10 Major Legal Threats to U.S. Civil Society

From the International Center for Not-For-Profit Law:

A growing array of legal threats makes it harder for nonprofit organizations and activists in the U.S. to do their work. The 2024 elections may further restrict civic space in a deeply polarized country. Below are 10 major legal threats to U.S. civil society that the elections may exacerbate, with potentially far-ranging effects. 

Nonprofits and activists face restrictive new laws and aggressive enforcement. 

1. Certain social services are being criminalized.

Texas’s Attorney General is attempting to shut down a Catholic nonprofit for providing food and shelter to migrants and asylum seekers, claiming that they are “facilitating illegal entry into the United States.” Alabama’s Attorney General has threatened to prosecute organizations and individuals who help women leave the state to receive reproductive care. Georgia and Indiana are among the many states that have recently banned or heavily restricted charitable bail funds, which help financially needy defendants with bail assistance and other pretrial support. Some U.S. cities have banned feeding unhoused people, and law enforcement has fined nonprofits that do not comply.

2. Diversity initiatives face new legal challenges.

Many states have passed new laws banning universities from teaching topics deemed “divisive,” like critical race theory or certain types of gender education. At the end of his term, President Trump signed an Executive Order (which President Biden reversed) barring recipients of federal funds from offering training on racial and gender biases, leading some agencies, contractors, and grantees, including universities, to stop diversity training altogether. In 2023, the Fearless Fund was forced to suspend its grant program for black female entrepreneurs after a conservative group sued over it, alleging that the program violated federal civil rights law. The case, and others like it, raise the prospect that civil rights law and equal protection claims may increasingly be used to target nonprofits and funders who focus on race, gender, or other protected classes.

3. Overbroad “foreign influence” laws are used against nonprofits.

The federal government has ramped up enforcement of the Foreign Agents Registration Act (FARA), a law with sweeping and vague provisions that can cover a range of activities connected to a foreign actor. The breadth of the law provides the Justice Department vast discretion to apply it—discretion they have used to prosecute disfavored voices in the past. In recent years, members of Congress have repeatedly accused prominent U.S. environmental and human rights groups of violating the law, even as Congress has resisted calls to tailor FARA better to prevent abuse.

4. New laws restrict protests.

Since 2017, 21 states have passed new laws that limit individuals’ right to protest and target organizations’ ability to support protesters. Under a new law in Oklahoma, organizations can face felony racketeering charges if they are found to have solicited individuals to engage in an “unlawful assembly.” In Mississippi, an organization that compensates or otherwise helps protesters who block access to a fossil fuel pipeline construction site can now face a fine of up to $100,000. In Tennessee, demonstrators who stage sit-ins or protest encampments on government property, including public university campuses, can now face felony charges. State lawmakers and members of Congress continue to introduce legislation that could further shrink the space for lawful protest, including a bill to make it a federal felony to delay or otherwise affect traffic during a protest. If Donald Trump wins the presidency again, he reportedly plans to invoke the Insurrection Act on his first day in office, allowing him to deploy the military to suppress protests against him. While protesters already face the risk of unjustified police violence, new anti-protest laws may further encourage an overly aggressive law enforcement response to protests around the election and beyond.

5. Domestic terrorism and other excessive charges are brought against activists and organizers.

In Georgia, dozens of protesters who oppose a law enforcement training facility dubbed “Cop City” are facing state felony racketeering and domestic terrorism charges. Student activists have been accused of violating laws that ban giving “material support” to terrorists in the context of advocacy for Palestinian human rights. Overbroad terrorism laws in 32 states and D.C. create a particular danger of abuse by state and local law enforcement. At the federal level, the FBI has characterized social movements, from Black Lives Matter to the campaign against the Keystone XL oil pipeline, as “terrorist” or “domestic extremist” threats and used expansive federal surveillance powers to spy on them.

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Conclusion

While these legal threats may vary from state to state and across issue areas, they affect a broad cross-section of civil society. A successful response will require diverse initiatives, across sectors and the country. These could include advocacy efforts, media outreach, litigation, and flexible donor giving to respond to threats as they develop. In the face of these legal threats to the sector, it is more important than ever for people to join together to support their communities and have their voices heard.

 

darryll k. jones