From CAIR-Foundation, Inc. v. DeSantis Wednesday by Chief Judge Allen Winsor (N.D. Fla.):

The Florida Legislature recently enacted a new law that allows state officials to designate certain groups "domestic terrorist organizations" (DTOs). Soon thereafter, Florida's Governor and Cabinet designated Plaintiffs CAIR-Foundation, Inc., and CAIR-Florida, Inc., as DTOs. The designations take effect on November 5, 2026. At that point, Plaintiffs and others supporting them will be subject to criminal and civil penalties for certain activities. In this action, Plaintiffs contend the new law (or parts of it) and the DTO designations violate their First Amendment freedoms and due process protections….

This is Florida's second effort to designate Plaintiffs as terrorist organizations. Previously, the Governor issued an executive order that designated Plaintiffs as terrorist organizations and prevented them "or 'any person known to have provided material support or resources' to [them] 'from receiving any contract, employment, funds, or other benefit or privilege' from executive or cabinet agencies or from any county or municipality of the state." This court preliminarily enjoined enforcement of the executive order, finding it likely violates the First Amendment. [See this post on that decision. -EV] The Governor appealed, and the appeal remains pending.

After this court's decision, the Florida Legislature enacted HBs 1471 and 1473, which created a DTO designation process. The Florida Department of Law Enforcement later promulgated Emergency Rule 11RER26-8, which implements this legislation. Pursuant to the legislation and rule, Florida's Chief of Domestic Security issued a written notice of intent to designate Plaintiffs as DTOs…. [T]he Governor and Cabinet held a public meeting, at which they approved the designations….

{[U]nder [Fla. Stat.] § 775.33(3), "[a] person who knowingly provides material support or resources to a designated … domestic terrorist organization" commits a first-degree felony. See also Fla. Stat. § 775.33(1)(d) ("'Material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials.").}

A few preliminary points are in order. First, much of Plaintiffs' case is not at issue at this stage. Plaintiffs allege that state officials sought to punish them for their earlier speech and for their religious views. They have a First Amendment retaliation claim, but they did not move for preliminary injunctive relief based on that claim. They also have a preemption claim that is not yet at issue….

[Second], the issue at this stage is not whether Plaintiffs are, in fact, terrorist organizations…. Plaintiffs say "[t]heir shared mission, rooted in faith, is to enhance the public's understanding of Islam, protect civil rights, promote justice, and empower American Muslims." Defendants, on the other hand, say Plaintiffs operate as fronts for Hamas and the Muslim Brotherhood. Again, Plaintiffs claim the State reached the wrong decision on that score—and that it violated their Fourteenth Amendment rights in reaching its decision without providing due process. But Plaintiffs do not assert any standalone constitutional right to a factually correct decision on the question of whether they are terrorist organizations.

[Third], an entity's designation as a terrorist organization is indeed consequential. Plaintiffs have shown that the designations, upon taking effect, will cause significant disruption, essentially leading to a closure of all their Florida operations. Because one Plaintiff (CAIR Florida, Inc.) operates exclusively in Florida, it says it will shut down entirely. At this stage, based on undisputed statements in Plaintiffs' declarations, I accept these representations as true.

But while the designations and the state laws that authorize them may have broad implications, the constitutional issues Plaintiffs present are relatively narrow. The claims ask whether Plaintiffs were afforded due process before the State made the designations and whether the designations (and legal consequences flowing from them) violate Plaintiffs' speech or association rights….

The court rejected plaintiffs' due process claims, largely on the grounds that state law offered enough process for determining whether an entity indeed qualified as a DTO, including "[t]he availability of [a] state-court appeal" (something plaintiffs didn't take advantage of). The court also rejected their right to association claims, reasoning in part:

[The] prohibition against "knowingly provid[ing] material support or resources to a designated … domestic terrorist organization" … targets material support of DTOs—not their associations. As Defendants argue, Arcara v. Cloud Books, Inc. (1986), is instructive. In that case, the Supreme Court upheld enforcement of a civil statute that authorized the forced closure of a business used for prostitution and lewdness—but also used to sell adult books. The closed business argued "that the effect of the statutory closure remedy impermissibly burden[ed] its First Amendment protected bookselling activities." But that "argument prove[d] too much, since every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities." Indeed, "[o]ne liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes," and "a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement." The same principle applies here.

{There is some overlap between Plaintiffs' association claim and their content-based speech regulation claim. As explained below, Plaintiffs have shown a likelihood of success as to the content-based claim to the extent the statute precludes their continued use of legal counsel based on the "expert advice" provision. Arguably, that same restriction would violate Plaintiffs' association rights by precluding their association with counsel.

But Plaintiffs did not focus on legal advice in the section of their motion addressing their association claim. This makes some sense, as the arguments about counsel fit more neatly within Plaintiffs' content-based [speech restriction] claim than their broader association claim. For these reasons—and because, as a practical matter, the same limited injunction would issue—I choose at this preliminary stage not to further explore any distinction between these speech and association claims as to the "expert advice" restriction.}

The court also rejected the argument that DTO status automatically causes an organization to be treated as a "criminal gang" and thus subject to various criminal penalties. But the court held that the DTO regime's material support prohibition was likely unconstitutional, at least as to provision of material support in the form of legal advice:

[M]ost of what constitutes "[m]aterial support or resources" under Florida law is not speech:

"Material support or resources" means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials.

But the law expressly covers things that are speech, namely providing "expert advice," which includes legal advice. Plaintiffs argue this provision would preclude them from receiving their own lawyers' services in furtherance of this litigation, and Defendants have not shown otherwise.

As the parties note, the emergency rule includes this provision:

The Department will not consider there to be cause for prosecution for a violation of section 775.33 or Chapter 874, F.S., based solely on the provision of legal counsel or legal support services to the organization for purposes of representing or providing advice in connection with existing or anticipated litigation concerning a designation or defending against a criminal prosecution.

That does not preclude relief here for several reasons. One, it says what the [Florida Department of Law Enforcement] (FDLE) considers to be the case; it does not purport to bind the twenty State Attorneys or the Attorney General. Two, the rule does not cover Plaintiffs' providing support to each other in connection with the litigation—or any other third party or employee who might provide "expert advice" in connection with the litigation. And three, it purports only to cover limited types of cases—those in connection with litigation "concerning a designation" or related to criminal prosecutions. It would not, for example, cover the provision of legal services in connection with the pending Eleventh Circuit appeal in CAIR I.

Therefore, to the extent § 775.33(3) restricts interactions with counsel or others in support of litigation, it regulates speech based on content and is therefore subject to strict scrutiny. Strict scrutiny is a difficult standard to satisfy, and Defendants have not done so here. Defendants argue in a footnote that "[t]he designation statute creates a scheme of judicial review and thus cannot plausibly be construed to authorize the prosecution of CAIR employees who participate in judicial review." But even assuming that this purposivist interpretation is correct, the law still would not authorize employees or outside counsel to assist in this litigation—or any litigation other than the statutory appeal Plaintiffs have not taken.

In arguing that the law can survive strict-scrutiny review, Defendants say "combatting terrorism is a textbook compelling interest." Even so, Defendants must show that their restriction—here, precluding Plaintiffs from using or employing legal counsel for any purpose (save, perhaps, for the statutory appeal Plaintiffs do not pursue)—is the least restrictive means available to advance that interest. They have not done so. Indeed, their assertion that the law allows Plaintiffs to use legal counsel to preserve their non-designation status through one form of litigation (the statutory appeal) only undermines any suggestion that prohibiting Plaintiffs from using counsel to preserve that status through another form of litigation (this case) is the least restrictive means.

Defendants rely heavily on Holder v. Humanitarian Law Project, which upheld a federal material-support statute against a First Amendment challenge. But in that case, the Court relied in large part on the federal interest in addressing international terrorism. The Court declined to "suggest that Congress could extend the same prohibition on material support … to domestic organizations." It also did not hold that the government could preclude the organizations from employing legal counsel to assist them in the litigation.

The bottom line is that the challenged law does, in some respects, restrict speech based on content. It criminalizes any third party's (including counsel's) providing "expert advice"—of any kind—to Plaintiffs. It thus restricts Plaintiffs' First Amendment right to receive such speech. See Stanley v. Georgia (1969) (noting that the First Amendment protects the right to receive speech just as it protects the right to make speech).

Aside from litigation activity, however, Plaintiffs do not offer specificity as to any other "expert advice" they wish to receive that § 775.33(3) would arguably criminalize. Thus, I agree with Defendants that much of Plaintiffs' argument is hypothetical. There was some discussion at the hearing regarding "training," which also could constitute speech the law would prohibit, but Plaintiffs have not advanced any specific argument regarding training they wish to receive. The relief available is a product of Plaintiffs' litigation choices. Cf. Holder (evaluating "the particular speech plaintiffs propose to undertake" and noting that "future applications of the material-support statute to speech or advocacy [may not] survive First Amendment scrutiny").

Still, Plaintiffs have shown it likely they will succeed in proving the "expert advice" restriction as applied to their receipt of legal services violates their First Amendment rights. As to all other claims, they have not shown a likelihood of success on the merits….

The post Florida Ban on Material Support to "Domestic Terrorist Organizations" Can't Be Applied to Legal Advice to CAIR appeared first on Reason Magazine.