Nonprofits, their donors, and activists striving for a more equal, just, and fair country and world are core components of American civil society. Yet on September 25, President Donald Trump issued a National Security Presidential Memorandum (NSPM-7) called “Countering Domestic Terrorism and Organized Political Violence,” essentially adding them to an ever-growing list of what he calls the “enemy within.”

Civil society nonprofits and activists thus join segments of academia, the legal profession, public health professionals and scientists, and so many others President Trump sees as his political opponents and critics. For all of us seeking to uphold the Constitution, fundamental human rights, and civil liberties, it’s almost a badge of courage and honor.

On its face, NSPM-7 is chilling to read: If anyone needed proof that “terrorism” and “political violence” are slippery and fraught categories subject to political, ideological, and racial manipulation and bias—well, this is it.

Like the president’s investigation into the Open Society Foundations and his order purporting to designate “Antifa” as a “domestic terrorist organization,” which is not a thing!), NSPM-7 is a deliberate attempt to sow fear and intimidate and silence opposition to the president’s abuses. But true strength in this country comes not from political leaders engaged in fearmongering and political vendettas; it comes from our vibrant civil society, activists, and communities steadfastly pursuing the goals of equality, fairness, and democracy for all. We must not let ourselves be cowed.

The memo is a fever dream of conspiracies, outright falsehoods, and the president’s distorted equation of criticism of his policies by real or perceived political opponents with “criminal and terroristic conspiracies.”

We cannot predict exactly how the memo will be implemented or provide legal advice on the specific questions groups and individuals may have, but here, we lay out what the Memo does not do, what it aims to do, and what it cannot do.

The bottom line in cutting through the noise of reprehensible and irresponsible presidential rhetoric and actions is this: No president can rewrite the Constitution and the safeguards we have under it. These safeguards most emphatically include our First Amendment-protected freedoms of belief, speech, and association; our Fourth Amendment rights against unreasonable searches and seizures; our Fifth Amendment right to due process; and our right to Equal Protection under the laws of this country. Under the 14th Amendment, these due process and equal protection rights apply equally to actions taken by federal and state agencies against tax-exempt nonprofits.

A key thing to know is that the presidential memorandum does not create any new federal powers or crimes.

When the president refers in the memo to “designation” of groups as “domestic terrorism organizations,” that rhetorical label is dangerously stigmatizing and harsh, but it does not in itself have legal force and the president does not cite any authority for it. That is because, unlike for “foreign terrorism,” there is no “domestic terrorism” labelling or designation regime. Congress has passed no law creating any such domestic designation regime, and for very good reason: it would inevitably sweep in First Amendment-protected beliefs, associations, and speech. No matter where civil society groups and activists might fall across the ideological spectrum, from far left to far right, nonpartisan to partisan, religious or not, everyone’s First Amendment rights would be at risk. For that reason, there is also no standalone crime of “domestic terrorism.”

Put another way, any political, legal, or social definition of “terrorism” includes ideological motivation, and there are very serious First Amendment problems with attaching criminal or other sanctions to people or groups based on ideology or belief as opposed to actual, serious criminal conduct—which is already unlawful.

The fact remains: in this country, everyone is entitled to their beliefs and to act on them lawfully without fear of punishment, no matter how extreme or disfavored the government thinks those beliefs are.

The memo is a fever dream of conspiracies, outright falsehoods, and the president’s distorted equation of criticism of his policies by real or perceived political opponents with “criminal and terroristic conspiracies.” It stitches together a few disparate, serious acts of actual or attempted criminal conduct with First Amendment-protected beliefs and protests against the president and his policies, and wrongly conflates them as “political violence.” It ignores what any responsible understanding of actual political violence would make clear: political violence does not fit into neat ideological buckets and while increasing in frequency, it remains rare. After all, the January 6, 2021 attack on the Capitol by the president’s supporters is a paradigmatic example of actual political violence, but NSPM-7 pointedly fails even to mention it.

Perhaps the most chilling rhetorical move the president makes is to use vague, broad labels that, even if true—and there’s good reason to question the truth of virtually all of the memo’s assertions—encompass First Amendment-protected beliefs unconnected to any actual criminal conduct. These labels include: “Anti-Americanism, anti-capitalism, and anti-Christianity,” “support for the overthrow of” the federal government, “extremism on migration, race, and gender,” and opposition to “traditional American views on family, religion, and morality.” The president even bizarrely imagines that “support for law enforcement and border control” are “foundational American principles” that his political opponents paint as “fascist” to encourage violence. No wonder many in civil society see NSPM-7’s rhetoric as a threat to human rights, civil liberties, and democracy-building work.

Through the memo, the president instructs federal departments and law enforcement agencies to use authorities they already have and focus them on investigations of civil society groups — including nonprofits, activists, and donors—to “disrupt” and “prevent” the president’s fever-dream version of “terrorism” and “political violence.”

To understand the fundamentals of these existing authorities—and how they are abused— it helps to know what is already on the books. When Congress passed the USA Patriot Act in 2001, it defined domestic terrorism as acts that are dangerous to human life and already criminal, which are intended to intimidate or coerce a civilian population or influence government policy or conduct. Again, this definition is not itself a “domestic terrorism” crime; federal agencies use it for investigative purposes.

As the ACLU and other rights groups have consistently criticized in the decades since 2001, federal agencies have used the Patriot Act “domestic terrorism” definition to claim expansive authorities to investigate and surveil people and groups with little or no factual, evidentiary basis, including those engaged in First Amendment-protected protest and other activities. Indeed, the Justice and Homeland Security Departments have for decades created categories of investigative priorities ostensibly focused on “violent extremists” with a variety of what the agencies describe as “ideological agendas”—ranging from “racially and ethnically motivated” to “anti-government/anti-authority” to “potential bias related to religion, gender, or sexual orientation,” and more.

In other words, abusive use of “domestic terrorism” investigative authority is not a new problem, but it is a serious one.

One important, concrete thing we can do for ourselves and our communities is, therefore, to educate people about the variety of scenarios in which they may encounter federal agencies and their rights in those scenarios—particularly if questioned by law enforcement agencies and when exercising the rights to free speech and protest. And if, in fact, an individual or group is actually investigated, invoke the right to a lawyer.

The memo instructs Joint Terrorism Task Forces (JTTFs) to conduct investigations. Here, it helps to know what JTTFs are, the rights concerns........

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