Suit filed over Dept. of Homeland Security Memo/”Policy” on Right-wing Extremists:

The Thomas More Law Center has filed suit in the Eastern District of Michigan regarding the infamous Department of Homeland Security “Intelligence Assessment,” Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment. The Assessment states “The information is provided to federal, state, local, and tribal counterterrorism and law enforcement officials so they may effectively deter, prevent, preempt, or respond to terrorist attacks against the United States.”

Critics of the Assessment object to passages such as the following:

Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a
single issue, such as opposition to abortion or immigration….

The possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks….

Proposed imposition of firearms restrictions and weapons bans likely would attract new members into the ranks of rightwing extremist groups, as well as potentially spur some of them to begin planning and training for violence against the government. The high volume of purchases and stockpiling of weapons and ammunition by rightwing extremists in anticipation of restrictions and bans in some parts of the country continue to be a primary concern to law enforcement.

Debates over appropriate immigration levels and enforcement policy generally fall within the realm of protected political speech under the First Amendment, but in some cases, anti-immigration or strident pro-enforcement fervor has been directed against specific groups and has the potential to turn violent. [DK: The implication here seems to be that being against “the vast tide of illegal immigration” is protected by the First Amendment, but being against “the vast tide of illegal immigration by Central Americans” is not, and is characteristic of “right-wing extremism.” Even though, patently, Central Americans are by far the largest groups of illegal aliens currently in the United States.]

Notably, there are passages that recognize that certain behaviors or beliefs are in themselves not proof that a person is a “right wing extremist.” For example:

Both rightwing extremists and law-abiding citizens share a belief that rising crime rates
attributed to a slumping economy make the purchase of legitimate firearms a wise move
at this time.

Weapons rights and gun-control legislation are likely to be hotly contested
subjects of political debate in light of the 2008 Supreme Court’s decision in District of Columbia v. Heller in which the Court reaffirmed an individual’s right to keep and bear arms under the Second Amendment to the U.S. Constitution, but left open to debate the precise contours of that right. Because debates over constitutional rights are intense, and parties on all sides have deeply held, sincere, but vastly divergent beliefs, violent extremists may attempt to co-opt the debate and use the controversy as a radicalization tool.

But even the above sets up a dichotomy between “rightwing extremists and law-abiding citizens.” There is nothing illegal about holding and expounding extremist, irrational, and even hateful political views, whether those views are left-wing extremist or right-wing extremist.

Plaintiffs in the lawsuit are the Center for Bioethical Reform (a group which chacterizes its mission as “graphically exposing the injustice of abortion”); an Iraq War veteran who lives in the Eastern District of Michigan; and Michael Weiner (a talk-show host who uses the on-air name “Michael Savage”).

The suit alleges that the DHS Intelligence Assessment “is designed to deter, prevent, and preempt activities that government officials deem to be in opposition to the policies advanced by the Obama administration. Such activities are considered harmful, dangerous, and a threat to national security. By deterring, preventing, and preempting such activities, federal officials seek to influence domestic public opinion in support of the favored policies of President Obama.”

It is further alleged that the Intelligence Assessment (which plaintiffs characterize as DHS “Rightwing Extremism Policy”) “is a tool of intimidation for federal, state, and local government officials. It provides a basis for government officials to abuse their positions of power to stifle political opinion and opposition. It also provides political adversaries with a basis for making official complaints and allegations against ‘rightwing extremists’ to government officials, thereby empowering the ‘heckler’ with a ‘veto’ over controversial political messages.”

Thus, plaintiffs allege an effort to chill the exercise of their First Amendment rights, and a denial of their Fifth Amendment right to Equal Protection. (Which well-established precedent has declared to be implicit in the Fifth Amendment’s Due Process clause.)

Now, on some websites, comments would consist of ugly arguments between people who love or loathe Michael Savage, or trolling by people claiming, “You only complain about civil liberties infringements when Democrats do them.” But well-informed VC readers know that many VC authors were vocal opponents of what they considered to be civil liberties infringements by the George W. Bush administration, and some of the older VC writers were also critics of alleged civil liberties infringements during the George H.W. Bush administration, and the Reagan administration.

Accordingly, commenters should offer intelligent analysis of whether the Thomas More Center lawsuit can, on its face, survive a motion to dismiss. If so, should the case proceed directly to summary judgement, or is there a need for discovery? Presumably discovery, if permitted, might reveal information about the motives (“design”) of the Assessment’s authors, and the sources on which they relied in forming the Assessment, which says that it is based on open source information. (BTW, the Thomas More Center has also filed a FOIA request for the latter information.)

And yes, it is ironic that Thomas More himself, when he exercised government power, was a staunch persecutor of religious dissenters; he was neither the first nor the last lawyer to better serve the cause of civil liberty when he was out of government favor than when he was in.

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