo, not written a memorandum that I thought was beyond their capabilities and I deemed as incompetent from a standpoint of accurately describing the legalities of interrogation in Guantanamo. That was approved by Southern Command in Miami, then sent up to the joint staff. The legal advisor to the chairman had not acted on the memorandum until the DoD General Counsel had gotten its hands on it and then he and the secretary approved it. Secretary approved it, I felt, because he had been relying on not only his general counsel, but four or five levels of lawyering before it had gotten to him. I felt the general counsel and certainly Secretary Rumsfeld were overwhelmed and not devoted sufficient time to read the memorandum and imagine what it could lead to. And so they’d missed the issue.

As soon as I got the memorandum, I went to see the DoD General Counsel, said, “Look, I’ve got this memorandum. I think it potentially authorizes torture.” He says, “No, it doesn’t.” And then I spent the next 45 minutes walking him through why I believe that easily the authorized techniques could lead to the torture. He listened to me as long as I cared to speak, but I felt that he immediately understood exactly the point I was making. I felt that because he had made a mistake, because I felt naively that no American lawyer, no senior government official would ever knowingly authorize the use of torture, that he would recognize his mistake and was certain that before I left his door to exit his office, he’d be calling Secretary Rumsfeld asking for the authorization to be withdrawn or suspended for the time being.

And I really didn’t think much about it. I thought the problem had been solved once the mistake had been pointed out. And about 10 days later, two weeks later, I was at my mother’s house near Miami, Florida in the pool when I got a phone call from the NCIS director, David Brant, saying, “Remember the problem we had talked about in Guantanamo, well, the problem is continuing.” And I was standing with a phone dripping wet and realized that while all of this had been a mistake, it was not inadvertent that people, who have been cautioned about the illegality of the activities, proceeded without changing. And I knew I’d had a different kind of problem than one of a simple legal mistake by an overworked attorney.

Katy Glenn Bass:

Thank you for sharing that history. So thinking about the way lawyers were understanding their institutional roles during that period, there were obviously a number of lawyers who were writing justifications for these interrogation practices. There were also lawyers like you and others inside the Department of Defense who believed that the program was unlawful and was inconsistent with American values. So how does this program continue in the face of internal opposition? What allows a large institution to act against what a lot of officials privately believe?

Alberto Mora:

That’s a question I’ve been posing myself for the last 25 years. I have yet to come to a satisfactory explanation how this came about. For those of us at my level, at the departmental level in the Department of Defense, and this is all the departments, Air Force, Army as well, we were not involved in the original lawyering. I wasn’t and I don’t believe the others were either. The Department of Defense General Counsel was involved. He was part of the inner circle of attorneys in the administration. That would include White House Counsel Alberto Gonzales, it would include the attorney general, it would include Vice President Cheney’s legal counsel at the time and a few others. State Department was not involved, for example. They were excluded from this. So there was a group of attorneys, probably less than 10, maybe even half of that, who understood the program. And as history later showed, the program was initiated by the CIA and taken to the White House into the attorney general’s office for recommendations to be enacted and then approved legally.

We had no understanding of that. It’s like the blind man touching the elephant. You see a portion of it, but you don’t see the totality of it. You don’t understand it. That’s what happened to me. I felt this was wholly homegrown in Guantanamo, it was mistakenly approved in DoD. I had no knowledge. In fact, I didn’t even suspect that National Security Council, attorney general, Office of Legal Counsel, White House Counsel had been involved in devising the program. I thought it was entirely a problem of the Department of Defense’s own making. It was only later actually until after Abu Ghraib that I got a fuller understanding of the entire dimensions of the program.

I don’t understand how this happened. I don’t understand how any single attorney, by looking at the paperwork, could not have understood that this was torture and it was illegal under any interpretation. But if I were to interpret what happened, I think the root cause is the fear and fury that the entire nation felt after 9/11, a fear that many more attacks would take place and many more Americans and other nationalities, residents in this country would die and the fury that this had happened and the determination to fight back against those responsible. I’m certain that the fear and fury distorted the mentality, the thought process, the lawyering process, most fundamentally, but certainly the values. And it went up from CIA and then they encountered attorneys both in the White House and the Department of Justice, principally John Yoo, who was a senior national security attorney in the Office of Legal Counsel. Very few other people at that level in the Department of Justice or at the White House had experience in international humanitarian law, laws of war. And so they were acting on the advice of a very few people who were sympathetic to the application of torture to these individuals.

Fundamentally, these attorneys thought that Al-Qaeda, through its barbarism, had opted out of the human race, individuals who, because they demonstrated their willingness and ability to kill and manifested their desire to kill many more, did not qualify for the ordinary legal protections or human rights protection that all individuals are entitled to. This was a mistake, a mistake on many different levels, but the failure to recognize the inherent right to be free from torture by individuals, including people of Al-Qaeda, they created a sham legal analysis that was not meant so much to provide an objective application of the law, but really more to create a get-out-of-jail card and legal immunity screen to protect those who recommended, designed, authorized, and implemented the program from ever being held responsible for having committed war crimes as it turns out. I believe that was the mechanism. They wanted the torture. They felt that the individuals who were targeted for torture had volunteered for that kind of treatment, and then they wanted to ensure that if anybody found out about the program, nobody would be held responsible for it. That was the internal, I think, locus, calculus. And then it filtered up through all these various departments and apparently nobody objected it until they got to me as far as I know. It’s shocking that that should have reached that level of permission at that point.

Katy Glenn Bass:

I agree with that. You spoke at the beginning of the episode about your own family history and your family’s roots in Hungary and in Cuba. Did that family history shape how you reacted to this program. And if so, how?

Alberto Mora:

Yes, absolutely. Both my parents and my mother twice had gone into exile. They had lost their family, their way of life, their language. You might come to the United States and have a very successful life and very comfortable life as my parents did, but nonetheless, you experience a type of suffering that is incurable by later success outside of your own homeland. My father, for example, was always Cuban, academic physician, did well financially, professionally, very credentialed, but he always felt Cuban and always felt that part of him was missing. What that taught me was the importance of politics, the important role of the United States in defending democracy and the rule of law. It taught me how comfort and security may be lost, and it pointed me unknowingly at first, but really in the direction of becoming a lawyer and becoming interested in American foreign policy and the role of the United States in the world. And that role I always felt was to defend democracy, defend human rights, defend the rule of law as the primary functions of American power globally.

Madhav Khosla:

So in 2016, you wrote a piece for Foreign Affairs emphasizing the strategic costs of torture, and that argument is sometimes read more through a pragmatic lens rather than through a moral one. And how do you understand the relationship between the strategic case and the moral case, and what’s your sense about which one perhaps proved more effective within government?

Alberto Mora:

So I’ve spoken to very accomplished academics who also served in government, including at the National Security Council. And they said that they never heard a discussion at the National Security Council as to what the right thing to do is. I mean, rather right thing, the moral thing to do was. There’d never been a discussion about morality at the National Security Council level, which takes us to a point worth noting that when the Bush administration approached the issue of torture, they only asked the question, “Can we do this?” Meaning they asked the legal question. They never asked the question, “Should we do it?” Which is why, as far as I know, and I think as far as the historic record now indicated, the National Security Council was never tasked with producing any memorandum as to the should question, “Should we use torture even if it were to be legally authorized to do so?"

I think had a pair of young staffers been given the weekend to put together a memo, they would’ve come up with 50 reasons why the United States should not engage in torture for foreign policy reasons, in addition to the legal and moral reasons as well. Unfortunately, the National Security Council on three occasions authorized the use of torture. And this is the full National Security Council, which included individuals like Colin Powell, who later told me personally that he regretted those choices that had he known what he was doing, what they were all doing, he never would’ve authorized the implementation of the enhanced interrogation program that the CIA was organizing.

So back to your question, I think as I thought about why the United States authorized torture and how it came about to do so, I felt that we had undervalued the policy reasons why torture should never have been implemented. And what I’m talking about there is that in reality, the United States is a construct of many ideas, but principally of certain values that are baked into the Constitution. We’ve organized our Constitution, we’ve organized our legal system, we’ve organized our system of governance in order to value and implement certain moral judgments, and at the heart of the moral judgments is the importance of human dignity. Our purpose as a government, as a country, is to protect and advance human dignity under all situations, and human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

And the Bush administration did not realize that by essentially taking the right to be free from torture out of the basket of inalienable personal rights, both under international law and under American constitutional rights, we were then diminishing this fear of rights not only globally, but also within our own country. We had transformed the right to be free from cruelty to a matter of policy discretion by government, meaning that no, it’s not a matter of rights, individual rights; it’s a matter for any government anywhere to decide when or how to use torture to advance whatever security objective or other national objective they may have. That severely impinges on human dignity.

What’s worse, as the enhanced interrogation program metastasized, meaning that the black sites were constructed in various different countries, many other countries were recruited to engage in the extradition programs through other countries, for example, Morocco, Egypt, Jordan, other countries and so forth. We were asking them to put aside their adherence to human rights and to their own laws prohibiting cruelty to individuals and adopting a new architecture of human rights, which severely diminished. So I think their policy considerations, and in fact, in one of the conversations I had with the Department of Defense General Counsel, I asked him the question, “Who decided that it was more important or more in the national interest for us to be able to torture half a dozen, two dozen individuals rather than continue to coherently espouse the advance of human rights across the world, which has brought such benefits to the United States and so many other countries for over 50 years?” And so, whether we knew it or not, it was a policy decision we had made that we would value the application of torture over coherent enforcement and expansion of human rights.

So that was one problem, one policy problem with the decision to use torture. But I also felt pretty clear that the rest of our allies in the war on torture, meaning all the European countries, where this kind of behavior was per se criminal activity on those countries, those countries would not support an American policy or revisions to the architecture of human rights, such as the United States was proposing. And their opposition to that would also mean necessarily that our ability to create an alliance, expand an alliance, and fight with an alliance that shared the same values would be compromised. So our efforts to fight terrorism would suffer militarily as a result of our mistake in using torture as a weapon of war.

So there are a number of reasons. And in fact, I think the policy consequences of the use of torture were severe, not only to ourselves, our rule of law, our constitutional values, and our purpose, but also to the global alliances that we had sought to expand and maintain as a key foreign policy focus since the end of World War II. And I had two interests leaving the Pentagon. One is that the Bush administration’s definition of torture, which essentially permitted, as one critic said, everything that Saddam Hussein had been doing in his own country under the OLC definitions of torture, that that definition not be changed, that we revert back to the standard international definition of what constituted extreme force. And the second was that we understand not only the legal consequences, the moral consequences of use of torture, but the policy consequences that would necessarily ensue if that kind of reasoning were to be adopted by the United States and other countries. So those were my principal objectives and concerns following from this experience in the Pentagon.

Katy Glenn Bass:

Thank you. So you challenged the torture program from within the administration, and I believe you stayed for several years. You left at the beginning of 2006, correct?

Alberto Mora:

Yes, that’s right.

Katy Glenn Bass:

So looking back now, do you think that staying inside was the right decision? And do you have any advice for lawyers within this administration who are weighing the trade-offs between dissenting internally and leaving and going public?

Alberto Mora:

I think decision to resign is a difficult decision, a complex decision. It has various different kinds of metrics. Ultimately, it’s a personal decision that falls back on one’s own sense of right and wrong. It will vary with every individual. And by the way, I never asked anybody in the Department of the Navy or in any other administration to do anything on this program because I understood that this could be career-limiting. I felt that as a political appointee, this was my job. This is the reason that you have political appointees to take action on decisions that might be politically convenient or could be career-ending for somebody who’s a career officer.

I sympathize and I understand that if you’re 20 years into a 30-year career as a civilian in the general counsel’s office in the Department of the Navy and you’ve got the proverbial kids in school and the mortgage to pay off, that you losing all of that, losing your retirement after 20 years of investment is a profoundly serious decision with profoundly serious impacts on one’s wife and children. And because I felt I could do this myself, I could raise the issue, confront the decision without necessarily involving others, I did that, but also recognizing an important element in the decision whether or not to stay in an administration or not stay in an administration.

I think, first of all, what happened with me is that most of this activity was done before Abu Ghraib. So we raised the issue, I was successful, and then I don’t mean to give myself the credit, because when I went around and talked to the other services, senior judge advocates, all of them agreed with my analysis. All of them agreed that this was unlawful, that the memoranda were incompetent, and that as a policy decision, as a military decision, the use of torture was profoundly counterproductive on many different levels. So after a relatively brief period of time, I’d say maybe two months or three months after the initial discovery of the torture, it wasn’t me that was working. It was a team, myself and all the other senior TJAGs that were advocating for the same position within the Pentagon. This was an achievement from the standpoint of attempting to counter the policy.

I went repeatedly back and indicated that I would have to write a written memorandum and put it in the file, send it to the DoD General Counsel, staking my position that the authorized techniques were torture. Secretary Rumsfeld rescinded the authorization to use those techniques in Guantanamo. And NCIS confirmed to me that the abusive interrogation at Guantanamo had stopped. This, to me, was a victory. I felt that common sense had finally prevailed. It took a while longer than we would have wished, but nonetheless, the Pentagon had come to see the reality that those interrogation techniques were neither legal nor wise.

Secretary Rumsfeld then ordered that we create what was called a working group to analyze the issue in much greater detail. That working group was then directed that they were to accept the Office of Legal Counsel’s memoranda on harsh interrogation techniques, which I certainly wouldn’t accept and it turned out the other JAGs would not accept as well. I informed the DoD General Counsel that I would not submit to OLC advice if this was going to be the advice that torture was authorized, and we would oppose or not concur with any working group recommendations that would rely on those memoranda.

The working group was disbanded, we thought, and no memorandum authorizing those techniques was ever authorized. So we had thought that we had won the debate concerning techniques, and I, and I don’t think anybody else among the senior JAGs, ever received any other indication that abuse was going on elsewhere outside of Guantanamo until Abu Ghraib. When Abu Ghraib exploded in the summer of 2004, I was astonished because I was wondering, how could this have happened? We had this discussion in the Pentagon, we had a decision, and so forth. And then of course then the disclosures about CIA involvement, Justice Department involvement, National Security Council involvement, the presidents and the vice president’s own involvement came out, and it became clear that what I had thought the problem was was a complete misreading. I was looking at only at a narrow corner of the issue, not at the entire picture.

President Bush threatened to veto Senator McCain’s Detainee Treatment Act legislation that would have prohibited the use of abuse by any government official directly or indirectly anywhere in the world. Had that happened successfully, I would have been obliged to resign from the administration, but because the veto did not prevail, the act came into place, there was significant progress at the senior levels in the military to oppose the use of torture and return to Geneva, I felt that my continuing the administration was warranted, but there could have come a time where had the administration prevailed on the torture issue, I would have had to resign out of principle.

Madhav Khosla:

Alberto, the lawyers most responsible for authorizing the torture program face little professional accountability. And how do you think that represented something to the next generation of government lawyers? What message did it send to them?

Alberto Mora:

I think that’s a matter that has been profoundly troubling throughout. I don’t understand how anybody responsible for authorizing and implementing torture could be any attorney involved in the process, could not but be sanctioned and possibly disbarred by their home bar association for having done so.

I think what’s happened is the torture program was a failure, a failure in the sense that it was counterproductive. It didn’t produce the intelligence that they hoped and was confident it would produce. The Senate torture report, by the way, I think conclusively demonstrates that as a policy matter, meaning torture did not work as it was advertised by the CIA supporters of the program to have worked in addition to being illegal, bad policy.

But the immunity program that was put in place, the immunity mechanism that the Department of Justice put in place has been strikingly successful. In addition to the fact that the politics of this were such that there probably would not have been a member of Congress that would’ve supported indicting those responsible for the torture program at any time between 2001 to the present time, and that would’ve been compounded by the fact that to have really held everybody who was responsible accountable, it would’ve meant holding the president, vice president, attorney general, national security advisor and a whole raft of lawyers as responsible and that simply would not have happened as a matter of politics in this country.

By the way, when I was in the Pentagon, I understood that there were two issues here. One was the legal standard and then the accountability issue. Those were the two primary legal issues when you talk about something like torture. There’s no law that actually would be worthy of the designation of law unless there’s accountability for its violation. But as I say that, I recognize, and I recognized this in the Pentagon, that for me to have raised the accountability issue at the very start would’ve changed the dynamic of the discussion completely because everybody associated with the program would’ve felt personally threatened and they would’ve been, and the discussion would not have changed as to what does a law provide about torture, but am I going to be liable or are my colleagues going to be liable and what are the political dimensions of this?

So I never raised accountability at first. My interest was ensuring that the international standard and the international definition of torture was upheld. But later, once that standard was more or less upheld, then the accountability issue reared up. And my hope is that as a result of our torture experience, the American public, the American national security leadership understand that were we to go back to a torture regime, there will be accountability next time around. That’s not a given; that’s a hope more than a legal certainty at this point.

But my belief is that the authorization of torture and the inability of our courts and political system, including congressional oversight, to hold those accountable for doing this has facilitated the slide down into the current situation where you see much greater illegalities being conducted in the administration. You see widespread cruelty as a feature of administration policy across a wide variety of fronts with very little appreciation to the fact that any application of cruelty to individuals under whatever guise, whether it be for military intelligence purposes or immigration law enforcement, is contrary to our values. And we seek, at all times, to build a world that is more protective of human dignity than one that is less protective of human dignity. And I think what we’ve seen in the trajectory between the Bush administration and the Trump administration is a slide down towards greater use of cruelty as governmental policy and less accountability for the same reasons that we didn’t hold people accountable in the Bush administration for having violated the law.

Katy Glenn Bass:

Yeah, I think that’s an important observation. So we have one last question for you in our few minutes remaining, which is turning to the work that you did after you left the Pentagon working on international rule of law programs through the American Bar Association. And I’m just wondering, from that vantage point, how do you see the pressures, how do you understand the pressures that are now being applied to lawyers and judges and institutions, like universities and law firms in the United States?

Alberto Mora:

Well, I had thought that my experience in the Bush administration was difficult, but it’s really has no degree of difficulty compared to what lawyers are experiencing now in the Trump administration. I and my colleagues in the JAG Corps would not have lasted half an hour in the Trump administration. Whatever one may say about the Bush administration, one can’t say that they attack lawyers personally the way that the Trump administration is attacking them now. Lawyers who believe, as I do, that the federal government is only authorized to do those things that it’s expressly allowed to do under federal law have not survived in the Trump administration. So you have a situation now is that to the extent that there are still individuals ... And of course, as you know, thousands have resigned from Department of Justice, but all the various different departments. Those individuals are probably not raising legal objections, not really working as lawyers as the way they should be.

So we have an immense threat to the rule of law in this country, an immense threat that comes from various different directions, including the Supreme Court decision Trump v. US that found that fundamentally a president is immune from being held responsible for illegalities while acting [inaudible 00:33:17] presidency. So under that analysis, where Trump to order the use of torture like George W. Bush did, then he most likely would not be held, could not be held liable, could not even be investigated for having committed torture. So my belief, stated starkly, is that the United States is a country that has a strong rule of law tradition, but it is not a country strictly speaking that is a rule-of-law country, simply because presidential immunity and its cascading effects throughout the administration then removes the president, the administration from the full ambit of accountability.

The American Bar Association gave me an extraordinary opportunity. When they selected me to be the director for global programs, it involved the directorship of the Rule of Law Initiative and then oversight of the human rights activities of the Bar Association. The Rule of Law Initiative had started towards the end of the Cold War, 1989, 1990 as the Berlin Wall was falling down, when individual American attorneys started going over to Eastern Europe primarily and volunteering their services to countries, rebuilding human rights, criminal laws, the judiciary prosecution functions, establishing defense bars, really reforming the entire legal systems of the country. The programs were extraordinarily successful in many countries. You go to a place like Georgia, for example, the country of Georgia, and they’ll tell you the American Bar Association was responsible for the Georgian Bar Association and regaining life and autonomy in that country. But the same can be true of many countries in the region and around the world.

I should mention that in my sense, before the growth of authoritarianism in this country and in other countries, like Hungary and other places, I saw as the greatest threat to the rule of law, the growth of corruption in all its senses, lots of countries in which the rule of law is significantly eroded through or extinguished through the use of corruption. I worked extensively in Guatemala, for example, where that was a country where the legislature, the law schools, the bar association, the courts, and even civil society were all under pressure from malign elements that essentially did not want the rule of law to function in their countries. And so what I was focusing on for my time there was how can the American Bar Association and the United States government and other governments, particularly in Europe, work together to help rescue countries that have been captured by malign elements? What’s the process? How do you chunk that mission? Where do you start? What are the forces that need to be applied, the theory?

And that continues to be a challenge. Even if authoritarianism weren’t an overriding challenge, the threat of corruption to legal systems and the rule of law are an immense problem that have been underanalyzed and not given sufficient importance in public policy, foreign policy.

Katy Glenn Bass:

That’s absolutely right. And unfortunately, I think that is increasingly going to be the case here, trying to disentangle the corruption from the breakdown of the rule of law.

Alberto, this has been a really fascinating and thoughtful discussion. Thank you so much for taking the time to come and speak with us. And also, I just want to add a personal note because I was in law school right around the time you had left the Pentagon. I started in 2006, and the fight over the torture program was really formative in both my undergrad and my law school years. It was why I went to law school. And I just want you to know that people like you who did stand up and who said, “This is wrong. This is both immoral, but it’s also unlawful,” you really meant an enormous amount to young law students like me and to the people that I went to school with. So thank you for the work that you did. It’s been a little awestruck talking to you just now. It’s been wonderful. Thank you.

Alberto Mora:

Katy, thank you so much for those kind words. I’m delighted to hear them.

Madhav Khosla:

Thanks so much for being with us, Alberto.

Katy Glenn Bass:

And that’s it for this episode of Lawyering Without Law. Join us next time for a conversation on the history of 20th century authoritarianism with David Deisenhouse and Jan-Werner Müller.

Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote, fact-checking by Harriet Engelke and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show is designed by Jay Volmar. Thanks to Alberto Mora who joined us for this episode.

Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org, that’s knight with a K, and follow us on social media. Bye for now.

In the first 16 months of his second term, Trump has leaned into this strategy even further, including by expelling the Associated Press from the White House press pool because it refused to call the Gulf of Mexico the “Gulf of America,” and by conditioning journalists’ access to the Pentagon on their signing a pledge that no self-respecting journalist would sign.

The First Amendment’s forum doctrine has served as a check on some of this. The courts restored the access of the journalists whom Trump expelled from White House grounds during his first term. The Knight Institute sued Trump over his practice of blocking critics from his Twitter account and won victories in the district court and court of appeals; the Supreme Court granted Trump’s cert petition but deemed it moot when former President Biden was inaugurated in January 2021. More recently, a district court sided with the AP in its challenge to its expulsion from the White House press pool, and another district court sided with The New York Times in its challenge to the policy restricting press access to the Pentagon. These rulings have helped protect the integrity of some of the forums in which speech important to our democracy takes place. They’ve limited the government’s ability to marginalize dissent and criticism, and they’ve impeded the government from transforming open forums into tools of propaganda.

But these lawsuits have also exposed the limitations of First Amendment litigation. There is sometimes uncertainty and disagreement about which spaces should be considered forums under the First Amendment. Enforcing the public forum doctrine in courts can take years, and the courts aren’t always willing or able to restore the status quo ante while litigation proceeds. For example, the Associated Press won a decisive victory in the district court but its access to the White House press pool hasn’t been fully restored, and meanwhile the Trump administration has appealed to the U.S. Court of Appeals for the District of Columbia Circuit. Also, government officials can subvert litigation victories by reshaping their policies without reforming them, which is essentially what the Pentagon did after The New York Times’ successful suit. (The Times recently filed a second complaint.) And while First Amendment doctrine imposes constraints on the government once a forum has been opened to the public, courts have been reluctant to impose on the government any obligation to make forums available in the first place (beyond the narrow category of “traditional” public forums), or to keep them open once they’ve been made available. As a result, news organizations and others have sometimes hesitated to sue over unconstitutional viewpoint discrimination out of fear that a victory might result in the government shutting down the forum altogether, which does sometimes happen.

Congress should step in to protect some of the public forums that are especially important to our democracy. It can do this by requiring the executive branch to maintain these forums and to respect a rule of viewpoint neutrality in regulating access to them. Congress should require the White House and every federal agency to dedicate government facilities to press pools whose membership is determined according to viewpoint-neutral criteria. It should require each agency to have senior officials take questions from the press pool on a regular basis. It should give members of the press pool the right to sue if they are excluded from a press pool on an impermissible basis, and it should provide for expedited judicial consideration of these suits. Congress could extend analogous statutory protection to public forums created by government officials’ and agencies’ social media accounts.

Congress has the authority to impose these mandates. Through the Freedom of Information Act and the Administrative Procedure Act—to take two of the most obvious examples—Congress has already mandated that the executive branch comply with rules meant to promote government transparency and accountability and an informed, democratically empowered public. The constitutionality of these statutes is well-settled. The mandates we have in mind would serve the same purposes and be predicated on the same congressional powers. Congress’s enumerated powers relating to the military would provide an additional basis for imposing these kinds of mandates on the Pentagon and the intelligence agencies. Article IV’s Property Clause would provide an additional basis for regulating social media accounts used by executive officials as extensions of their offices.

We think a requirement that agency officials take questions from statutorily mandated press pools would be on solid constitutional footing, too. Many provisions of federal law require executive officials to document their activities, prepare reports for Congress, and make various kinds of records available to the public. FOIA requires the government to disclose records in response to requests from the public—and that statute’s constitutionality is no longer seriously contested even by those who take the broadest view of executive power. Notably, FOIA requires the executive to share even records it would prefer not to share, whereas our proposed mandates would leave it to the executive to decide what to say in statutorily mandated forums. In that sense, at least, our proposed mandates are less intrusive than FOIA is.

Congress has the authority to impose these kinds of mandates on White House officials as well. It has already imposed record-keeping requirements on the president—that’s what the Presidential Records Act is all about—and those requirements are constitutional, as Judge Bates explained just a few weeks ago, writing “While the presidency is a singularly important institution, that gravity does not free it from modest constraint. Quite the opposite.” In reaffirming the constitutionality of the Presidential Records Act, Judge Bates observed that presidents had complied with the Act “without complaint” for 50 years. The White House press pool has an even longer history, and for more than 40 years its membership has been determined by the press itself, through the White House Correspondents’ Association. Article II should not be construed to bar Congress from requiring the president to respect and sustain an institution that plainly serves democratic interests and that presidents have respected and sustained “without complaint” for decades.

First Amendment doctrine isn’t enough, on its own, to prevent an administration that is committed to distorting expressive spaces that are important to our democracy from realizing its ambitions. We need legislation, too, including the kinds of mandates we describe here.

The following can be attributed to Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University:

“Judge Cannon’s justifications for permanently suppressing the Special Counsel’s report don’t withstand scrutiny. The report is a government record of profound public importance that must be released. The public has the right to see this report under the First Amendment, common law, and Freedom of Information Act. It’s that simple.”

Read today’s brief here.

Read more about the case here.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org

Now imagine Thaler turns his Creativity Machine to a different goal: electioneering. He abstractly instructs the Machine to autonomously generate, post, and A/B-test thousands of political attack messages across social platforms, optimizing for viral engagement. Thaler only sets a high-level goal to “take down all politicians who want to regulate AI” and the agentic system does the rest: including deciding who to target, what words, images, and videos to post, and which publications to select. A state legislature, alarmed at the scale of what’s coming, bans autonomous AI electioneering. Thaler sues again, this time claiming his Creativity Machine’s outputs are protected speech.

The two cases involve different legal doctrines. But they share a threshold question: When should the law protect machine-generated outputs that lack any meaningful human expressive contribution? Copyright law has spent nearly a decade working out an answer. First Amendment law has not.4 4. For more than a decade, scholars have debated various aspects of how the First Amendment should or should not address algorithmic/AI-generated content. See, e.g., Mike Ananny, Probably Speech, Maybe Free: Toward a Probabilistic Understanding of Online Expression and Platform Governance, Knight First Amend. Inst. (Aug. 21, 2019); Mackenzie Austin & Max Levy, Speech Certainty: Algorithmic Speech and the Limits of the First Amendment, 77 Stan. L. Rev. 1 (2025); Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation, 51 U.C. Davis L. Rev. 1149 (2018); Derek E. Bambauer & Mihai Surdeanu, Authorbots, 3 J. Free Speech L. 375 (2023); Stuart Minor Benjamin, Algorithms and Speech, 161 U. Pa. L. Rev. 1445 (2013); Dan L. Burk, Asemic Defamation, or, the Death of the AI Speaker, 22 First Amend. L. Rev. 189 (2024); James Grimmelmann, Speech Engines, 98 Minn. L. Rev. 868 (2014); Margot Kaminski, Authorship, Disrupted: AI Authors in Copyright and First Amendment Law, 51 U.C. Davis L. Rev. 589 (2017); Margot E. Kaminski & Meg Leta Jones, Constructing AI Speech, 133 Yale L.J.F. 1212 (2024); Madeline Lamo & Ryan Calo, Regulating Bot , 66 UCLA L. Rev. 988 (2019); Toni M. Massaro, Helen Norton & Margot E. Kaminski, Siri-ously 2.0: What Artificial Intelligence Reveals About the First Amendment, 101 Minn. L. Rev. 2481 (2017); Peter Salib, AI Outputs Are Not Protected Speech, 102 Wash. U. L. Rev. 83 (2024); Eugene Volokh, First Amendment Limits on AI Liability, Lawfare (Sept. 27, 2024); Eugene Volokh & Donald M. Falk, First Amendment Protection for Search Engine Search Results, 8 J.L. Econ. & Pol'y 883 (2012); Eugene Volokh, Mark A. Lemley & Peter Henderson, Freedom of Speech and AI Output, 3 J. Free Speech L. 651 (2023); Tim Wu, Is the First Amendment Obsolete?, Knight First Amend. Inst. (Sept. 1, 2017); Tim Wu, Machine Speech, 161 U. Pa. L. Rev. 1495 (2013). Could the Copyright Office’s approach to machine authorship offer a model for First Amendment doctrine, one that reins in agentic AI outputs and slop farms without chilling legitimate AI-assisted expression for humans?

Historically, the legal category of speech has never been stable. As Jennifer Petersen has documented, it has been actively remade with every new communication technology, from silent film to radio to computer code.5 5. See Jennifer Petersen, How Machines Came to Speak: Media Technologies and Freedom of Speech (Duke University Press 2022). Across those shifts, speech remained nominally tethered to human agency, but in an increasingly attenuated sense. Petersen calls this a move toward a “posthuman conception of speech,” where messages rather than persons become the locus of legal protection. That approach has already expanded corporate speech rights in ways many find troubling. Generative AI pushes the logic even further and leaves First Amendment doctrine without a clear account of who, if anyone, is speaking.

The First Amendment has generally dealt with human beings generating acts of protected expression.6 6. See Massaro et al., supra note 5 at 2487-90 (observing that First Amendment theory has historically presumed human speakers). Landmark cases from the Vietnam-era jacket in Cohen v. California to the civil rights defamation case in New York Times Co. v. Sullivan to the Klan’s cross-burning in Brandenburg v. Ohio, all centered on concerns about human choices to say specific things.7 7. See Cohen v. California, 403 U.S. 15, 16 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 256 (1964); Brandenburg v. Ohio, 395 U.S. 444, 445 (1969) (per curiam); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 568 (1995). Even the corporate speech and right-to-listen cases, from Boston v. Bellotti to Citizens United v. the FEC and Martin v. City of Struthers through Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council to Sorrell v. IMS Health Inc., involved corporations as vehicles for human expressive decisions, with human audiences who were interested in listening to human speakers.8 8. See First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 777 (1978) (grounding corporate speech rights in the value of the speech to listeners and to "discussion, debate, and the dissemination of information and ideas"); Citizens United v. FEC, 558 U.S. 310, 349 (2010) (extending corporate speech protection on the rationale that "[t]he First Amendment does not allow political speech restrictions based on a speaker's corporate identity"); see also Moody v. NetChoice, LLC, 603 U.S. 707, 744 (2024) (Barrett, J., concurring) ("Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves."); Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights (2018) (tracing the historical development of corporate constitutional rights as derivative of the rights of the human beings who compose corporations). For the right-to-listen cases, see e.g., Martin v. City of Struthers, 319 U.S. 141 (1943); Lamont v. Postmaster Gen., 381 U.S. 301 (1965); Stanley v. Georgia, 394 U.S. 557 (1969); Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976); Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).

That premise is now under pressure. Generative AI produces content at scale that is increasingly disarticulated from human involvement.9 9. See, e.g., Tiffany Hsu, Hundreds of Fake Pro-Trump Avatars Emerge on Social Media, N.Y. Times (Apr. 17, 2026), https://www.nytimes.com/2026/04/17/business/media/artificial-intelligence-trump-social-media.html; Emanuel Maiberg, An AI Agent Was Banned from Creating Wikipedia Articles, Then Wrote Angry Blogs About Being Banned, 404 Media (Mar. 30, 2026), https://www.404media.co/an-ai-agent-was-banned-from-creating-wikipedia-articles-then-wrote-angry-blogs-about-being-banned/. Agentic systems coordinate tasks across platforms with minimal oversight.10 10. See Ardi Janjeva, Carolyn Ashurst & Rick Hennessy, Agentic AI in the Wild: Lessons from Moltbook and OpenClaw, CETaS Expert Analysis (Feb. 2026), https://cetas.turing.ac.uk/publications/agentic-ai-wild-lessons-moltbook-and-openclaw; Kai Nicol-Schwarz, From Clawdbot to Moltbot to OpenClaw: Meet the AI Agent Generating Buzz and Fear Globally, CNBC (Feb. 2, 2026), https://www.cnbc.com/2026/02/02/openclaw-open-source-ai-agent-rise-controversy-clawdbot-moltbot-moltbook.html; Cade Metz, A Social Network for A.I. Bots Only. No Humans Allowed, N.Y. Times (Feb. 2, 2026), https://www.nytimes.com/2026/02/02/technology/moltbook-ai-social-media.html. AI slop, or mass-produced synthetic content, is now the majority of new material posted to the open web.11 11. See Kate Crawford, Eating the Future: The Metabolic Logic of AI Slop, E-flux Journal (Sept. 2025), https://www.e-flux.com/architecture/intensification/6782975/eating-the-future-the-metabolic-logic-of-ai-slop. Aisha Down, More Than 20% of Videos Shown to New YouTube Users Are 'AI Slop', Study Finds, Guardian (Dec. 27, 2025), https://www.theguardian.com/technology/2025/dec/27/more-than-20-of-videos-shown-to-new-youtube-users-are-ai-slop-study-finds; Jason Miklian & Kristian Hoelscher, The Web Is Awash in AI Slop. Real Content Is for Subscribers Only, and Democracy Suffers, L.A. Times (Oct. 23, 2025), https://www.latimes.com/opinion/story/2025-10-23/ai-slop-democracy-paid-internet-content; Jonas Dolezal et al., The Impact of AI-Generated Text on the Internet, https://ai-on-the-internet.github.io (last visited Apr. 25, 2026); see also Joseph Cox, Google News Is Boosting Garbage AI-Generated Articles, 404 Media (Jan. 18, 2024), https://www.404media.co/google-news-is-boosting-garbage-ai-generated-articles/; Emanuel Maiberg, AI-Generated Slop Is Already in Your Public Library, 404 Media (Feb. 4, 2025), https://www.404media.co/ai-generated-slop-is-already-in-your-public-library-3/. If legislatures try to regulate this in the typical domains of electioneering, consumer protection, and defamation, they will likely face a wave of First Amendment challenges from AI developers and operators claiming their machines’ outputs are protected speech.12 12. See, e.g., Litigation Center, NetChoice, https://netchoice.org/litigation/ (last visited Apr. 25, 2026) (cataloguing more than twenty NetChoice lawsuits challenging state technology regulations); see Garcia v. Character Techs., Inc., No. 6:24-cv-01903; see also Exec. Order No. 14,365, Ensuring a National Policy Framework for Artificial Intelligence, 90 Fed. Reg. 58,499 (Dec. 11, 2025) (targeting litigation against state AI regulations under various theories including violations of the First Amendment). Call it slopigation: endlessly scaling litigation over AI content that no human directly expressed.

Without a threshold test asking whether any inherently human expressive contribution is present, courts have no principled way to sort protected speech from autonomous machine outputs. Courts would be mired in epistemologically complex and administratively unmanageable questions about whether agentic AI systems can be said to have viewpoints, and if so, whose they are. Worse, it could threaten to eliminate many forms of AI regulation.13 13. See infra notes 41-44 and accompanying text.

So what could be learned from the copyright approach?14 14. Both Margot Kaminski and Peter Salib have raised the potential connection between the authorial analyses in First Amendment and copyright law in works that predated Thaler. See Kaminski, Authorship, Disrupted, supra note 5 and Salib, supra note 5, at 125 n. 221. When confronted with a flood of AI-generated material, the Copyright Office developed a two-part threshold test.15 15. U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (Mar. 16, 2023) (“Guidance”), https://www.copyright.gov/ai/ai_policy_guidance.pdf; U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (2025) (“Report”), https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf. The first factor evaluates the amount and type of human creative contribution. Here, the Copyright Office drew from a famous case of an 1882 photo shoot of Oscar Wilde, where Napoleon Sarony posed Wilde on a couch, dressed in dark velvet and silk stockings. A lithographic company later printed the image on trade cards without permission, claiming there was no copyright protection because the “author” of the image was a machine—the camera—not the human taking the photograph. The Supreme Court disagreed. Sarony had posed his subject “so as to present graceful outlines” and selected “costume, draperies, and other accessories.”16 16. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-60 (1884). A human who shapes a work as “the production of his own genius or intellect” is an author, while one who merely describes to a system what the work should do or look like is not.17 17. Report at 9 (quoting Burrow-Giles, 111 U.S. at 57-60 and citing Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1497 (D.C. Cir. 1988) (holding organization that provided detailed suggestions and directions to artist was not joint author) and Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132, 135-36 (3d Cir. 1991) (printer’s work did not rise to level of authorship because client expressly directed it on how to rescale and print a collection of maps in specific detail so that the final product “needed only simple transcription to achieve final tangible form.”)).

The second factor focuses on output predictability. The Copyright Office distinguishes tools that extend a human’s creative choices from systems that generate outputs the human could not have predicted from her input.18 18. Report at 19 (“The gaps between prompts and resulting outputs demonstrate that the user lacks control over the conversion of their ideas into fixed expression, and the system is largely responsible for determining the expressive elements in the output. In other words, prompts may reflect a user's mental conception or idea, but they do not control the way that idea is expressed.”), 20 (“The fact that identical prompts can generate multiple different outputs further indicates a lack of human control.”). A Photoshop paintbrush extends a human’s choice predictably. Generative AI produces outputs the human couldn’t have anticipated from her prompt. Predictability matters because it tracks the locus of expressive contribution: The more the output predictably flows from human choices, the more the human is the author. If the output is the system’s own unpredictable recombination, there’s no human authorship.19 19. Guidance at 4 (“For example, if a user instructs a text-generating technology to ‘write a poem about copyright law in the style of William Shakespeare,’ she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style. But the technology will decide the rhyming pattern, the words in each line, and the structure of the text. When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.”)

How would these factors translate to a First Amendment context?20 20. To be clear, this proposal is not an attempt to conform to the “patently uncovered speech” framing Frederick Schauer defended in response to Genevieve Lakier’s critique of low-value speech doctrine. SeeFrederick Schauer, Out of Range: On Patently Uncovered Speech, 128 Harv. L. Rev. F. 346 (2015) (responding to Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166 (2015)). Schauer argued that some speech is “leagues away from the outer boundaries of plausible First Amendment coverage” and categorically uncovered. Lakier’s broader project, developed across subsequent work, has been skeptical of such categorical exclusions as invented traditions that smuggle value judgments into ostensibly neutral coverage determinations. See, e.g., Genevieve Lakier & Evelyn Douek, The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition, 113 Cal. L. Rev. 143 (2024). This proposal doesn’t treat machine-generated content as a low-value or out-of-range category of speech subject to differential treatment. It identifies a threshold predicate question: whether cognizable human expressive activity occurred at all. If not, then it is not “speech” in a Constitutional sense. Cf. Burk, Asemic Defamation, supra note 5. That is a different inquiry than the one Lakier critiques, and one that her own multi-dimensional approach arguably accommodates. Consider these four scenarios:

• A journalist drafts an op-ed and then uses AI to tighten prose, suggest headlines, and check grammar. She makes express creative contributions and uses the tool predictably. This passes the speaker threshold.
• An artist iterates across hundreds of prompts with unpredictable generative outputs, chooses between them and arranges them into a final composition. Express contribution flows through selection and arrangement rather than initial generation. In this case, only the selection and arrangement pass the speaker threshold.21 21. This parallels a recent copyright decision. See Kate Knibbs, How One Author Pushed the Limits of AI Copyright, Wired (Apr. 17, 2024), https://www.wired.com/story/the-us-copyright-office-loosens-up-a-little-on-ai/.
• A campaign operative deploys a swarm of autonomous agents to generate, post, and optimize thousands of message variants but makes no express contribution to any specific output, and the outputs are unpredictable from her high-level objective. This fails the speaker threshold.
• A “pink-slime” operation publishes hundreds of AI-generated articles per day with nominal human review.22 22. Pink-slime operations are partisan-funded outlets that mimic the form of independent local news while publishing low-cost, automated, or algorithmically generated content advancing undisclosed political or commercial interests. See Andrea Wenzel et al., Tow Ctr. for Digital Journalism, “Pink Slime”: Partisan Journalism and the Future of Local News, Colum. Journalism Rev. (Jan. 26, 2024), https://www.cjr.org/tow_center/pink-slime-partisan-journalism-and-the-future-of-local-news.php. Given the lack of express human contribution, there would be a strong presumption against passing the “speaker” threshold unless the operation can show its reviewers made meaningful editorial choices, such as through editorial selections, arrangements, or other substantive interventions.

This proposed framework doesn’t pretend to resolve the metaphysical question of whether AI outputs “really are” speech. It’s a more modest and tractable inquiry: Where is the human expressive contribution in the machine output, and how predictable was the output given that contribution?

One concern with this approach is that it might chill forms of AI-assisted human expression, particularly for those who lack the resources to litigate. In that case, the framework could include a presumption in favor of speaking. Some cases would be easy to satisfy, such as the journalist using AI to tighten prose. For more borderline cases, there could be a safe harbor. For example, once a speaker shows meaningful human contribution through chatlogs, prompt iterations, draft revisions, or other ordinary byproducts of creative work, a presumption of speaking attaches. Then the burden shifts to the opposing party to show that the human role was too attenuated or pretextual.

The presumption runs the other way for outputs produced at a pace or scale no human could meaningfully oversee, or when it flows entirely from automated, high-level commands. A platform that has trained an automated moderation system on detailed editorial criteria, audits its outputs, and can demonstrate that the system implements predictable expressive choices may rebut the presumption against speaking. This tracks Justice Barrett’s hypothetical in Moody v. NetChoice: AI processes that “implement human beings’ inherently expressive choice” remain protected, while AI processes given vague directives and allowed to run on their own do not.23 23. Moody v. NetChoice, LLC, 603 U.S. 707, 746 (2024) (Barrett, J., concurring) (quoting Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 574 (1995)).

There are three significant complications with the framework I’m suggesting. First, if corporations can invoke the First Amendment, why can’t AI systems? Citizens United and its predecessors might seem to be the logical go-to here.24 24. Citizens United v. FEC, 558 U.S. 310, 342–43, 349 (2010); See also Volokh et al., supra note 5, at 666-70; Benjamin, supra note 5, at 1471–76; Wu, supra note 5, at 1510–14; Kaminski, supra note 5, at 612–18. But the corporate speech cases arguably rested on the implicit premise that corporations aggregate and channel the expressive interests of identifiable human principals: shareholders, directors, officers. One interpretation is that the First Amendment protects the human expressive contribution that flows through the corporation, not the corporate form itself. The corporate form is a vehicle for human decisions and expression, while a swarm of autonomous AI agents is not.

Courts have also consistently declined to extend constitutional protection to non-people, including animals, in part because “unlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman[s] cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.”25 25. See Matter of Nonhuman Rights Project, Inc. v. Breheny, 38 N.Y.3d 555 (2022) (denying a petition for writ of habeas corpus seeking to secure the transfer of Happy the elephant, a resident of the Bronx Zoo, to an elephant sanctuary because Happy was not considered a “legal person” under the law despite allegations that Happy was cognitively complex and autonomous enough to qualify); Miles v. City Council of Augusta, 710 F.2d 1542, 1544 n.5 (11th Cir. 1983) (denying First Amendment rights to Blackie the “talking” cat). See also Salib, supra note 5, at 129. This applies equally to machines, which cannot be held legally accountable in and of themselves: only the humans or corporations that own or administer them can.26 26. See Mark A. Lemley & Bryan Casey, Remedies for Robots, 86 U. Chi. L. Rev. 1311 (2019). For example, so far there is little evidence that denying First Amendment protection to machine-authored content will have any chilling effect on the machines themselves. It’s consistent with copyright’s longstanding refusal to extend protection to non-human entities, including spirits, monkeys, and well-designed gardens.27 27. In Naruto v. Slater, the Ninth Circuit denied copyright protection to the infamous “monkey selfie” photograph, holding that absent a clear congressional statement, the default rule should be that non-humans cannot be considered “authors” under the Copyright Act. Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). Courts have also denied copyright protection to a garden designer because “natural forces” were the garden’s primary authors, see Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011), and to otherworldly entities such as spirits, see Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997).

This brings us back to Barrett’s concurrence in Moody v. NetChoice, where she questioned whether AI-based content moderation decisions would be First Amendment-protected.28 28. Moody v. NetChoice, LLC, 603 U.S. 707, 744–47 (2024) (Barrett, J., concurring). AI-based decisions could qualify, she suggested, if they “simply implement human beings’ inherently expressive choice ‘to exclude a message [they] did not like from’ their speech compilation,” for instance “to remove posts promoting a particular political candidate or advocating some position on a public-health issue.”29 29. Id. at 746 (citation omitted). In this, she agrees with the majority’s assumption that the platforms’ curation and recommendation algorithms, presumably written by human programmers and operationalized via human-written Community Guidelines and Standards, were protected because those humans designed the logics and objectives of the programs themselves and oversaw their implementation. See Moody, 603 U.S. at 718 (noting it would be a violation of the First Amendment if a law “prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities.”), at 736 n.5 (explicitly noting that the majority opinion does not address “feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards.”). But she contrasted this with a scenario in which “a platform’s owners hand the reins to an AI tool and ask it simply to remove ‘hateful content,’” and then she asks: “If the AI relies on large language models to determine what is ‘hateful’ and should be removed, has a human being with First Amendment rights made an inherently expressive ‘choice’?”30 30. Id. at 746-47. Such autonomous AI-driven actions may be too removed from “human beings’ constitutionally protected right” to merit protection.31 31. Id. at 747. This parallels the same concept of attenuation that the Copyright Office uses in its test for authorship.

At least one district court has applied Barrett’s approach in rejecting an AI company’s early-stage argument in favor of First Amendment rights for its fully automated chatbot.32 32. See Garcia v. Character Techs., Inc., No. 6:24-cv-01903, slip op. at 31 (M.D. Fla. May 21, 2025) (“[T]he Court is not prepared to hold that Character A.I.'s output is speech.”) (relying on the Barrett concurrence in Moody for its reasoning). This also echoes the Copyright Office’s framework and copyright law’s broader “volitional conduct” doctrine, which acts as a threshold test for liability and denies it where infringing copies are made purely through automated machine activities.33 33. See also Kate Crawford & Jason Schultz, The Work of Copyright Law in the Age of Generative AI, Grey Room, Winter 2024, at 59-60; Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 130–33 (2d Cir. 2008) (holding that automated copying by a remote DVR system did not constitute volitional conduct by the operator); Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1369–70 (N.D. Cal. 1995) (establishing the volitional-conduct requirement for direct copyright liability). But see American Broadcasting Cos. v. Aereo, Inc., 573 U.S. 431 (2014) (limiting the doctrine in the context of compulsory copyright licenses for cable and satellite services).

Second, even without a human speaker, don’t listeners have a right to receive AI-generated content? As this argument goes, even if AI outputs lack a human speaker, human listeners may wish to receive them, and the First Amendment often protects the right to receive information.34 34. See, e.g., Volokh et al., supra note 5, at 658–62 (advancing the listener-rights theory as a basis for First Amendment protection of AI outputs). Cases such as Lamont v. Postmaster General, Virginia Pharmacy, Stanley v. Georgia, and Red Lion Broadcasting Co. v. FCC have often been read to protect access to expression regardless of the speaker’s interest.35 35. Lamont v. Postmaster Gen., 381 U.S. 301, 307–08 (1965); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756–57 (1976); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). But the right-to-listen cases involved human speakers whose communications were being kept from human audiences. Where there’s no human speaker, it becomes more complex. You may enjoy the sound of ear-splitting construction noise or whale songs but that doesn’t necessarily implicate your constitutional rights.36 36. See Burk, supra note 5. At least one court has specifically held that the right-to-listen does not apply to non-human speakers in the case of captive rhesus macaques monkeys, even if they are “willing speakers under the First Amendment” who regularly communicate “through vocalizations, facial expressions, head and limb movements” and other behaviors.37 37. John M. Simpson, PETA's Monkey Speech Claim Fails, Animal L. Devs.: A Duane Morris Blog (Mar. 19, 2026), https://blogs.duanemorris.com/animallawdevelopments/2026/03/19/petas-monkey-speech-claim-fails/. AI outputs derived from training data are not, in the relevant sense, what other people are saying. They are statistical recombinations of past human expression to which listeners generally have direct access through other means.38 38. See Ananny, Probably Speech, Maybe Free, supra note 5 (characterizing algorithmic outputs as statistical recombinations rather than original expression); Salib, supra note 5, at 112–18 (arguing that AI outputs are derived from human-authored training data to which audiences have independent access); See also Crawford and Schultz, The Work of Copyright Law in the Age of Generative AI, supra note 34, at 56, 62–65 (analyzing the relationship between AI outputs and their training corpora).

Murthy v. Missouri closed off the broadest version of this argument. The Court confirmed that generalized listener rights claims unanchored to specific speakers and specific suppressed content don’t establish a concrete First Amendment injury.39 39. Murthy v. Missouri, 603 U.S. 43, 73–76 (2024) (holding that a generalized “right to listen” to all online content “is startlingly broad, as it would grant all … users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech. This Court has ‘never accepted such a boundless theory of standing.’ ”) (quoting Already, LLC v. Nike, Inc., 568 U. S. 85, 99 (2013)). So a general right to listen to AI is unlikely to succeed. Specific humans would have to show their interest in specific AI content just to qualify for court standing to challenge AI regulations. The copyright parallel is instructive here too. The Constitution grounds copyright in promoting the “progress of science and useful arts,” a purpose that might seem to justify protecting machine authorship on listener-benefit grounds.40 40. See U.S. Const, Art I., Sec. 8, Cl. 8. Courts and the Copyright Office have rejected that move. If limiting authorship to humans is constitutionally sufficient to promote the progress of science, it is hard to see why limiting First Amendment protection to human speakers isn’t also constitutionally sufficient.

A third issue concerns data. For years, Sorrell has troubled regulators, information law scholars, and privacy advocates because its language appears to extend First Amendment protection broadly to information flows that eventually lead to recognized speech.41 41. Sorrell v. IMS Health, 564 U.S. 552, 570 (2011) (holding that "the creation and dissemination of information are speech for First Amendment purposes" and striking down a Vermont statute restricting the sale of pharmacy prescriber-identifying data for marketing purposes); see Jane Bambauer, Is Data Speech?, 66 Stan. L. Rev. 57, 62–63 (2014) (analyzing Sorrell's expansive treatment of data as speech); Ashutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 Vt. L. Rev. 855, 856–58 (2012) (arguing that Sorrell threatens privacy regulation); Neil M. Richards, Why Data Privacy Law Is (Mostly) Constitutional, 56 Wm. & Mary L. Rev. 1501, 1503–06 (2015) (cataloguing concerns that Sorrell could be read to invalidate substantial portions of privacy law). Read maximally, Sorrell would protect almost any data eventually used to generate any protected output.42 42. See Jack M. Balkin, Information Fiduciaries and the First Amendment, 49 U.C. Davis L. Rev. 1183, 1208–10 (2016) (warning that an expansive reading of Sorrell would extend First Amendment protection to virtually any flow of information); Genevieve Lakier, The First Amendment's Real Lochner Problem, 87 U. Chi. L. Rev. 1241, 1244–48 (2020) (critiquing the doctrinal trajectory of which Sorrell is part). In the context of agentic AI, this could mean almost any output or activity.

But Sorrell, like the corporate speech and listener rights cases, involved human-generated information: pharmacists’ records of doctors’ decisions, recorded and aggregated for human audiences.43 43. Sorrell, 564 U.S. at 558–59. Extending that logic to machine-generated outputs would leave almost no room for any regulation of online content at all. A better reading, consistent with Barrett’s Moody concurrence, is that First Amendment protection tracks the presence of human expressive choices. It attaches where machine outputs predictably implement those choices and weakens as that connection attenuates.44 44. See Moody, 603 U.S. at 745–47.

Agentic AI risks redrawing the boundaries of speech in ways that favor machines over the individuals who might use them. A threshold anchoring First Amendment protection to human expressive contribution offers one doctrinal mechanism for resisting that tendency. It does not resolve what scrutiny applies once a human speaker is established, how courts should handle hybrid cases in which human and machine contributions are deeply entangled, or whether the line between human cognition and AI assistance will even be locatable in the next decade. Those are questions for another day.

But the courts need a threshold, and soon. The next wave of First Amendment litigation will not look like the last one. It will involve content that no human authored, accounts running on autopilot, and speakers who never spoke. Right now, there is no established approach to handle these cases. The Copyright Office had to develop a threshold test to deal with the influx of AI-generated content, and First Amendment doctrine can do the same. The Amendment protects human speech and association. It was not designed to shelter slop factories or swarms of autonomous agents from democratic regulation.

The bill would create new safeguards against government coercion of private speech intermediaries, including social media platforms, broadcasters, and providers of AI systems. It would establish a federal cause of action against federal agencies and officials who unlawfully coerce or attempt to coerce these intermediaries into suppressing or otherwise taking action with respect to protected speech. It would also establish new transparency measures, including standards for logging covered communications between federal officials and private intermediaries and a public portal for certain covered communications.

“Government officials are free to speak, persuade, inform the public, and enforce the law. What they cannot do is use threats or regulatory power to coerce private intermediaries into suppressing protected speech,” said Nadine Farid Johnson, policy director at the Knight First Amendment Institute. “The JAWBONE Act would create an important mechanism for accountability when government jawboning crosses the constitutional line, and we appreciate the leadership of Senators Cruz and Wyden in introducing this bill.”

The Knight Institute has long warned that government jawboning can distort public discourse and evade meaningful judicial review. In 2024, the Institute launched “Jawboning and the First Amendment,” a research initiative examining how informal government pressure can function as a form of censorship, why it matters, and what legal and policy responses can address its harms. When officials pressure social media platforms, broadcasters, or other intermediaries to suppress protected speech, the burden often falls on the speakers and listeners who are excluded from public discourse or whose access to information is restricted.

At the same time, the Institute has emphasized that not every communication between the government and private intermediaries is coercive. Government officials must remain free to share information, advocate their views, respond to emergencies, and enforce existing law consistent with the First Amendment. The JAWBONE Act recognizes this distinction by targeting coercive efforts to induce content actions while preserving space for lawful government communication.

By creating a private right of action, the bill would be an important step toward ensuring that coercion of private speech intermediaries does not evade public or judicial scrutiny.

Read the overview of the JAWBONE Act here.

In support of Inofuentes’s appeal, the amicus brief addresses the burdens that electronic device searches at the border place on the First Amendment rights to freedom of speech, association, and the press, as well as the Fourth Amendment right to privacy of all travelers. The brief explains that these searches expose vast amounts of expressive, associational, and highly sensitive personal information, including journalists’ newsgathering materials, the identities of confidential sources, travelers’ private messages, social media accounts, political views, and religious associations.

The brief cites documents obtained by the Knight Institute through FOIA litigation in Knight First Amendment Institute v. Department of Homeland Security, and urges the court to hold that the First and Fourth Amendments require the government to have at least probable cause of a border-related offense before conducting a manual or forensic search of an electronic device at the border.

Status: Briefing ongoing; amicus brief filed June 9, 2026.

Case information: United States v. Michael Inofuentes, No. 26-4150 (4th Cir.).