American Freedom Law Center v. Michigan AG

On February 28, 2019, the American Freedom Law Center (AFLC) filed a federal civil rights lawsuit against Dana Nessel, the Attorney General of Michigan, and Agustin V. Arbulu, the Director of the Michigan Department of Civil Rights, challenging their recently announced policy directive to unlawfully target groups in Michigan designated by the radical, leftist Southern Poverty Law Center (SPLC) as “hate” groups.

Nessel and Arbulu publicly announced their new policy on February 22, 2019.

On March 12, 2019, AFLC filed a First Amended Complaint, adding additional allegations, which include a statement posted by Nessel on her Facebook page shortly after the lawsuit was filed.  More specifically, Nessel demonstrated her political bias by stating:

“Only in Trump’s America do you get sued for pledging to prosecute hate crimes and pursue organizations that engage in illegal conduct against minority communities.  I will never back down on my commitment to protect the safety of all Michiganders.  Bring it.”

As the First Amended Complaint notes:

“Nessel’s Facebook post confirms the challenged policy directive, it confirms that pursuant to the challenged policy directive she is ‘pursu[ing] organizations that engage in illegal conduct against minority communities,’ and it confirms that she considers [AFLC] to be one of the ‘organizations that engage[s] in illegal conduct against minority communities.’”

AFLC’s lawsuit was filed in the U.S. District Court for the Western District of Michigan.  It alleges that the challenged policy directive violates AFLC’s fundamental rights protected by the First and Fourteenth Amendments to the U.S. Constitution by unlawfully targeting AFLC for disparate treatment based on AFLC’s political views and the political views of those it represents in court.

AFLC is a national, nonprofit, public interest law firm.  It is recognized by the IRS as a 501(c)(3) organization.  It has offices in Michigan, New York, Arizona, California, and Washington, D.C.  AFLC filed this lawsuit on its own behalf because it is designated by SPLC as one of the “hate” groups operating in Michigan.

The George Soros-funded and radically partisan SPLC has for years dishonestly and falsely labeled and smeared its political opponents as “hate” groups in an effort to marginalize them and the work they do.  AFLC is one of the groups that SPLC falsely maligns as a “hate” group operating in Michigan.

As noted in the lawsuit:

“It is one thing for a radically-partisan private organization like SPLC to express its falsehoods about political opponents.  However, when the Michigan Attorney General and the Director of the Michigan Department of Civil Rights join and officially endorse this partisan attack by lending government resources and thus becoming the government enforcement agency for SPLC’s radical agenda, the protections of the United States Constitution are triggered.”

The lawsuit further states:

“None of SPLC’s reports, specifically including the reports relied upon by Defendants, cite to one example where AFLC has engaged in any criminal activity.  Plaintiff is not a criminal organization—it is a lawful, conservative, public interest law firm that defends conservative Christians and Jews.  SPLC and Defendants object to Plaintiff exercising its First Amendment rights because SPLC and Defendants disagree with Plaintiff’s political viewpoints and the political viewpoints of those it defends in court.”

As noted in the First Amended Complaint:

“AFLC filed an amicus curiae brief in the U.S. Supreme Court on behalf of several national security experts in support of President Trump’s so-called ‘travel ban,’ which the high court upheld as a constitutional exercise of executive power.  This is one example cited by SPLC for why it includes Plaintiff on its ‘hate’ group list.  Indeed, this example is listed by SPLC as one of the ‘Key Moments’ of ‘hate’ in 2018.”

The lawsuit does not seek money damages.  Both Nessel and Arbulu are immune from suit for damages under the Eleventh Amendment.  Rather, the lawsuit is asking the court to declare the policy directive unconstitutional and enjoin its enforcement as applied to AFLC.  AFLC is also seeking attorneys’ fees and costs.

CASE UPDATE (May 14, 2019): Today, we filed our response in opposition to the motions to dismiss filed by the Michigan AG and the Director of the Michigan Department of Civil Rights.  You can read our response here.

CASE UPDATE (July 25, 2019):  On July 11 and again on July 20, we filed supplemental briefs requested by the Court following oral argument on Defendants’ motions to dismiss.  The first brief was focused on testimony provided by the Michigan AG to the Michigan Senate Oversight Committee.  The second brief was focused on testimony provided by the Director of the Michigan Department of Civil Rights to the same committee.

CASE UPDATE (September 30, 2019): We filed a notice of supplemental authority, bringing to the Court’s attention the recent decision in Buck v. Gordon, where the court held that Dana Nessel, the Michigan Attorney General, should not be dismissed from the case because the evidence “supports a strong inference that St. Vincent was targeted based on its religious belief, and that it was Defendant Nessel who targeted it.”

CASE UPDATE (October 10, 2019): The Michigan Attorney General filed a “motion to strike” our notice of supplemental authority.  We filed a full-throated response.

CASE UPDATE (January 15, 2020): The Court denied Defendants’ motions to dismiss.

CASE UPDATE (January 21, 2020): We filed a motion for summary judgment, asking the Court to rule in our favor as a matter of law.

CASE UPDATE (February 16, 2021): We filed a response in opposition to the motions for summary judgment filed by the Attorney General and the Michigan Department of Civil Rights.