Amicus Brief Defends First Amendment Rights

Checks & Balances is a newsletter of the Society for the Rule of Law Institute.

The Society for the Rule of Law has joined in filing an amicus brief with the U.S. District Court for the District of Minnesota in United States of America v. Sant, et. al., urging the Court to allow for additional discovery into the Justice Department’s use of “National Security Presidential Memorandum-7: Countering Domestic Terrorism and Organized Political Violence” (NSPM-7) in their investigations against the defendants. The defendants—whom DOJ has charged with conspiracy to impede or injure federal officers during the recent Minnesota immigration protests—have requested additional discovery in order to determine the extent to which they have been targeted for their protected First Amendment activity.

Evidence indicates that the Administration has used NSPM-7 in its response to the Minnesota immigration protests and that this directive significantly impacted the prosecution of the Sant defendants. NSPM-7 directs federal agencies, in order to prevent political violence and domestic terrorism, to focus their efforts on entities that exhibit “anti-Americanism,” “anti-capitalism,” or “extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality.” (Read the full text of NSPM-7 here.) The amicus brief aims,

to provide the Court with important background to contextualize the import of the government invoking“National Security Presidential Memorandum-7: Countering Domestic Terrorism and Organized Political Violence (‘NSPM-7’) as its justification for the investigations leading to this prosecution, and to explain why the Court should grant Defendants’ request for additional disclosure that would reveal any viewpoint-based motivations behind this prosecution.

The brief characterizes the use of NSPM-7 as reflecting a broader pattern of federal enforcement action against those who advocate disfavored beliefs.

The administration has targeted the First Amendment expression of protesters and observers, civil society, the free press, universities, and lawyers. The scale of the government’s assault on free expression has not been seen since the Second Red Scare.

In light of this sustained onslaught, the brief argues that the court must enable discovery into whether the use of NSPM-7 has applied this approach against the Sant defendants:

First, NSPM-7 and its implementing directives facially and as implemented target First-Amendment protected viewpoints. It treats left-leaning political viewpoints (e.g., opposition to immigration enforcement, “radical gender ideology,” “anti-Americanism”) as indicia of domestic terrorism. NSPM-7 and this investigation fit a broader, well-documented pattern of the administration using criminal investigations to retaliate against its perceived opponents. Second, the public disclosures reveal that the Department of Homeland Security (“DHS”) weaponized NSPM-7 to surveil core First Amendment activity—infiltrating meetings, monitoring encrypted chats, and secretly seizing years of financial records from unions and nonprofits. This surveillance appears to have been based on disfavored political viewpoints in violation of the First Amendment. Third, because the justification for the investigation in this prosecution rests on NSPM-7 —which treats political ideology as indicia of a proclivity towards violence—and given the government’s broader pattern of misconduct in other cases, Defendants have a strong basis for the additional Rule 16, Brady, and Giglio disclosures they seek. Those disclosures may show the prosecution was driven by political animus.

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Read the full brief here. For press inquiries, please contact info@societyfortheruleoflaw.org.

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