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.

6. Legal changes threaten to erode the nonprofit sector’s integrity and independence.

President Trump issued an Executive Order in 2017 to weaken the Johnson Amendment, which bars 501(c)(3) nonprofit organizations from engaging in political campaigns and other partisan activity. Members of Congress have repeatedly tried to repeal the amendment. Many in the nonprofit sector have argued that repeal would not only lead to more political dark money coming into the sector but also put pressure on nonprofits, particularly those that receive government funding, to explicitly endorse the political party in power, undermining their integrity and eroding public support for the sector.

Nonprofits and activists confront politicized legal attacks at many levels.

7. Congress may conduct more politicized investigations of nonprofit organizations.

The current House of Representatives has launched numerous investigations into prominent nonprofits, including groups working to protect the environment, combat disinformation, and provide social services. Lawmakers have threatened to investigate faith-based groups like Catholic Charities and Lutheran Immigration and Refugee Services for allegedly facilitating illegal immigration by providing food and clothing to migrants. Politicized congressional investigations are costly and time-consuming for their targets and can damage organizations’ reputations with their donors and the public. As successive Congresses have given committee chairs more power to pursue investigations, including allowing them to issue subpoenas unilaterally, we may see increasingly partisan and aggressive congressional scrutiny of nonprofits.

8. Executive branch actions threaten to politicize the nonprofit sector further.

President Trump took steps near the end of his term to undermine civil service job protections—steps which, if repeated, could make the IRS and other agencies that regulate nonprofits more vulnerable to partisan political influence. The Gerald Ford Foundation, for example, reportedly recently changed its programming out of fear of offending a future President Trump and incurring retributive attacks by the IRS. Congressional engagement may also potentially spur executive branch action. In April 2024, the Chair of the House Ways and Means Committee and all of its Republican members wrote to the IRS asking them to investigate whether a U.S. environmental organization and a social movement nonprofit were being operated for exempt purposes, opening the possibility of much more far-ranging IRS inquiries into nonprofits’ operations.

9. States may engage in politically motivated punishment of nonprofits.

In a case now before the Supreme Court, the National Rifle Association alleges that state officials in New York unconstitutionally pressured banks and insurers to cut ties with the NRA because of its political speech. The ACLU, which is representing the NRA, warns that an outcome in New York’s favor would enable states across the country to go after nonprofits based on their politics. Such actions could further fuel a tit-for-tat of retaliation among states. When the Washington, D.C. Attorney General began an investigation in 2023 into a number of conservative nonprofits, for instance, a dozen Republican state Attorney Generals suggested that they would investigate progressive nonprofits if he did not back down.

10. Private litigants continue to use lawsuits to silence their opponents.

Private companies and individuals continue to sue nonprofits, journalists, and others in court when they disagree with their speech. For example, Elon Musk sued a nonprofit that publicly criticized X for enabling hate speech. A law firm is developing a class action lawsuit for monetary damages and injunctive relief over recent pro-Palestine protests that blocked traffic in Washington, D.C. and Chicago. The fossil fuel industry has repeatedly brought lawsuits against environmental groups and activists for their activism, using civil racketeering and other causes of action. Retaliatory lawsuits like these are expensive and time-intensive to defend against.

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.

 

To learn more about ICNL’s work in the U.S., visit our US Program page.

For more information contact: Nick Robinson at nrobinson@icnl.org and Elly Page at epage@icnl.org.