From CAIR-Foundation, Inc. v. DeSantis, decided yesterday by Judge Mark Walker (N.D. Fla.); the analysis seems correct to me:
The question before this Court is whether the Governor can, in a non-emergency situation, unilaterally designate one of the largest Muslim civil rights groups in America as a “terrorist organization” and withhold government benefits from anyone providing material support or resources to the group. This Court finds he cannot…. The Governor’s decree coerces third parties, under threat of losing government benefits, to disassociate from the Council on American-Islamic Relations (“CAIR”), thereby closing avenues of expression and suppressing CAIR’s protected speech….
On December 8, 2025, Governor Desantis signed Executive Order 25-244 titled “Protecting Floridians from Radical Islamic Terrorist Organizations” (the “EO”). The EO designates CAIR as a terrorist organization and prevents CAIR or “any person known to have provided material support or resources” to CAIR “from receiving any contract, employment, funds, or other benefit or privilege” from executive or cabinet agencies or from any county or municipality of the state….
Where a government uses the “threat of invoking legal sanctions and other means of coercion … to achieve the suppression” of disfavored speech, it functionally creates “a system of prior administrative restraints” that bears “a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan (1963). A government official “cannot do indirectly what [he] is barred from doing directly: … coerce a private party to punish or suppress disfavored speech on [his] behalf.” Nat’l Rifle Ass’n v. Vullo (2024). The present case bears all the hallmarks of unconstitutional coercion that the Supreme Court identified in Bantam Books and Vullo….
Defendant’s EO threatens those who platform, collaborate with, or otherwise provide support to Plaintiff. The “vice of the system” here is the same one the Supreme Court proscribed in Bantam Books. There, threats and coercion subjected the distribution of publications “to a system of prior administrative restraints” untethered from any procedural safeguards. [A state commission had threatened bookstores with prosecution if they continued to distribute certain books that the commission had found “objectionable.” -EV] By imposing the specter of punishment on intermediary book distributors, the state “directly and designedly stopped the circulation of publications in many parts of” the state. This case is no different.
{As evidence of the coercive nature of Defendant’s EO, Plaintiff points to a Florida-based production company that withdrew from a proposed podcast agreement to launch Plaintiff’s civil rights podcast, citing its concerns about the EO, and notes that the company would reconsider its withdrawal from the agreement in the event the EO was found to be unlawful.} Much like the distributors in Bantam Books, the production company is an intermediary intending to platform Plaintiff’s speech. By threatening the production company—indeed, by broadly threatening anyone who wishes to do business in Florida—Defendant stifles Plaintiff’s speech. This violates the First Amendment…
Defendant resorts to proclamations that “Florida is entitled to attempt to stamp out terror,” and that he “made an informed judgment about terrorist organizations and how to best protect the citizens of Florida.” But without explaining why this matters to overcome the “heavy presumption against [the EO’s] constitutional validity,” such statements are mere ipse dixit.
This Court need not determine whether intermediate scrutiny or strict scrutiny applies in this case because, under either standard, Defendant fails to point to any evidence justifying his indirect censorship of Plaintiff’s speech. Instead, assuming some form of heightened scrutiny applies, Defendant merely pays lip service to heightened review in declaring, in conclusory fashion, that “[t]he EO’s denial of government benefits to entities that materially support designated terrorist organizations is the least restrictive means of achieving,” Defendant’s “compelling interest” in “protection of public health and safety.” But Defendant offers no evidence to show how cutting off benefits to third parties who engage with Plaintiff in any way furthers an interest in protecting public health and safety….
Defendant relies heavily on Holder v. Humanitarian Law Project (2010), to suggest this Court must defer to Defendant’s unilateral decision to name Plaintiff a “terrorist organization.” But Defendant is wrong to suggest that his independent decision to call Plaintiff a “terrorist organization” in an Executive Order is entitled to the same deference afforded to the United States Secretary of State’s designation in Holder. Defendant cites no precedent to support his contention that he has absolute authority to name any individual or entity a terrorist or terrorist organization and direct others to withhold any government benefit from them based on his unilateral decision to designate them as such.
Holder offers no help here either, as the authority to designate a foreign terrorist organization under federal law is subject to procedural safeguards that are absent from Defendant’s decision to name Plaintiff a terrorist organization. Here, Defendant essentially insists on a presumption of regularity as to his designation without the process that accompanies such a designation under federal law.
In short, Defendant has unilaterally declared via executive order that Plaintiff is a terrorist organization, with no substantive explanation of his authority to do so, no legislative involvement, and no mechanism for judicial review. Further, even if this Court looked beyond these glaring distinctions, the Court in Holder explicitly “[did] not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations,” such as Plaintiff….
Bantam Books and Vullo involved allegations of the government threatening prosecution or civil enforcement: Bantam Books involved a threat to bookstores that sold certain books, and Vullo involved alleged threats to financial intermediaries that continued to do business with the NRA. But the threat of withdrawal of government contracts and other benefits based on the viewpoint of the recipient—or of people whom the recipient supports—is likewise presumptively unconstitutional. See, e.g., Speiser v. Randall (1958); Board of County Comm’rs v. Umbehr (1996).
For a similar attempt from a left-wing government entity targeting the NRA and companies that do business with it—though there just requiring disclosure of support by would-be local contractors rather than categorically prohibiting such support—see this 2019 post and the decision by Judge Stephen Wilson (C.D. Cal.) in NRA v. City of Los Angeles.
