The historical connection to Congressman Mike Lowry is a powerful piece of American history. Standing up against a flag burning bill that had almost universal, bipartisan momentum takes precisely the kind of moral courage John F. Kennedy wrote about in his Pulitzer winning bool: PROFILES IN COURAGE.
Lowry was one of but 3 Congressmen who realized that protecting the Constitution means protecting the rights of people to do things that the majority of society finds completely offensive.
The Supreme Court cases (Texas v. Johnson in 1989 and United States v. Eichman in 1990) actually weren’t unanimous—they were razor-thin 5-4 decisions. What makes them a ray of hope for the Anthropic case, however, is who voted to protect unpopular political speech. Conservative icon Justice Antonin Scalia joined the liberal block specifically because he believed his duty to the text of the First Amendment overrode his personal disgust for flag burners.
Trump’s Weaponization of Anthropic AI Code, Expression, and the Ghosts of the First Amendment
When the Trump administration recently (6-12-26) issued its emergency order forcing Anthropic to pull its newest AI models, Claude Fable 5 and Mythos 5, offline globally, the justification was familiar: National Security. His selected Commerce Department reps argued that because these models (e;g; Claude 5) are highly capable of generating complex software code, allowing foreign nationals to access them constitutes an export of a dangerous cyber-weapon.
But let’s strip away the modern tech jargon. This is an old, authoritarian impulse dressed up in new digital clothes. This is a system of prior restraint—the government suppressing an information tool before it can even be used, under the assumption that someone, somewhere, might use it maliciously.
This moment reminds us of two profound historical parallels that should offer both a warning and a sense of hope.
A Lesson in Bipartisan Panic
In the late 1980s and early 1990s, a wave of intense political fervor swept through Washington. Following a controversial demonstration, Congress rushed to pass the Flag Protection Act of 1989, making it a federal crime to desecrate the American flag. The bill was wildly popular. It felt like the entire country, and almost the entirety of Congress, was in lockstep.
Years later, I hosted a public meeting with Washington State Governor Mike Lowry. Lowry was one of a microscopic handful of Congressmen (3) who had the absolute backbone to vote against that emotional, popular tide. I greatly admired his courage. Standing in front of an angry public to explain that the Constitution protects even the most odious, offensive expressions is the definition of political bravery. He deserved a chapter in Profiles in Courage.
The politicians thought they had won. But the Supreme Court stepped in.
In United States v. Eichman (1990), a narrow 5-4 majority struck down the federal law. Justices like Antonin Scalia—who loathed the act of flag burning personally—voted to protect it anyway. Why? Because they understood a foundational truth: Free speech exists precisely to protect unpopular, provocative, or controversial expression. If we only protect speech that makes the government feel safe and comfortable, the First Amendment is an empty promise.
From Flags to Code
The administration’s current war on AI models relies on the exact same trick the government tried to use against encryption pioneer Phil Zimmermann and his PGP (Pretty Good Privacy) software in the 1990s. Back then, the government classified encryption source code as a “munition”—a weapon—so they could ban its export to foreign nationals.
The federal courts saw right through it. In Bernstein v. United States, the courts established that computer source code is an expressive language, a form of speech protected by the First Amendment.
An advanced AI model like Claude 5.0 is not a missile. It is a dynamic, evolutionary library—a general-purpose language infrastructure used by students, researchers, novelists, and everyday citizens. Labeling a language engine a “weapon” to bypass the Bill of Rights is pure Orwellian Newspeak.
Why This Matters to Every American
By ordering a ban on “all foreign nationals,” the government created an unworkable standard that forced Anthropic to pull the plug on its technology entirely. In doing so, the executive branch didn’t just target foreign residents; they unilaterally stripped millions of American citizens of a tool they rely on for their businesses, their education, and their daily lives.
This isn’t just a corporate dispute between tech billionaires and the White House. This is a direct assault on the 1st Amendment’s protection of speech and the 14th Amendment’s guarantee of equal protection under the law. It injects a toxic level of regulatory instability that could easily trigger a broader panic in the technology markets.
Freedom isn’t free, and it isn’t passive. If the American public sits silently while the government uses “emergency powers” to decide who is allowed to access information based on the passport they hold/nationality, we will ultimatelyly lose the very liberties that define our nation.
Just as the Supreme Court stood up against the overwhelming political panic of the flag-burning laws thirty-five years ago, we must look to the courts to do it again today. We must remind the state that you cannot burn down the digital library just because you are afraid of what someone might read inside.
