The American Freedom Law Center, a conservative public interest law firm based in Ann Arbor, won a round in court on Jan. 15 when motions to dismiss the group’s lawsuit were denied. The group is suing Michigan Attorney General Dana Nessel and Agustin Arbulu, former director of the Michigan Department of Civil Rights, on the grounds of a constitutional rights violation.
The lawsuit began last February when Nessel and Arbulu issued a press release in response to the Southern Poverty Law Center’s annual Hate Group Map identifying active hate groups across the country; the report listed 31 hate groups in Michigan, a 6.5-percent increase as compared to the previous year. The report identifies the Ann Arbor-based AFLC as an anti-Muslim hate group. In response, Nessel and Abulu announced the establishment of a hate crimes unit in the attorney general’s office as well as a database to document incidents of hate and bias.
On March 8, Nessel released an additional press release officially establishing the new hate crimes unit and reaffirming her commitment to protecting all organizations’ rights to freedom of speech. Nessel also said it was her responsibility to take action against possible hate crimes stemming from offensive or bigoted language.
“When a criminal offense is committed against a person or property and it is motivated by an offender’s bias against a particular group, then my office will act,” Nessel said.
The complaint contends that the AFLC is being unfairly targeted by this policy directive based on political views and has suffered injury to its reputation. The group claims the policy directive put forth by Nessel and Arbulu infringes on their right to free speech, protected by the First Amendment, and their rights to expressive association and equal protection of the law, both protected by the 14th Amendment.
Nessel and Arbulu filed separate motions to dismiss, however, District Judge Paul Maloney denied these motions, meaning the lawsuit will move on to the discovery phase.
“Defendants’ general disagreement with the scope and nature of their new initiative does not undermine the effect that the announcement of the new policy on AFLC’s reputation and activities, as established by the affidavit submitted by AFLC,” Maloney wrote in the opinion. “And, assuming the allegations in the complaint to be true, AFLC has pled sufficient facts to state claims under the First and Fourteenth Amendments.”
The SPLC is an Alabama-based, nonprofit legal advocacy organization focusing on civil rights. The group’s oft-cited Intelligence Report identify and track hate groups across the nation, however, the group has faced recent criticism questioning the SPLC’s definitions of hate and extremism and defending some of the groups and individuals targeted by hate group reports.
The SPLC declined to comment at the time of this story, however, the group has published multiple articles regarding the AFLC’s anti-Muslim stance. The Intelligence Report defines “anti-Muslim” hate groups as those which “exhibit extreme hostility toward Muslims … and attribute to (Islam’s) followers an inherent set of negative traits.” In a profile on David Yerushalmi, co-founder and senior counsel of the AFLC, the SPLC outlines Yerushalmi’s history of anti-Muslim activism.
In an article titled “Is the War Against Terror Rational?”, Yerushalmi condemns Islam.
“We must be prepared to fight a full-scale war against all nations and people who advocate, accommodate, or acquiesce to the Islamic world view,” Yerushalmi wrote. “We will never defeat ‘radical Islam’ without defeating Islam itself because they are one and the same.”
The SPLC cites the AFLC’s amicus curiae brief from February 2018 supporting President Trump’s “extreme vetting” travel policy as further evidence of anti-Muslim hate. The analysis of the brief draws attention to misinformation put forth about Sharia, Islamic law.
“Its religiously-laden terms such as ‘Islamic radicalism’ and ‘sharia supremacism’ does little to mask the brief’s anti-Muslim agenda,” the SPLC writes. “It also makes the fundamental mistake of equating sharia with ideological extremism, when in fact it is merely a set of guiding principles to living a moral life set out in the Qur’an and is akin to how halacha is practiced among many religiously-observant Jews.”
The SPLC further denounces the AFLC’s American Laws for American Courts initiative, a legislative model for bills prohibiting foreign laws in American courts, focused specifically on Sharia “law.” The SPLC points out that Sharia is not actually law and that such a protection is already guaranteed by the Constitution. They sayconclude that the ALAC initiative is an attempt to promote unfounded fear, linking anti-Muslim legislative rhetoric to increasing hate crimes against American Muslims.
“Driven by hate groups, the ALAC initiative has created unfounded fear, and has sought to demonize Islam and American Muslims across the nation through legislation and rhetoric,” the SPLC writes.
Robert Muise, AFLC co-founder and senior counsel, said he felt confident about the case’s outcome following this victory.
“In light of the judge’s ruling on that motion to dismiss, I’m quite confident that we’re going to ultimately prevail,” Muise said. “And our ultimate goal is to protect the rights to freedom of speech and right to expressive association, and to prevent government officials from weaponizing their offices for political purposes.”
Law School student Kevin Deutsch said he wasn’t surprised the motions to dismiss were denied.
“The standard for surviving a motion to dismiss is incredibly low,” Deutsch said. “To beat a motion to dismiss, a plaintiff basically just needs to have stated in their initial complaint the elements of each legal claim and facts backing them up. The facts don’t even need to turn out to be true.”
Deutsch explained the discovery will be a long, expensive and resource-intensive process that could last several months. He said he anticipates the defendants will then move to summary judgment.
“On summary judgment, the judge is asked to decide the case without a trial if he feels that there are no facts in legitimate dispute,” Deutsch said. “This will be tougher for the AFLC to overcome, because at that point, the AFLC will need to have a case backed by evidence that a jury could plausibly believe.”
Muise denies allegations of criminal activity. He said the AFLC’s reputation as well as financial contributions have suffered as a result of being designated a hate group by the SPLC, and expressed frustration with government officials legitimizing the report.
“We’ve been fighting the credibility of this … spending a lot of time and resources to launch press releases, to get in the media, to counter the media’s reliance on the Southern Poverty Law Center, because it does harm us,” Muise said. “And now all of a sudden you have the Michigan attorney general, the state’s top law enforcement office, saying, ‘Oh no, this is a legitimate list.’ It’s just raised this to another level … it’s given the state’s endorsement to it, it has dedicated state’s resources to it — this is horrific.”
Nessel and Arbulu’s press release defines a “hate and bias incident” as one which “an action does not rise to the level of a crime or a civil infraction,” including actions protected by the First Amendment. According to the press release, the database initiative is intended to educate the community about such incidents and combat them.
Muise believes this initiative infringes on constitutional rights.
“No attorney general should weaponize their office to go after political opponents and even threaten to go after political opponents, because it obviously has a chilling effect on the right to freedom of speech,” Muise said.
Reporter Angelina Little can be reached at firstname.lastname@example.org