Federal Court Refuses to Dismiss Case Against Southern Poverty Law Center

Some excerpts from a long opinion by Judge Emily Marks (M.D. Ala.) Friday in U.S. v. Southern Poverty Law Center, Inc.:

This dispute concerns the Government’s—specifically, the United States Attorney for the Middle District of Alabama’s—decision to indict the Southern Poverty Law Center. The parties present diametrically opposed accounts of that decision. The SPLC contends that it is being vindictively prosecuted at the behest of various political actors—including the President of the United States—for engaging in speech protected under the First Amendment.

To remedy this alleged constitutional wrong, the SPLC moves for dismissal of the indictment or, in the alternative, discovery into the Government’s prosecutorial motives. The Government opposes the SPLC’s motion in its entirety, asserting that “this indictment was secured based on the law and the facts uncovered during a federal investigation.” The parties’ briefing is, like much of our modern political discourse, heavy on heated rhetoric, better suited for cable news, or a podcast. It emphasizes noise over substance.

After filtering out the noise, the Court is left to decide only whether the Government’s decision to prosecute the SPLC was constitutionally impermissible. On this record, the SPLC is not entitled to discovery or dismissal of the indictment. The SPLC has failed to offer some evidence tending to show animus on the part of the prosecutors involved in bringing this case and that such animus resulted in the prosecution, the showing required for discovery. Because it cannot satisfy that standard, it necessarily fails to satisfy the higher standard that would entitle it to dismissal of the indictment. Accordingly, the SPLC’s motion is due to be denied….

A quick summary of the allegations against the SPLC (see here for more):

In 1971, two lawyers founded the SPLC as a nonprofit organization dedicated “to ensur[ing] the promise of the Civil Rights Movement became a reality for all.” According to the SPLC, part of its mission is to “track[ ] and expose[ ] the existence and activities of hate groups and other domestic extremists.” In pursuit of these “hate groups,” “the SPLC used paid consultants to infiltrate and inform on various white supremacist and other extremist groups.” The Government contends that this “informant program” forms the basis of the SPLC’s criminal liability.

On April 21, 2026, the Government unsealed an eleven-count indictment against the SPLC, charging it with six counts of wire fraud, four counts of false statements to a federally insured bank, and one count of conspiracy to commit concealment money laundering. The superseding indictment, unsealed on June 2, 2026, charges the SPLC with the same eleven counts.

On May 26, 2026, the SPLC moved to dismiss the indictment for vindictive prosecution or, in the alternative, for further discovery and an evidentiary hearing. According to the SPLC, President Donald J. Trump’s administration has launched an all-out assault “on civil rights groups in general” and the SPLC faces charges solely because it “exercis[ed] its First Amendment right to identify, report on, and criticize extremist hate groups.” The SPLC submits that in this case the Government started with a target—the SPLC—and looked for some crime, any crime, to pin on it….

There’s a lot more, but here’s the court’s summary of the legal standards in vindictive prosecution cases:

While prosecutors enjoy broad discretion in deciding whether to bring charges, the Government cannot punish someone simply for exercising his rights. That is to say, the Government cannot punish someone out of “vindictiveness.” “Vindictiveness in this context means the desire to punish a person for exercising his rights.” Accordingly, a criminal defendant can seek to dismiss the indictment against him on the basis that his prosecution is vindictive.

There are two ways that a defendant can succeed on a vindictive prosecution claim. He can show actual vindictiveness, “prov[ing] objectively that the prosecutor’s charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.” “This showing is, of course, exceedingly difficult to make.” To meet this high bar, “a defendant must show, through objective evidence, that (1) the prosecutor acted with genuine animus toward the defendant and (2) the defendant would not have been prosecuted but for that animus.”

Alternatively, a defendant may rely on a presumption of vindictiveness, but “only in cases in which a reasonable likelihood of vindictiveness exists.”

If a defendant cannot satisfy either of these standards, he may nevertheless obtain discovery in support of his claim if he comes forward with “some evidence tending to show the existence of the essential elements of the defense.” In the First Amendment context, a defendant “must offer some evidence tending to show that he would not have been prosecuted but for his protected speech.”

However, even this standard “is a ‘rigorous’ one.” “To obtain discovery, [a defendant] must do more than simply ‘identify a potential motive for prosecutorial animus.'” “He must connect any vindictive animus to those making the challenged charging decisions in his case.” And “to obtain an evidentiary hearing …, ‘the defendant must present facts sufficient to create a reasonable doubt about the constitutionality of a prosecution.'” …

[T]he Supreme Court has limited the application of a presumption to situations involving a specific fact pattern or series of events that would, no matter when or where that pattern or series appeared, necessarily give rise to a “reasonable likelihood of vindictiveness.” See North Carolina v. Pearce (1969) (presumption of vindictiveness exists where a trial judge “imposes a more severe sentence upon a defendant” after he “successfully attacked his first conviction”); Blackledge v. Perry (1974) (applying the same presumption where a prosecutor obtained a felony indictment after the defendant appealed his misdemeanor conviction). That is, a presumption must be “applicable in all cases.” “[A] presumption is warranted only when circumstances warrant it for all cases of the type presented.”

No presumption is called for here. The SPLC relies upon the “pattern of Executive Branch conduct” in this case—that is, the purported opening, closing, and reopening of a “moribund” investigation into the SPLC—as producing the requisite “‘realistic likelihood’ of vindictiveness.” But the Supreme Court has cautioned against presuming vindictiveness based on pretrial conduct. Goodwin (noting that, prior to trial, “the prosecutor’s assessment of the proper extent of prosecution may not have crystallized”)….

Assuming that a presumption of vindictiveness can apply in the pretrial setting, the facts of this case do not warrant one. [The SPLC argues that “] {[A]fter some investigative activity in 2019 or 2020, the Biden administration reviewed the activities of the SPLC’s field program, and despite the acquisition of financial records, interviews of those involved, and even a review by [the] DOJ and the IRS, no charges were brought. Then, as part of President Trump’s specific targeting of civil rights groups and his … officials’ particular focus on the SPLC, a dormant or closed investigation was revived, and the charges were filed.}[“]

As the Government notes, investigations are routinely opened, shut, and opened again for myriad, proper reasons. Indeed, the fact that the closing and reopening of the investigation into the SPLC each corresponds to changes in presidential administrations is susceptible of an innocent explanation just as readily as an improper one, as different administrations routinely have different enforcement priorities. Accordingly, it would be improper to presume vindictiveness merely because an indictment issued after an investigation was reopened, as this would not, standing alone, necessarily mean that “a reasonable likelihood of vindictiveness exists.”

And evidence merely that the defendant is a political foe of the prosecuting administration isn’t enough to show vindictiveness:

Nor does the fact that the SPLC was indicted after engaging in protected activity entitle it to a presumption. It is true that before its indictment, the SPLC extensively criticized the Trump administration. But if that were sufficient to warrant a presumption, then … an entity could effectively immunize itself from prosecution simply by engaging in protected speech, such as criticizing political figures and their policies….

The court’s conclusion:

The question before this Court is not whether the Government should prosecute the SPLC. It is a bedrock principle of constitutional law that the decision to prosecute is entirely within the Executive’s purview. Separation of powers prevents this Court from entering upon or intruding into “the business of prosecution.” The Court is not blind to the fact that this prosecution has generated strong reactions from individuals equally delighted and outraged by the indictment.

But, as the Court noted at the outset, the only question before the Court is a narrow one: Whether the Government’s decision to prosecute the SPLC was constitutionally impermissible. Because the SPLC has not adduced some evidence tending to show the existence of the essential elements of vindictive prosecution, the Court denies the SPLC’s motion in its entirety.

Although the Government is entitled to the presumption of regularity, courts are not forced to turn a blind eye to constitutionally suspect conduct. In the rare case that warrants a closer look, courts can and should order the Government to produce discovery into a prosecutor’s motivations to ensure the defendant’s due process rights are protected.

But this is not the rare case in which such extraordinary relief is appropriate. The SPLC’s submissions stack speculation upon conjecture, relying upon hypothetical links in assumed chains to show prosecutorial vindictiveness. Once again, the standard to receive discovery is a rigorous one that the Court finds has not been met here.

This case typifies modern American discourse. It is unsurprising that the parties’ arguments primarily comprise what has become all too common: ad hominem attacks in the form of press releases, interviews, and social media posts. Opponents of past, current, and future administrations may full-throatedly protest the decisions made by those in power. But our Republic recognizes different venues to vindicate different wrongs; federal courts are not the proper forum for airing political grievances.

For that reason, the doctrine of vindictive prosecution places a heavy burden on the accused, and decades of precedent counsels against its application here. Two things can be true at once: critics are not constitutionally immunized solely because they speak frequently and prosecutorial decisions may be second guessed—if they evince some evidence of animus. Missing here is the requisite objective evidence to show that the United States Attorney’s Office for the Middle District of Alabama (on its own accord or at the direction of others) prosecuted the SPLC for exercising its First Amendment rights.

The SPLC fails to establish some evidence tending to show prosecutorial animus or causation, rendering discovery improper. And because the SPLC cannot establish some evidence of vindictiveness, the Court will not grant the extraordinary relief of dismissing the indictment. The SPLC’s motion is thus denied in full….

Read the full opinion for more.

Kevin P. Davidson, Joel Feil, and Russell Turner Duraski represent the government.