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April 16, 2009

Individuals, Group Sue DHS Over "Rightwing Extremist" Report

The Thomas Moore Law Center has sued the Department of Homeland Security because of the "Rightwing Extremists" intelligence assessment released last week. The suit is filed on behalf of a pro-life group, an Iraq war veteran, and Michael Savage. All three allege First and Fifth Amendment violations. According to their allegations, the report has a "chilling effect" on protected political speech and subjects them to unequal treatment because of their political beliefs or veteran status. They seek a declaratory judgment, an injunction, and attorney's fees. The fairly short complaint is here (PDF).

Professor Orin Kerr is already making fun of it, calling it a "frivolous" lawsuit. (Attorneys can be sanctioned for filing frivolous suits.) Kerr characterizes the suit:

As I read it, the lawsuit is claiming that the issuance of a government report criticizing certain groups violates the plaintiffs' constitutional rights. But the Constitution doesn't provide a constitutional right to have the government not say things that might be considered criticism. Perhaps the plaintiffs want the Constitution to be radically reinterpreted by activist judges to invent some brand-new constitutional rights?

I can only imagine that he hasn't actually read the report and fell for the lefty drivel trying to explain it away. A copy is linked from here. It doesn't merely criticize individuals or groups. It classifies individuals as susceptible to or aiding in the creation of violent criminals and that classification is based on political beliefs. In particular, the report identifies support for state and local government, the Second Amendment, border security, unborn children, and several other conservative issues as fostering violence. It makes generalized reference to "hate-groups" that, in context, refers to conservatives.

More than that--and this is the kicker--it does not merely focus on identifying, isolating, and preventing violence. That is something we can all agree is the proper job of government and there is, of course, no constitutional protection for committing violent crimes. Rather, the report specifically labels speech, conservative speech, as an activity of extremists. It then goes on to encourage law enforcement and other agencies to report "suspicious or criminal" activity to DHS or the FBI. A plausible explanation is that DHS is surveilling conservative groups and encouraging law enforcement to do the same.

So, no, I don't believe it is a frivolous lawsuit. Perhaps if, as Kerr apparently assumed, the report merely criticized "rightwing" groups and perhaps if it hadn't included a call to action.

This is not to say that it the lawsuit is without its problems. Though it is clearly not frivolous, it may not prevail on the merits. I'm not convinced that the plaintiffs have sufficiently alleged an injury caused by the report. Thus, as regularly seems to be the case around here, the first major hurdle for plaintiffs will be standing.

Bombshell Update: Stick this in your hole and smoke it! The DHS civil rights division (DHS has a civil rights division?) apparently raised concerns about the report. The department decided to issue it before those concerns were resolved. Hmm, the fevered conspiracy-mongering that this was released last week as a preemptive strike at the teaparties doesn't seem as unlikely now.

Discovery is gonna be a bitch.

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posted by Gabriel Malor at 09:38 PM

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