First Amendment retaliation

Arizona Students' Ass'n v. Arizona Bd. of Regents, 824 F.3d 858 (9th Cir. 2016) — three-prong test: (1) protected activity; (2) chilling effect; (3) protected activity was a substantial motivating factor. Burden shifts under Hartman v. Moore, 547 U.S. 250 (2006), to defendant to show it would have taken the action regardless.

Snyder v. Phelps, 562 U.S. 443 (2011), confirms speech on matters of public concern is "at the heart of" First Amendment protection.

Judge Lin found likelihood of success. Defendants did not dispute prong 2; prongs 1 and 3 were supported by Trump's and Hegseth's own contemporaneous statements ("arrogance," "sanctimonious rhetoric," "Silicon Valley ideology," "RADICAL LEFT, WOKE COMPANY") and the Michael Memo's express reliance on Anthropic's "increasingly hostile manner through the press."

Whether the Ninth Circuit will apply the Pickering framework instead (Lin noted in a footnote that the result would be the same under Pickering because the government made no balancing argument).

Whether NRA v. Vullo (2024) further bolsters the result in the government-as-procurer context.

Whether the alternative viewpoint-discrimination theory survives MSJ.