Opportunities for Funder Intervention in State-Sponsored Repression of Justice Movements

Summary

There has been a dramatic scale up of attempted and actualized state-sponsored repression of vulnerable communities in the United States over the past eight years. BIPOC communities, migrants, trans people, reproductive health care patients, houseless communities, folks with disabilities, people living in poverty, and many more have all come under attack. Those communities that have grown their social movements to fight back against this repression have seen their movement formations explicitly targeted. Movements engaged in a broad range of strategies – protest, mutual aid, direct service, policy advocacy, or electoral activity – have endured targeted political violence at the hands of reactionaries, corporations, media, and government.

Social movements - and funder allies - have largely been unable to stop a new wave of legislation criminalizing First Amendment activities and collective bail funds, stop the expansion of law enforcement surveillance and infiltration, adequately respond to copaganda narratives, blunt law enforcement violence against activists, or defend ourselves against politically-motivated criminal prosecutions and civil litigation in a manner that gives us hope that we can both protect all of our people and stem the tide of future attacks.

This has been happening for years, and it is happening everywhere - in blue states and red states, under both Biden and Trump administrations. There are often warning signs that state-sponsored repression will ramp up against movements. Yet movements lack the resources to ensure they have the necessary preparations and defense to blunt the effects of this repression, let alone deploy the legal defense infrastructure, a clear media narrative, and effective organizing tactics to turn the attack back against the state and make it politically toxic to repeat in the future.

As one leader noted,

“The house is already on fire. We need fire trucks there. Right now, we’re all standing around with buckets of water.”

Democratizing Justice Initiative, in partnership with Borealis Philanthropy’s Communities Transforming Policing Fund, CS Fund, Piper Fund, and Community Justice Exchange, has conducted conversations with many experts who have experienced or have provided support to those who have experienced political prosecutions by the state for their activism. Based upon these conversations, below is an overview of what we have heard from this sample of experts regarding the challenges movements face in navigating through the targeted repression against them, what the barriers are to ensuring movements have the support they need, and some specific suggestions for investment.

We know that there is no single solution or panacea to building the infrastructure and muscle that has been glaringly lacking. However, we recognize the cost of inaction and continued underinvestment is having on our social movements and therefore offer a pathway to begin to address these rising, critical threats.

Moving Beyond Piece-Meal Solutions & Crisis Response Culture

While many brilliant practitioners are thinking through some of these challenges, and there are many specific solutions articulated below in this document, there is a lack of capacity to set a table for broad participation to discuss solutions to these challenges, and there is no collective whole to make recommendations to, even as people are filling the gaps.

The infrastructure we have to build in order to defend social movements against this next generation of state repression is many decades behind what we are fighting against. It is crystal clear that we need to move out of our hyper-reactive posture and invest in long-term infrastructure – understanding how to meet this moment and the moments to come. Building this muscle will take time, money, and experimentation. Yesterday is the time to offer meaningful capacity support to practitioners who have been grappling with these challenges so they may collaborate in robust, focused, and strategic spaces and determine how to implement solutions to these challenges and grow our collective brain.

Therefore, in addition to the specific investment recommendations listed in this document, we see a critical need to move beyond piece-meal solutions and the crisis response culture by convening a “brain trust” of principle architects whose expertise spans across criminal and civil defense, local and national organizing against state repressions, and strategic communicators. Establishing a creative environment where recognized leaders in their respective fields would further envision the interconnected scaffolding needed to support movements and build a roadmap to get there is a pivotal first step to building the long overdue infrastructure.

Methodology

Over the course of five months, we held conversations with the following leaders in the field. We appreciate their wisdom, patience, and willingness to share the realities of engaging in the defense of movements against state-sponsored repression.

Betsy Apple, Global Climate Legal Defense & the Equation Campaign
Emile Ayoub, Brennan Center for Justice
Alicia Bannon, Brennan Center for Justice
Camille Bennett, Project Say Something
Ivey Dyson, Brennan Center for Justice
Kathleen E. Brody, Phoenix Attorney
Xavier T. de Janon, National Lawyers Guild
Rana Elmir, RISE Together Fund
Kamau Franklin, Community Movement Builders
Paul Glaze, ATL Justice Comms
Heather Hamel, The Prometheus Conspiracy
Rachel Herzing, Wellspring Philanthropic Fund
Mary Hooks, Movement for Black Lives
Marlon Kautz, Atlanta Solidarity Fund
Joan Lamunyon Sanford, Faith Roots Reproductive Action
Joey Mogul, Movement Law Lab
Rosemary Nidiry, Brennan Center for Justice
Lorraine Ramirez, Funders for Justice
Lauren Regan, Civil Liberties Defense Center
Andrea Ritchie, Interrupting Criminalization
Alicia Sanchez Gill, Emergent Fund
Jesenia Santana, Solidaire
JML Santiago, National Lawyers Guild
Matt Scott, Atlanta Solidarity Press Collective
Purvi Shah, Movement Law Lab
Jonathan Sidney, Climate Defense Project
Cristina Uribe, Collaborative for Gender + Reproductive Equity
Mara Verheyden-Hilliard, Partnership for Civil Justice Fund
Tiffany Williams Roberts, Southern Center for Human Rights

Top-Cited Legal Infrastructure Challenges

Leaders cited that the changing scale of political prosecutions in the past few years has strained movements’ capacities to provide legal representation for individuals, grassroots formations, and organizations being targeted for their activism, let alone engage in proactive litigation to collect damages for civil rights violations or challenge the constitutionality of anti-First Amendment laws. Specifically:

Criminal and civil defense of movement operates in triage mode when a crisis emerges, struggling to find enough trusted, vetted, and values-aligned attorneys who are well-positioned to support movement defense strategies and democratize the law with clients -– especially attorneys that come from the communities being targeted and who understand the local judicial system. There is a need for more locally embedded movement lawyers everywhere, including jurisdictions where political prosecutions are occuring or highly likely to happen.
There are a dearth of attorneys skilled up to effectively handle the specific prosecutions, whether they are misdemeanors or felonies, domestic terrorism or RICO, or charges under federal statutes , not to mention the array of pre-indictment needs, and civil defense/SLAPP cases.
Pro bono representation is an unsustainable model, especially for complex felony cases or SLAPP suits, and money for lawyers is necessary but requires clear protocols to avoid those who might abuse the economics.
The next generation of attorneys, especially from the communities being targeted, do not have access to the training or mentorship programs that would build the skills, knowledge and resources to adequately defend movement against emerging threats. There are too few national organizations trusted to hold the coordination of legal support and the attendant financial needs. Local organizations with that capacity are exceedingly rare.
The frequent siloing of legal defense from organizing and communications strategy prevents a holistic, multi-prong response to state-sponsored repression.
The lack of information sharing across existing legal organizations or networks across issue areas (climate, racial justice, repro, etc.) was cited by leaders as a key gap in the legal infrastructure

Top-Cited Organizing Infrastructure Challenges

Due to the constant state of crisis, movement turnover, chronic philanthropic underinvestment, and evolving political realities, leaders cited a fundamental need for deep organizing training for national movement formations and strategic planning support for local organizations. This is particularly noted among those formations and organizations in frontline jurisdictions across the south. Specifically:

Movement formations are under ever present surveillance by law enforcement, corporate opposition, and reactionary formations. The state’s advancements in technology and legal theory to gain greater access to movement structure, affiliations, and intentions presents the most widespread threat to movement, and service providers working in bodily autonomy, and immigration.
National movement formations and local organizations lack knowledge of political prosecution trends and often do not have a current jurisdiction-specific threat analysis of state repression.
Organizers across issue area and geography cite the need for training and direct support for safety and security - digital, physical, financial and regulatory, as well as interpersonal conflict management. There are very few movement-aligned technical assistance organizations providing these trainings or on-going support. The few that exist lack the capacity to scale up for the moment.
Technology is advancing at a rate that is outpacing movement. Many trends within the digital security culture and methodology currently focus on end user interventions, such as password protection or encrypted messenger apps. These do not address larger privacy issues that are the result of corporate data sharing or selling of data. There is a larger need to address the broad information technology infrastructure and technical tools required to obfuscate movement from state or corporate surveillance.
It is also unclear how the understanding of security challenges among practitioners incorporates the unique considerations that may apply to the increasing severity of state attacks using the legal system – grand juries summons, raids, forensic accounting, etc

Top-Cited Communications Infrastructure Challenges

When crisis hits, movements need trusted, skilled communicators with local and national media reach to support them in helping to frame the debate and deploy rapid strategic communications. This is no easy task when many movements naturally distrust establishment structures. Developing unified messaging strategies on legal cases is a further challenge. So is developing a unified communications strategy across organizations and coalitions. Specifically:

Movement formations, local organizations, and movement lawyers need guidance on narrative opportunities, message development and testing, media training, drafting media pitches, and statements for partners, social media campaigns and toolkits, and graphic design for digital and printed materials.
Local media markets - where they still exist - are often co-opted by or deferential to state narratives and copaganda, necessitating alternative methods for disseminating news.
Many journalists and editors do not have a contemporary understanding or historical context of state repression of First Amendment activities.

Suggestions Articulated by Interviewees for Responding to Above Challenges

We recognize that no one tactic will solve this problem. We highlight these specific suggestions that we heard from interviewees as possible investments, and with an overarching recommendation that funders invest in establishing a shared space where practitioners can interrogate these suggestions and determine where they fit on a road map to creating the needed legal and organizing scaffolding to build forward

Legal Infrastructure

There are many big unanswered questions surrounding how to build the legal infrastructure at a scale and scope needed to address the challenges laid out in this document. From how to vet attorneys and law firms to how to resource lawyers and share briefs to how to build and scale training programs, a legal brain trust could work together to establish protocols to facilitate the safe and secure flow of information to vetted participants, via infrastructures / repositories that are trusted by movements.
Many legal practitioners express the need for a space to share information on hot spots, crowd-source resources for criminal defense and civil litigation, and learn from best practices. A collaborative space could expand the reach of existing legal organizations or networks across issue areas (climate, racial justice, reproductive rights, etc.) to connect them to shared resources and learnings.
Legal pairing between activists or organizations and criminal defense counsel typically occurs either through national legal organizations or local legal organizations or informal networks. As we face the limited capacity of national groups to respond to all of the emerging or potential threats, there is value in memorializing lessons learned and best practices for local lawyer pairing and support from groups like the Southern Center for Human Rights’ First Amendment Bridge program and others.
Funders should help Incubate or scale a wide variety of legal fellowships, mentorship programs, and CLE bootcamps around the country and across issue areas that serve as a catalyst for generational knowledge transfer to thousands of younger, movement aligned – yet inexperienced – attorneys.
Because of geographic and jurisdiction nuances in law and court proceedings, lawyers - of all experience levels - have expressed enthusiasm for a legal reference guide covering common offenses used in political prosecutions, legislative changes, case law, charging issues, punishments, defenses, and exceptions for target states. A relatively small project specific grant could support the development and publication of these reference materials in targeted states.
In the response phase of a collective defense effort, movement organizers, media, and lawyers need local expertise to understand how to get public records out of a particular agency and the ability to sue said agency if it creates roadblocks to access in furtherance of the state’s political agenda. Activists would benefit from a toolkit with best practices and a pool of funds set aside to pay for public records.

Organizing Infrastructure

Funders should invest in anti-repression hubs or “think/do tanks” that consist of organizers that cultivate connections to local movements; monitor national trends in law enforcement surveillance, enforcement, and investigations; supports local organizations in jurisdiction-specific law enforcement tracking that feeds into legal strategies; and conducts training/coaching for movement leaders. Grantmakers supporting their grantees through cohorts, networks, or other programming should engage these movement-aligned experts to provide briefings and, where warranted, direct support for grantee partners.
Funders need to support those consulting entities, projects and organizations focused on movement security needs so they can scale up, as well grantees who need additional funding for staff learning and implementation of practices.
Funders should invest in creating a left-wing cultural understanding and practice that is rooted in creating opacity to state surveillance. This includes developing independent IT infrastructure for movement, service providers, and left of center institutional partners.
Funders should invest in training people who have radical instincts in the value of organizing in mainstream spaces and allying with existing structures. While some will eschew this positioning, there is value in offering the analysis and allowing people to decide whether such engagement is right for their activism. This can include both comprehensive, in-person training programs and peer-to-peer training.

Communications Infrastructure

There is a need for independent investigative journalism and values-aligned media. Funders should capture the lessons learned from the startup and development of Atlanta Community Press Collective and other movement-incubated media outlets as the first step towards incubating similar efforts in target media environments.
Funders should invest in building or scaling teams of communications TA providers - traditional media and digital - to support local organizations and attorneys with strategic communications support in preparation and response phase.
Funding for communications professionals already trusted by communities is critical to discuss the benefits and perceived downsides of engaging in strategic communications planning and offer their services as mentors, trainers, and coaches. Movements need narrative and media training and professional talking points, and an opportunity to hear the value of professionalizing a media operation, when many are skeptical about working with local media given the perceived political bias and corporate influences. Trusted comms professionals can also work to engage and politically educate journalists in order to influence their coverage, and nationalize the story of repression.
Movement-led investigations and independent research have produced positive media and narrative outcomes against political prosecutions. Funders should invest in opposition research capacity and support for robust public records management that feeds into strategic communications that counter state narratives.
Funders can support in developing political education materials for local reporters, investigative journalists, and social media influencers providing them practical ways to improve their coverage of protests, social movements, and state repression.

Pre-stage Support in Hot Spot Jurisdictions (Mitigation or Preparation)

Legal organizations with a track record of successfully establishing trusted relationships and supporting local movements with conducting jurisdiction-specific research, identifying and engaging aligned legal practitioners, and building strategies need to be staffed up to support those needs in more places at high risk for repression where they hold or are building trusted relationships. Funders should support these national legal organizations with the resources to have dedicated capacity to meet these needs in more hot spots before they arise.
Movement formations and local organizations facing an imminent attack should have access to similar peers for support in strategy development and emotional support to fortify in preparation for pending political prosecutions. Funders can provide stipends and travel expenses for experienced organizers to spend time on the ground with movements facing threats.
Engage and organize local partners, peers, and allies to take bold action against state repressions in solidarity with those being attacked.
Provide direct strategic communications support based on assessment of movement and state narratives, media landscape, and local communications capacity.

Rapid Response to Emerging Political Prosecution

Rapid response needs have both similarity across jurisdictions - resources for legal, organizing, and communications - and unique characteristics specific to the targeted location, movement, and circumstance. By building a better infrastructure, targeted movements will have more and more effective resources from day 1. However, there will still be a need for resource mobilization for bail and direct legal expenses, local organizing capacity building, etc.
There is a role for an on-the-ground coordinator/connector between the local movements, legal strategists, and mutual aid formations to the national supporting organizations and funders. The purpose is to triage on the ground needs, get resources and support moving, and solve quick problems that can stabilize the situation until longer-term solutions are available.

Ken Chapman