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Michigan anti-abortion rights group loses appeal against Obama administration on extremism report

A Michigan-based anti-abortion group, represented by the Thomas More Law Center in Ann Arbor, lost an appeal before the 6th Circuit in a case filed against Secretary of Homeland Security Janet Napolitano over a report on dangerous right wing extremist groups.

In April, 2009 the Department of Homeland Security released a report entitled Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment. The report was one of many threat assessment reports shared between DHS and state and local law enforcement agencies to keep them apprised of potential dangers to be aware of.

Conservative groups were enraged over the report, claiming that DHS was calling all conservatives potential terrorists and tarring mainstream anti-abortion and anti-immigrant groups as dangerous extremists. But the plaintiffs in this case, the Center for Bioethical Reform, went even further, claiming that this was all part of a conspiracy between the Obama administration and liberal groups to violate their constitutional rights.

According to the Amended Complaint, this is an action “challenging the policy, practice, procedure, and/or custom of Defendants that targets for disfavored treatment those individuals and groups that Defendants deem to be ‘rightwing extremists’ (hereinafter RWE Policy).” Plaintiffs characterize this “policy, practice, procedure, and/or custom” as constituting a “Rightwing Extremist Policy” or “RWE Policy.” Plaintiffs do not define the RWE Policy with any precision or specificity, but allege that the “RWE Policy was created, adopted, implemented, and enforced through a partnership with private organizations that are political adversaries of Plaintiffs,” including the Anti-Defamation League, Southern Poverty Law Center, and the National Abortion Federation.

The fact that the same agency had only three months earlier put out a report on the dangers of left-wing extremist organizations and that this report had actually begun under the Bush administration and was released by a department still headed by a Bush appointee didn’t seem to matter to the plaintiffs.

The district court dismissed the case and the plaintiffs appealed. The 6th Circuit Court of Appeals has now affirmed the lower court ruling, which noted that the plaintiffs had not stated any actual action taken against them that had diminished their rights in any way.

Plaintiffs fail to address affirmative conduct undertaken by the defendants. They fail to allege any time, place, or manner restrictions that Defendants have imposed on their speech. They fail to allege that Defendants taxed or punished their First Amendment activities. They fail to allege that Defendants imposed any prior restraint on their protected speech. They fail to allege any form of retaliation by Defendants for their exercise of protected speech on identified occasions.

The appeals court agreed, saying that the complaint “contains numerous irrelevant allegations, and those that are relevant fail to plausibly allege that Defendants have violated Plaintiffs’ constitutional rights.” Read the full ruling here.

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