In CAIR-Foundation, Inc. v. DeSantis, a decision issued Wednesday by Chief Judge Allen Winsor of the Northern District of Florida, the court surveys Florida’s latest moves targeting certain groups as “domestic terrorist organizations” (DTOs):
Florida’s Legislature recently enacted a new statute empowering state officials to label particular groups as DTOs. Soon afterward, the Governor and Cabinet of Florida designated the plaintiffs, CAIR-Foundation, Inc., and CAIR-Florida, Inc., as DTOs. The designations become effective on November 5, 2026. When that date arrives, the plaintiffs and others who back them will face criminal and civil penalties for specified activities. In this suit, the plaintiffs allege that the new statute (or portions of it) together with the DTO designations infringe their First Amendment freedoms and due process protections….
This marks Florida’s second attempt to designate the plaintiffs as terrorist organizations. Earlier, the Governor issued an executive order branding the plaintiffs as terrorist organizations and barring 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 state executive or cabinet agencies, or from any county or municipality within the state. The district court preliminarily enjoined enforcement of the executive order, concluding it likely violated the First Amendment. The Governor appealed, and the appeal remains pending.
Following the court’s ruling, Florida’s Legislature enacted House Bills 1471 and 1473, which created a DTO designation process. The Florida Department of Law Enforcement later promulgated Emergency Rule 11RER26-8 to implement this legislation. Under the statute and the rule, Florida’s Chief of Domestic Security issued a written notice of intent to designate the plaintiffs as DTOs…. The Governor and Cabinet then conducted 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 or explosives, personnel, or transportation. The term does not include medicine or religious materials.”).}
Several preliminary points deserve attention. First, a substantial portion of the plaintiffs’ claims are not being resolved at this stage. The plaintiffs contend that state officials sought to punish them for prior speech and for their religious beliefs. They assert a First Amendment retaliation claim, but did not move for a preliminary injunction on that basis. They also have a preemption claim that has not yet been addressed….
[Second], the issue before the court at this stage is not whether the plaintiffs are, in fact, terrorist organizations…. The plaintiffs describe their shared mission as rooted in faith: to deepen the public’s understanding of Islam, safeguard civil rights, promote justice, and empower American Muslims. The defendants counter that the plaintiffs operate as fronts for Hamas and the Muslim Brotherhood. Once again, the plaintiffs claim the state misjudged this matter—and that its decision violated their Fourteenth Amendment rights by denying them due process. However, the plaintiffs do not assert any standalone constitutional right to a factually accurate determination about whether they are terrorist organizations.
[Third], designation as a terrorist organization carries real consequences. The plaintiffs have demonstrated that the designations, once effective, will cause substantial disruption, essentially forcing the termination of all Florida operations. Because one plaintiff (CAIR Florida, Inc.) conducts only in Florida, it asserts that it will cease operations entirely. At this stage, based on undisputed statements in the plaintiffs’ affidavits, the court accepts these representations as true.
Nevertheless, while the designations and the enabling statutes may have broad import, the constitutional questions raised by the plaintiffs are comparatively narrow. The claims focus on whether due process was provided before the state made the designations and whether the designations (and the legal consequences they trigger) infringe the plaintiffs’ rights to speech or association….
The court rejected the plaintiffs’ due process claims, largely because state law provides sufficiently robust procedures to determine whether an entity qualifies as a DTO, including the possibility of a state-court appeal—which the plaintiffs did not pursue. The court also rejected their associational rights claims, reasoning in part:
[The] prohibition against “knowingly provid[ing] material support or resources to a designated … domestic terrorist organization” targets the provision of material support to DTOs—not their affiliations. As the defendants argue, Arcara v. Cloud Books, Inc. (1986) is instructive. In that case, the Supreme Court upheld a civil statute that allowed the closure of a business used for prostitution and lewdness—but which was also involved in selling adult books. The closed business argued that the effect of the statutory closure remedy impermissibly burdened its First Amendment-protected bookselling activities. But that argument proved overly broad, since every civil and criminal remedy imposes some conceivable burden on First Amendment-protected activities. Indeed, “one 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 the plaintiffs’ association claim and their content-based speech regulation claim. As explained below, the plaintiffs have shown a likelihood of success on the content-based claim to the extent the statute precludes their continued use of legal counsel under the “expert advice” provision. Arguably, that same restriction would also infringe the plaintiffs’ association rights by preventing their association with counsel.
Nevertheless, the plaintiffs did not focus on legal advice in the portion of their motion addressing their association claim. This is understandable, as the arguments about counsel fit more naturally within the plaintiffs’ content-based [speech restriction] claim than within their broader association claim. For these reasons—and because, practically speaking, the same narrow injunction would issue—I am at this early stage choosing not to further distinguish between these speech and association claims regarding the “expert advice” restriction.}
The court also rejected the argument that DTO status automatically casts an organization as a “criminal gang” subject to various criminal penalties. Yet the court held that the DTO regime’s prohibition on material support was likely unconstitutional, at least as applied to providing material support in the form of legal advice:
[M]ost of what qualifies as “[m]aterial support or resources” under Florida law consists of non-speech items:
“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.
However, the statute explicitly covers speech-related elements, namely the provision of “expert advice,” which encompasses legal advice. The plaintiffs contend this provision would bar them from obtaining their own lawyers’ services to advance this litigation, and the defendants have not demonstrated otherwise.
As the parties note, the emergency rule includes this clause:
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 provision does not foreclose relief here for several reasons. First, it says what the FDLE regards as the case; it does not purport to bind the twenty state attorneys or the Attorney General. Second, the rule does not cover plaintiffs’ provision of support to one another in connection with the litigation—or any other third party or employee who might supply “expert advice” in connection with the litigation. And third, it covers only a narrow range of matters—those connected with litigation “concerning a designation” or related to criminal prosecutions. It would not, for instance, cover the provision of legal services in relation to the ongoing Eleventh Circuit appeal in CAIR I.
Therefore, to the extent that § 775.33(3) restricts interactions with counsel or others providing support for litigation, it regulates speech based on content and is therefore subject to strict scrutiny. Strict scrutiny is a demanding standard, and the defendants have not satisfied it here. The 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 if one accepts that purposivist reading, the law still would not authorize employees or outside counsel to assist in this litigation—or in any litigation other than the statutory appeal that the plaintiffs have not pursued.
In contending that the statute could withstand strict-scrutiny analysis, the defendants invoke the idea that “combating terrorism is a textbook compelling interest.” Even so, they must demonstrate that their restriction—namely, preventing the plaintiffs from using or employing legal counsel for any purpose (aside from perhaps the statutory appeal the plaintiffs have not pursued)—is the least restrictive means to advance that interest. They have not done so. Indeed, their assertion that the statute permits the plaintiffs to use legal counsel to preserve their non-designation status through one form of litigation (the statutory appeal) undermines any suggestion that barring them from using counsel to preserve that status via another form of litigation (this case) is the least restrictive option.
Defendants lean heavily on Holder v. Humanitarian Law Project, which sustained a federal material-support statute against a First Amendment challenge. But in that case, the Court largely based its decision on the federal interest in countering international terrorism. The Court declined to imply that Congress could extend the same material-support prohibition to domestic organizations. It also did not hold that the government could bar these organizations from employing legal counsel to assist them in litigation.
The core conclusion is that the challenged statute, in certain respects, restricts speech on the basis of content. It criminalizes any third party’s—even a lawyer’s—provision of “expert advice” of any kind to the plaintiffs. Consequently, it curtails the plaintiffs’ First Amendment right to receive such speech. See Stanley v. Georgia (1969) (recognizing that the First Amendment protects the right to receive speech as well as the right to speak).
Aside from litigation-related activity, the plaintiffs have not identified specific other kinds of “expert advice” they wish to obtain that § 775.33(3) might criminalize. Thus, I share the defendants’ view that much of the plaintiffs’ argument rests on hypotheticals. There was some discussion at the hearing about “training,” which could also constitute speech the statute might bar, but the plaintiffs have not advanced concrete arguments about training they desire. The remedy at issue reflects the plaintiffs’ litigation choices. Cf. Holder (assessing 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).
Nonetheless, the plaintiffs have shown a likelihood of success on the claim that the “expert advice” restriction, as applied to their procurement of legal services, infringes their First Amendment rights. Regarding all other claims, they have not demonstrated a likelihood of success on the merits….
