Federal Judge: AFLC Lawsuit Against Michigan AG Challenging Policy to Target Groups Based on SPLC Designations Will Not Be Dismissed

(Kalamazoo, Michigan – January 15, 2020)—Today, the Honorable Paul L. Maloney, a federal judge sitting in the U.S. District Court for the Western District of Michigan, denied motions to dismiss the federal civil rights lawsuit filed by the American Freedom Law Center (AFLC) against Dana Nessel, the Attorney General of Michigan, and Agustin V. Arbulu, the Director of the Michigan Department of Civil Rights.  The lawsuit challenges the defendants’ policy directive to unlawfully target groups in Michigan designated by the radical, leftist Southern Poverty Law Center (SPLC) as “hate” groups.

In their motions to dismiss, Nessel and Arbulu argued that AFLC lacked “standing” and, regardless, the lawsuit failed to allege viable constitutional claims.  Judge Maloney disagreed.

In his ruling on “standing,” Judge Maloney, noting that “AFLC primarily exists to defend the First Amendment rights of conservative Christians and Jews,” stated, in relevant part:

AFLC has established the three elements necessary for standing: injury in fact, causation and redressability. . . .  AFLC has shown . . . that the announcement [of the Policy Directive] itself provides a basis to initiate and maintain this lawsuit.  By implicitly endorsing SPLC’s list of hate groups, which includes AFLC, the announcement of the Policy Directive injured AFLC.  Remember, AFLC asserts its activities are entirely lawful.  By referencing SPLC’s publications as part of the rationale of the Policy Directive, the Press Release created an injury in fact. . . .

* * *

[A]s representatives of the State government, Defendants’ endorsement of the SPLC’s list of hate groups constitutes a concrete and particular reputational injury to AFLC.

* * *

By referencing SPLC’s reports as the justification for the Policy Directive . . . Defendants have placed the State’s imprimatur on SPLC’s list of hate groups in Michigan, which includes AFLC.

* * *

AFLC has established both a harm to its reputation and a credible fear that it will be targeted by the State of Michigan under the Policy Directive.  The Court has already explained how the announcement of the Policy Directive damaged AFLC’s reputation.  As pled, AFLC reasonably fears that it will be a target for investigation and surveillance. . . .  Based on the record at this point in the litigation, the reason AFLC has been swept up in this new initiative is because of its legal, constitutionally-protected activities, activities with which SPLC disagrees.

With regard to AFLC’s substantive claim under the First Amendment (freedom of speech and expressive association), Judge Maloney ruled as follows:

As pled in the complaint, the new policy targets groups like AFLC for disfavored treatment based on AFLC’s political views. AFLC maintains that it does not commit crimes, it engages in civil rights litigation and media campaigns.  AFLC contends that its conservative views are the reason SPLC has deemed it a hate group. . . .  AFLC asserts that the hate group label and the surveillance and investigations have a deterrent effect on its activities and on its rights to free speech and expressive association.  These allegations are sufficient to set forth a plausible claim under the First Amendment.

With regard to AFLC’s substantive claim under the Fourteenth Amendment (equal protection), Judge Maloney ruled as follows:

AFLC has adequately pled the similarly situated element for an equal protection claim. . . .  AFLC pleads that Defendants will surveil and investigate those groups SPLC has identified as hate groups.  A reasonable inference from the allegations is that similarly situated groups (other nonprofit litigation oriented civil rights groups) that are not identified as hate groups by the SPLC will not be surveilled or investigated.

Judge Maloney concluded:

Defendants are not entitled to dismissal of the amended complaint or the claims brought against them.  AFLC has established both standing to bring the claims and the ripeness of those claims based on the announcement of the new Policy Directive.  Defendants’ general disagreement with the scope and nature of their new initiative does not undermine the effect that the announcement of the new policy [has] on AFLC’s reputation and activities, as established by the affidavit submitted by AFLC. And, assuming the allegations in the complaint to be true, AFLC has pled sufficient facts to state claims under the First and Fourteenth Amendments.

AFLC Co-Founder and Senior Counsel Robert Muise commented:

“The judge’s powerful and exceedingly favorable decision should send a strong message to the Michigan Attorney General that she will not be allowed to weaponize her office to target political opponents.  It should also send a strong message to government officials who side with the George Soros-funded and radically partisan SPLC that their day of reckoning is coming.  Know this: We will not allow you to trample on our constitutional rights.”

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.

AFLC Co-Founder and Senior Counsel David Yerushalmi added:

“Every now and then we come across federal judges who truly judge the facts based upon the law.  Admittedly, and sadly, over the years we have witnessed the encroachment of ideological bias into the judicial realm and exponentially so in our current hyper-politicized environment.  Judge Paul Maloney’s opinion stands tall and straight in a room full of opinions bent to satisfy a judge’s political views.  Having practiced extensively in federal and state courts across the nation for nearly four decades, I applaud judicial integrity at every opportunity.  I am applauding now loud and clear.”