17th July 2026
Yesterday this blog published a post, but it had a borked link to the judgment mentioned. Although this was quickly corrected online, it meant those who only read emails would not have the link.
That judgment of the ages is here – and you really should read it in full.
And my Weekly Constitutional article at Prospect on the case is here.
I should be publishing a fuller post on here on the case soon.
16th June 2026
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Yesterday the Court of Appeal handed Palestine Action a heavy defeat, reversing a favourable High Court decision.
The Court of Appeal decision is here.
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This blog does not support Palestine Action or any other proscribed organisation, but this blog often looks at the use and misuse of terrorism and other coercive laws. And on the face of it, it does look like terrorism law is being misused, at least in respect of the mass arrests of people for merely holding signs expressing support for Palestine Action.
For hundreds, if not thousands, of people are facing criminal sanctions for a speech act: according to the judgment 2,000 have been arrested and “there are currently over 700 cases pending in the criminal courts of England and Wales, and many more at the pre-charge stage”. This would appear to be a ludicrous situation and not a use to which one would expect terrorism law to be put.
(Terrorism law is a special body of law, in addition to the general civil and criminal law of the land, which provides the state with powers, rights, and obligations for the particular purpose of dealing with terrorist threats.)
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On a preliminary reading of the judgment, and having watched (in a boon for the public understanding of law) the Court of Appeal’s decision on YouTube (watch here), these are some preliminary thoughts which this blog may develop further in another post.
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First, this decision is more in accordance with the deferent general policy of the courts on national security than the somewhat surprising High Court decision. In essence, Palestine Action were lucky at first instance and it was perhaps unrealistic to expect that luck to hold before the Court of Appeal.
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Second, the fundamental issue is that the restrictions on free expression (for expressing support for a proscribed organisation) is just one of many aspects of proscription. Proscription of an organisation confers on the state a whole range of powers, of which prohibiting expressions of support is just one. So if a proscription is quashed, then the state loses all these other powers.
This means that if a court holds that a proscription has a disproportionate impact on the free expression rights of individuals there is perhaps nothing a court can really do but quash the proscription for other purposes too. A court will be hesitant to do this.
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Third, if a court can somehow decide that free expression rights are not being disproportionately interfered with, it can avoid quashing the proscription. Here the Court of Appeal stated: “That said, however, as a matter of law, the Proscription Decision will not prevent public expressions of support for the Palestinian cause or opposition to Israel and to the Israeli Defence Force, or demonstrations targeted at Elbit.”
And so the Court of Appeal found that the impact on free expression of the proscription was not disproportionate. The problem was avoided.
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And this leads to the fourth point.
The real problem here is that section 12(1A) of the Terrorism Act 2000 (which was only added in 2019) should not be in the Terrorism Act at all.
This prohibition on simply expressing an opinion is, of course, problematic generally.
But if a court quashes a proscription because the effects of the section 12(1A) prohibition is disproportionate then all the proscription powers go too.
A court will then strain, as it seems the Court of Appeal did here, to find that the proscription does not have a disproportionate effect.
From time to time a court, such as the High Court at first instance in this case, will quash such a proscription decision for its disproportionate effects on free expression, but such a quashing order is unlikely to survive appeal.
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Fifth, this appeal decision looks balanced in form (with lots of consideration of opposing factors) but in substance it seems fairly appeal-proof.
(And the current Supreme Court is also not likely to go against the government on national security.)
The Court of Appeal had what was a ‘strong’ bench, with the Chief Justice, the Master of the Rolls, the Vice President of the Court of Appeal Criminal Division, and two other senior appeal judges. Usually an appeal bench is of three judges, but here it is of five, and they were unanimous.
Unless this case goes to Strasbourg then this decision looks like the end of the road.
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And finally, the Court of Appeal in this case made, in passing, some ill-advised historical generalisations about the Suffragettes and other groups.
This historical dabbling will rile anyone with the relevant knowledge of history, and it should have been avoided by the judges, unless it was relevant to a question they had to decide. But to make such points for the purpose of illustration simply made the judges seem historically illiterate. The judges may well come to regret making those points.
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2nd June 2026
In a significant development the court has now re-opened the litigation which had ended in the supposed ‘settlement’ of a slush fund for President Trump’s political supporters.
You may recall that this blog has previously covered this extraordinary case.
The story so far in essence:
– Trump (and his son and company) brought a largely contrived case against his own government for inflated damages of $10 billion;
– the court rightly doubted that this was an actual dispute between the parties, and so required further submissions on jurisdiction;
– just before the deadline for those submissions, Trump and his co-plaintiffs pulled their claim, leading the court to formally end the case;
– there was then a supposed “settlement” between the parties but without any court recognition which purported to set up a $1.776 billion slush fund and also to grant legal immunity for Trump and others;
– but this ‘settlement’ has been challenged by former Capitol police and also by a group of former federal judges.
Well, the action brought by the group of former federal judges has actually gained some traction.
The judge has now re-opened the case.
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Here is the online docket, and sometimes dockets are a form of poetry.
You can see on 18 May 2026 the case was closed, and then on 27-29 there was an application and then an Order to re-open the case.
You may recall from an earlier post that the former judges are attacking the ‘settlement’ from the perspective that there was an abuse of process in pulling the case and then purporting to settle it.
The judge now has re-opened the case, and she is now asking for even more submissions from the parties.
This places the parties in a far worse position than they were on the eve of the case being pulled. And here there seems to be no way out for the parties by trying to pull and ‘settle’ the case again. They have to come up with the submissions, else presumably the the case will be struck out.
You will see that those challenging the ‘settlement’ can, in turn, make submissions in reply.
This is a huge set-back for the parties setting up this slush-fund on the back of a ‘settlement’. If the case is struck out, there is nothing to settle, and so there cannot be any kind of ‘settlement’.
The rug is being pulled.
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There is so, so much wrong with this case, from every angle. It is like an implausible exam question for law students. This is not what litigation is for and this is not what settlements are for.
But at least now there is a chance for the court to self-correct the excesses of the parties, for if the case is struck out there cannot be a ‘settlement’ – either recognised by the court or otherwise.
Let’s keep watching.
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28th May 2026
This blog has previously covered the extraordinary legal suit brought by Donald Trump against his own government and then the extraordinary supposed “settlement” of that law suit.
That “settlement” purported to use a private agreement (not placed before a court) to establish a high-value fund to benefit political allies of the president – including the insurrectionists who attacked the Capitol.
It looked as if the legal side of the case was over, and it was now a matter for politics.
But the legal side is not over.
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There are (at least) two legal challenges to what has happened, from different perspectives. Both are legally interesting, as they attack the problem from different legal angles.
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One challenge is from two police officers who were at the Capitol during the attempted insurrection.
You can read their challenge here.
The police Plaintiffs are applying for orders and other court relief to quash the establishment of the fund – primarily on the basis that the federal government does not have the legal authority to do what it is purporting to do.
This appears to be essentially a public law action against the federal government. It is exactly the right sort of case to bring against public bodies exceeding their powers.
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The other case is far more legally ambitious and imaginative, and it has been brought by a posse of retired federal judges, who are “Movants” (lovely legal word) of a motion for the court itself to re-open the case.
This is also exactly the right challenge to bring – but in respect of what appears to have been the abuse of process which led to the supposed “settlement”.
If the Movants succeed then the court will re-open the case and continue with its inquiry into whether there was a real dispute.
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Some abuses of the law are straightforward, and when they occur they usually lend themselves to an obvious remedy.
But the more extraordinary the abuse, the more any remedy has to be especially fashioned.
Here the police Plaintiffs and the federal judge Movants have worked out two different ways to approach the instant situation – one by attacking the outputs (the setting up of the fund), the other attacking the inputs (the way the supposed litigation ended).
I am not an American lawyer, and so I do not know if either case has merit and/or will have traction. But both are interesting ways to get the courts to weigh back in an utter outrage that had looked as if it had escaped the courts.
May Day, 2026
One thing about fundamental legal principles is that they are rarely expressly feature in litigation – at least not expressly. That is because they are fundamental – they are shared and assumed to apply.
Such principle provide the “rules of the game” and the courts deal with disputes about things the parties do not share in common, like differing views on the facts and on the applicable law in a particular situation.
This is why – at least until fairly recently – constitutional law text books both here and in the United States often did not have many recent cases as precedents or even illustrations of certain fundamental principles. An 1800s case there, a 1700s case here, some vague mention of Magna Carta, and that would be it – for paragraph after paragraph, and chapter after chapter.
But the Brexit-Trump years have changed this. Such is the jolt to the United Kingdom and United States polities that certain hitherto constitutional and legal norms in the background have to the fore. Points which one never expected to be the subject of a practical case now fall for judicial determination.
And in the United States we have a case which goes to the very heart of any litigation system, with the court having to ask “what actually is a dispute?”.
That case, of course, is the one where Donald Trump is suing the United States Treasury and the Internal Revenue Service.
I have written about this case this week over at Prospect – click here.
Although nominally Trump is doing this (with his son and company) in a personal capacity, and not formally as president, the reality is that the president is suing his own administration – for $10 billion.
And so in reality he wants to negotiate, with himself, and to agree, with himself, for a resolution where the suit is compromised for a high amount of money, in the region one suspects of $10 billion.
It is an extraordinary case, even at a time of many extraordinary cases.
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In one way, Trump has a point: he was legally wronged by the Treasury and IRS. His tax returns were unlawfully leaked. And this is the case even if he, like other presidents, should have voluntarily disclosed his tax returns to the public. There has been a prosecution and a conviction of the leaker.
A follow-on civil case is not thereby surprising, for generally (but not universally) when there is a crime there is also a tort.
(That said, there was once an over-confident law lecturer who insisted that there was a tort for every crime and challenged the class to gainsay him, to which one annoying student offered ‘blasphemy’. Sorry.)
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So if Trump has been civilly wronged, he should in principle be able to bring a case for damages.
But what makes this case problematic is that he currently controls both sides of the litigation.
This is because of his position as head of government, and also because of an executive order which prevents any federal body or employee from putting forward a view of law distinct from the president.
All this means that not only is he effectively litigating with himself, he would also be effectively negotiating with himself for settling that litigation.
(A great deal of civil litigation ends in settlement.)
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There is a legal principle so fundamental that it is sometimes described as one of the very rules of natural justice.
This principle is that a person should not be a judge in their own cause.
Here the application of the principle would be that a person should not settle a legal dispute with themselves. Indeed, one can fairly ask if there is a dispute at all in such circumstances.
And that is what the federal judge has asked in this case.
In this fascinating four-page order judge Kathleen Williams goes back to the very first principles of law to ask whether there is actually a dispute here to be determined.
She did not dismiss the case, but she is now seeking legal argument on the point.
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Given there has been a civil wrong to Trump, there is the question of how his private law rights could be enforced against the government while he is a sitting president.
Perhaps the case should be stayed for the duration of his presidency, without prejudice to any limitation period. Or perhaps independent attorneys should be selected to litigate the case on the parties’ behalf, with Trump blind to their litigation decisions, or there could be some binding independent third-party adjudication.
There are various ways his legal position could be reserved or protected so that he is not simply negotiating a settlement with himself.
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When litigation lawyers are trained they are warned about sham litigation cases where for money laundering or other purposes an artificial dispute is contrived and then “settled” for a huge a mount of cash changing hands.
What is happening in the United States is not a sham case: Trump has a claim.
But there are ways and means of bringing a claim, some less artificial than others, and the federal court in the United States now has to work out a way for Trump’s claim to be addressed while avoiding the spectacle of the president negotiating with his own federal employees for a cash payment of up to $10 billion.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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13th March 2026
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Hello and welcome to The Empty City blog, the new name of which is explained here.
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Let us start with the most basic point about terrorism law.
Terrorism law should be credible and taken seriously.
Terrorism law is a special body of law, in addition to the general laws of the land, conferring special powers and creating special rules in respect of the threat of terrorism.
As such, of all areas of law, it should be taken seriously and it should be credible.
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The United Kingdom never really used to have terrorism law, at least in permanent form.
Instead we had, for example, a succession of temporary Prevention Of Terrorism Acts, of deliberately limited duration, renewed as and when by parliament.
And it was on this improvised legal basis that the United Kingdom dealt with the the terrorism that flowed from the “Troubles” in Northern Ireland, which came to an end to a large extent with the Good Friday Agreement of 1998.
Somehow those threats had been dealt with and a sort of resolution achieved without the need for any permanent terrorism legislation.
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And then something changed.
And after 2000 the United Kingdom, year-on-year, created a body of permanent terrorism law, creating a security state within the state.
This was partly because of 9/11 and what followed – though the 2000 Act received royal assent before that dreadful tragedy.
And it was partly because of (perhaps counter-intuitively) the Human Rights Act 1998, which required all interferences with the fundamental rights of individuals to have an express legal basis. In other words, some of this stuff had been going on before, but there had been no statutory framework, as it had not been needed.
But after 2000, and for whatever reasons, permanent terrorism legislation grew like topsy.
Looking at the titles of the primary legislation, you may think that the “anti-terrorism” and “counter-terrorism” Acts would cancel out the “terrorism” Acts, but: no. The effect is accumulative.
In addition to the eleven Acts listed above from 2000 to 2025, we have had other extensive primary legislation on surveillance and data retention and national security.
According the the legislation website we have also had 163 items of secondary legislation with “terrorism” in the title since 2000.
Huge piles of new legislation on terrorism since 2000.
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But, still, terrorism legislation should be taken seriously and be credible. Even if one can be concerned at the ever-growing extent of terrorism law, it serves – or should serve – an important legal purpose.
Terrorism legislation provides – or should provide – a special body of law for dealing with terrorism which cannot be done with the general law of the land.
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The problem is that recent events have shown that terrorism legislation is not being taken seriously – and it is not being taken seriously by those who should take it seriously: the government, the police, and the public prosecutors.
And this is obvious from how section 13 and related provisions of the Terrorism Act 2000 (as amended) are treated by those with public power.
Here are three examples.
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First, the proscription of Palestine Action by the Home Secretary was been ruled unlawful by the High Court.
(On this, see my posts here and here.)
The details of the High Court judgment show a Home Office that did not take the proscription seriously, imposing the sanction on flimsy or non-existent basis.
Even if the Home Office reverse this ruling on appeal, this is the sort of measure that should not have come anywhere close to a successful legal challenge.
The courts are usually deferent on matters of national security, and the judges were not impressed by Palestine Action, but even the High Court could not buy this proscription.
And this was because the Home Secretary and the Home Office did not take terrorism legislation seriously.
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Second, the botched prosecution of Liam Óg Ó hAnnaidh, the Kneecap rapper, shows the police not taking terrorism legislation seriously.
(See my Prospect post from yesterday here.)
The police did nothing about an alleged incident for six months, even though supposed breaches of terrorism law should presumably be dealt with swiftly and diligently.
And then the police panicked at the six-month deadline for the relevant offence – and royally mucked up because they had not got the relevant consent in time.
From Kneecap to Keystone.
These are the same anti-terrorism officers who, of course, are supposed to be keeping us safe.
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And then we have the public prosecutors in the same case.
When the defendant’s lawyers rightly pointed out that the prosecution was void for want of jurisdiction – because the requisite consent was not in place in time – the Chief Magistrate of England and Wales (no less) threw out the prosecution.
But the public prosecutors could not accept this decision.
Liam Óg Ó hAnnaidh simply had to be prosecuted for the alleged incident, no matter the cost to the public purse, and no matter the effect on settled case law.
The Director of Public Prosecutions resorted to the rarely used appeal by case stated to get the High Court to reverse the decision of the Chief Magistrate of England and Wales.
One would think that given the substantial delays and backlogs in the criminal justice system – some now lasting years – and which are seemingly so bad that the jury system itself may be dismantled – would mean that the Crown Prosecution Service would have better things to do.
But no, Liam Óg Ó hAnnaidh simply had to be prosecuted.
The High Court, however, were not impressed with the appeal.
The High Court pointed out that siding with the Director of Public Prosecutions in this matter would disrupt plain statutory provisions and settled caselaw.
The High Court even went to the extent of stating its “concern” at the “mistake” for which there should be “blame” in a classic passage of judicial understatement (emphasis added):
“It is a matter of concern that a charge which both the DPP and the Attorney General considered met both parts of the Full Code Test for Crown Prosecutors will never now be determined. There was, they decided, a realistic prospect of conviction and the prosecution was in the public interest. We have not investigated the reasons for this failure and nor do we seek to attribute blame. That is not because these circumstances are not worthy of consideration but because they are irrelevant to our decision.”
Ouch.
The Director of Public Prosecutions, of course, should not have wasted their department’s scarce (and valuable) resources on this hopeless appeal. The Crown Prosecution Service should concentrate on putting cases together, not trying to cover its back for when a mistake was made.
By the Director of Public Prosecutions and the Crown Prosecution Service pretending no mistake had been made (with an appeal based on an extraordinarily unconvincing case theory with no basis in any authority), they too showed they did not take the applicable terrorism law seriously.
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By saying terrorism law should be taken seriously one is not denying that there is a purpose to terrorism law.
It is to say that terrorism law should not be taken lightly.
Credibility of any area of law can be fragile, and terrorism law deserves better than recent antics of the Home Office, the police, and the public prosecutors.
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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.
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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
13th February 2026
This morning the High Court handed down its judgment in the Palestine Action proscription challenge.
I wrote a quick commissioned piece at Prospect within a couple of hours of the judgment being handed down – and I just want to add and develop a few thoughts.
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First, the judgment shows the independence of the High Court in two ways.
A ruling against the government by definition indicates the independence of the judiciary from the executive.
(For what it is worth, I thought a decision against the government was possible when it switched from being a single judge to a three judge panel headed by the President of the King’s Bench Division – a “strong bench” – for a strong bench would be more likely to rule against the government on a matter of national security than a single judge. That said one can never “read” any High Court judge(s).)
But the judgment shows the independence of the court in another refreshing way.
For if you look at the judgment it is plain that the court is not impressed by Palestine Action.
It is always heartening to see a court side with a party with which it has little or no sympathy. It means the court has not got carried away with motivated reasoning in favour of the party it wants to win.
The court said bluntly:
“[Palestine Action’s] campaign is intended to close down the operations of a company pursuing a lawful business. The campaign has not been pursued with restraint. The wide range of targets is significant. It lays bare that Palestine Action’s campaign and pursuit of criminal damage is designed to intimidate the persons and businesses targeted so they end their commercial relationships with Elbit. Palestine Action is not engaged in any exercise of persuasion, or at least not the type of persuasion that is consistent with democratic values and the rule of law.”
Anyone coming across that passage early on in a judgment might have expected Palestine Action to have lost the case.
But no.
The court found in favour of Palestine Action anyway.
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Second, it was an impressive legal win – even if the court was not impressed by Palestine Action.
To win any judicial review against the government on a terrorism-related matter is difficult.
And to win any challenge to any statutory instrument (such as the one which proscribed Palestine Action) is difficult, as opposed to challenging a mere exercise of discretion by an official or a minister.
To do both is remarkable.
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Third, the government really only has itself to blame.
Here I mean both the government in general as well as the current administration.
In 2019 the government widened the scope of the relevant Terrorism law to include expressions of support for a proscribed organisation. (Technically this was done by parliament, but at the government’s behest.)
It must have seemed a good, illiberal idea at the time.
But it meant if an organisation was proscribed for one purpose – to target its organisation, membership and fund-raisers – it also criminalised expression of support too.
It became a one-size fits all provision which meant any proscription automatically infringed the right to free expression of those who were not organisers, members or fund-raisers.
This in turn meant that a court – like today – would look at any proscription with anxious scrutiny.
By wanting to prohibit more and more, the government made any proscription more exposed to legal challenge.
It was a very daft move by the then government.
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The government has also only got itself to blame in another way – and here it is the current administration.
It is hard to read the judgment and see the then Home Secretary and her officials as anything other than hapless.
For although legally the High Court decided against the Home Office on two pleaded grounds – in reality the reason the Home Office lost the case was because the proscription was botched.
One gets the sense from the judgment (and from the surrounding news of the time) that those at the Home Office wanted to push terrorism law to its limit – against a group which, even if not peaceful protesters, did not really fit the definition of terrorism – knowing that this would, at a stroke, criminalise not only those involved but anyone who expressed support for the group.
Those at the Home Office knew this was a stretch.
It must have been obvious that the information before them did not substantiate the proscription.
And the court today ruled it was a stretch too far.
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Fourth, the judgment today – in and of itself – does not change anything.
The law is the same today as it was yesterday – and at the time of the various mass arrests for those expressing support of Palestine Action.
The reason for this is that the court has not yet made an Order giving effect to its judgment.
And until and and unless an Order is made the legal positions of all involved stay the same.
This is because judgments – per se – do not normally have any legal effect until they are encapsulated by an Order.
(Orders are the sausages which come out of the judicial sausage factory, in the same way statutes are the sausages which come out of the parliamentary sausage factory.)
The court deliberately has delayed making an Order, and it would seem that the law may stand until and unless the government seeks an appeal.
And so Palestine Action remains a proscribed criminal organisation and expressing support for it remains a criminal offence.
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Finally, the government will no doubt throw everything at the appeal.
But the government threw everything at this hearing – and it still lost.
Perhaps the government will win on appeal.
The judgment today was balanced on both grounds on which the Home Office lost – it may not take much to shift those balances.
But a more sensible government would not appeal.
As I set out back in September 2025, the government is over-reaching with using terrorism law in this case.
But if the government really wants to proscribe Palestine Action it should put a two-clause bill through parliament making it that a proscription of an organisation, its members and fund-raisers does not automatically criminalise expressions of support for that organisation.
If the government keeps over-reaching, it may fall flat again.
And an adverse appeal judgment will be more damaging for the government than this judgment at first instance.
Nothing the Home Office will throw at the appeal will take away the fact that this was a botched proscription based on incomplete material.
The Home Office mucked up.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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12th February 2026
History rhymes.
Sometimes it is the historians that rhyme in how they write their histories; sometimes even it is actually the events themselves that rhyme.
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When President Trump sought this week to bring criminal charges against six members of Congress this seemed to rhyme with when Charles I sought to arrest five members of Parliament (and a oft-forgotten peer) in 1642.
The latter event, which may not have seemed that significant in the hectic rush of events in 1642, as the kingdoms of England, Scotland and Ireland moved further towards what we call the civil war(s) – but it certainly gained symbolic importance later.
It is why even now the door of the House of Commons is slammed shut in the face of the king’s messenger at the state opening of Parliament.
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What the 1642 and the 2026 events have in common are at least two things.
First, the ruler (king/president) believed that targeting a handful of political opponents with the coercive powers of law would serve some useful political purpose.
Second, both the 1642 and 2026 attempts failed.
What the 1642 and the 2026 attempts do not have in common is why they failed.
In 1642, the targeted opponents were able to escape before the arrest attempt.
But in 2026, the targeted opponents were saved by the grand jury that procedurally has to endorse any indictment.
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This blog is a great fan of juries.
Not all juries are the same – in different legal systems (and sometimes within a legal system) juries fulfil different functions.
But one thing juries tend to have in common is that they make decisions which, but for a jury, would be made by someone else.
In essence, juries take key decisions out of the hands of those who may be minded differently.
In England we do not have grand juries deciding on indictments, though that would not be a bad idea.
In England we do have jury trials under frequent attack from government – the current pretext for “reform” is “efficiency”.
But as I aver over at Prospect – CLICK HERE, in a phrase which blog has often used: juries are important not so much for the powers they have, but for the powers they prevent others from having.
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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
22nd November 2025
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Last week President Trump said:
“We’ll sue [the British Broadcasting Corporation] for anywhere between $1bn and $5bn, probably sometime next week.”
That “next week” was this week, and that was the week which was.
There has been no news of any law suit being filed by Trump in Florida or anywhere else. There is not even news of a formal response to the rather good reply which the BBC is reported as having sent.
Perhaps it will be this coming week, or perhaps he has “moved on”.
Who knows.
But there has been a development in the story.
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The Federal Communications Commission (FCC) – the United States counterpart to our Ofcom – has sent the BBC a letter.
You can read the news report here and the FCC has published the letter on their website.
And it is an odd and desperate letter.
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It is odd because, on the face of it, the FCC do not regulate the BBC.
But the FCC make out that they have a concern because the Panorama programme complained of may have been distributed to a US affiliate of the BBC.
You would think that the US media regulator would be able to ascertain whether the programme was broadcast in the US by an affiliate broadcaster. You would think that the FCC would be aware of TV listings and so on.
But no.
The FCC is having to ask a UK broadcaster about what was shown (or not) by the US broadcasters which the FCC regulates.
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And it is desperate because it indicates that Trump and his lawyers do not have any evidence themselves that the programme was broadcast or otherwise distributed in the US.
The sender of the letter, Brendan Carr the head of the FCC, is a close Trump ally – and you may recall his pratfall in seeking to cancel the Jimmy Kimmel show.
There would be no reason for Carr and the FCC to seek to ascertain such evidence if that evidence was already available to Trump and his lawyers.
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When the legal threat to the BBC was published this blog and others pointed out that it contained no evidence whatsoever that the programme was watched in the US. Indeed, a close reading of the letter revealed an attempt to skate over that point.
This failure to provide any evidence meant that the letter was weak, notwithstanding its strident tone and colourful phrasing.
(As a general rule, the more a litigation letter relies on rhetoric, the weaker that letter is.)
A letter such as Trump’s legal threat to the BBC really should not be sent unless the evidence is in place.
But this new FCC letter indicates that there is no such evidence in place, and so there is now a scampering around to get the evidence.
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Perhaps such evidence will come to light.
Perhaps Trump and his lawyers can stand up their claim with this help from the FCC.
Perhaps Trump will sue the BBC.
Perhaps he will be awarded $1bn dollars in damages.
Who knows.
(And I am not an American lawyer.)
But what we can know is what evidence has been placed before us to back up the claims made by Trump and his letters, and there has been no evidence made available of the programme having effect in the US or of any damage having been suffered.
You would have thought Trump would have had attention to this matter.
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14th November 2025
I have done a piece at the New Statesman where I used to be legal correspondent, you can read it here.
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