Speaking Truth to Power: Update on FEF’S Major Ongoing Cases
By FEF Staff
In May 2026, the Free Expression Foundation posted on its website an update on three of its major cases. Since that date, FEF (i.e., attorneys affiliated with FEF) has continued its zealous advocacy for the First Amendment rights of dissidents, taking cases no other attorneys will touch. The following overview summarizes the present status of the three cases discussed in the earlier update and also the status of three additional cases.
1. Jacobs, et al. v. Caitlin, et al. (Federal Court, Northern District of Georgia)
As explained in the earlier update, Matthew and Hillary Jacobs were arrested and Michael Weaver threatened with arrest in Georgia for alleged “littering” based on their distribution of flyers critical of Jewish power and influence. Mr. Jacobs was assaulted by a jail guard while he was incarcerated after his arrest. Mr. Weaver, reasonably believing he would receive similar mistreatment, went into reclusion.
In March 2025, the Jacobs and Mr. Weaver, represented by Glen Allen, Randy Sheppard, and Fred Kelly, filed in Georgia federal district court a complaint against (among others) several deputies and employees of the Douglas County, Georgia Sheriff’s Office alleging numerous First Amendment claims for damages and seeking to enjoin any state court prosecutions. The federal court dismissed the complaint based on federal abstention doctrine, under which a federal court may, in certain circumstances, abstain from adjudicating a case if doing so would interfere with a pending state court prosecution.
In October 2025, the FEF lawyers appealed the abstention dismissal to the federal Eleventh Circuit Court of Appeals. They also filed a separate motion (known as a “demurrer” under Georgia state procedure) in Georgia state court to dismiss the long-delayed state criminal prosecution of the Jacobs. They supported their demurrer on statutory construction grounds, i.e., that the pamphlets were not “littering” as that term is defined under state law. The FEF lawyers did not raise First Amendment issues in state court, as those issues belong in the federal court action. In August 2026, the state court, to its credit, granted the demurrer and dismissed the state court prosecution against the Jacobs (no state court prosecution has ever been commenced against Mr. Weaver).
In October 2026, the Eleventh Circuit remanded the federal case back to the district court to determine whether, in light of the Georgia state court’s grant of the demurrer as to the criminal prosecution, any grounds remained for the district court to continue to abstain. The FEF lawyers are confident that no such grounds remain and the district court must now proceed with the adjudication of the Jacobs’ and Mr. Weaver’s First Amendment claims for damages.
Speaking generally, civil litigation may be divided into four phases: 1) the filing of a complaint followed by preliminary motions of law based solely on the content of the complaint; 2) if the case survives Phase 1 preliminary motions, the parties proceed into discovery, e.g., document requests and depositions, followed by motions for summary judgment asserting that no triable issues remain after discovery; 3) trial; and 4) appeal. The Jacobs / Weaver case has already had an unusually lengthy and complex Phase 1 but in all likelihood that phase is not yet ended. The defendants will no doubt now file a motion to dismiss the Jacobs / Weaver complaint on grounds of qualified immunity, i.e., that the sheriff and his deputies reasonably believed their actions were not unconstitutional. The FEF lawyers are fully prepared to oppose such a motion, which contravenes settled law from the U.S. and Georgia Supreme Courts.
2. Austin Franco v. Accuracy in Media (District of Columbia Superior Court)
On September 7, 2026, FEF’s Glen Allen filed suit on behalf of Cornell student Austin Franco in the District of Columbia Superior Court against Accuracy in Media (“AIM”), a D.C. based non-profit. Mr. Franco gained national attention this past summer by refusing to work for two Jewish individuals. As a result of that refusal, a swarm of harassment and doxxing was directed against him, and AIM sought by means of a fraudulent covert operation to capitalize on it. Specifically, the AIM non-profit impersonated another organization, Justice in the Classroom, and in a letter offered Mr. Franco a range of services to induce a meeting. In reality, the letter was a ploy to attract the young college student to AIM’s hidden camera sting operation intended to discourage his activism.
Mr. Franco’s complaint alleges five violations of D.C.’s Consumer Protection Procedures Act, including misrepresentation of affiliation (D.C. Code § 28-3904(b)) and passing off services as those of another (D.C. Code § 28-3904(s)). After the filing, FEF staff discovered that AIM unlawfully maintained false contact information for its designated agent for receiving the summons to the lawsuit. Service of process on AIM ultimately had to be completed by filing with the D.C. Superintendent of Corporations. Mr. Allen has now filed a motion to recover costs of service in accordance with D.C. Code §§ 29–102.09(g) and for sanctions.
The case remains in active litigation. AIM, having finally accepted service, has threatened Mr. Franco with a motion under the District’s Anti-SLAPP statute, a statute (SLAPP stands for Strategic Litigation Against Public Participation) designed to protect free speech and public participation by stopping powerful individuals or corporations from using expensive, baseless lawsuits to silence critics. Mr. Allen is fully prepared to defend against such a motion and to demonstrate that AIM had no First Amendment right to use fraudulent means to obtain an interview with Mr. Franco and then use that interview against him.
3. Sines, et al, v. Nathan Damigo (Federal Court, Eastern District of California)
As explained in FEF’s May 2026 update, Nathan Damigo was among numerous defendants subjected to a jury verdict that awarded over $3 million to the plaintiffs in the Sines, et al. v. Kessler, et al. case (the Unite the Right case in the federal court for the Western District of Virginia in Charlottesville). This huge damages award was legally dubious as to all defendants but especially as to Mr. Damigo, who had been found liable by the jury on only one count (there were six counts in the complaint), i.e., civil conspiracy, and on that count the jury awarded merely $1.00 in nominal damages. The trial court in the Virginia case, however, held that all defendants were jointly and severally liable, i.e., each liable for the entire amounts that had been awarded on four separate counts, including those on which Mr. Damigo was not a named defendant. Mr. Damigo thus became liable for the large amounts awarded against other defendants, for example, James Fields, even though Mr. Damigo had no connection to Mr. Fields.
Mr. Damigo filed for bankruptcy in 2019, as he was entitled to do, seeking to discharge the Sines v. Kessler jury award against him. The Sines v. Kessler plaintiffs later filed a complaint in the bankruptcy court to prevent him from discharging that debt. They thus carried out the vindictive threat made by Roberta Kaplan, lead attorney for the plaintiffs in the Sines v. Kessler case, who had publicly vowed that “We absolutely can and will bankrupt these groups. And then we will chase these people around for the rest of their lives. So if they try to buy a new home, we will put a lien on the home. If they get a new job, we will garnish their wages.”
Glen Allen entered the case for Mr. Damigo at the bankruptcy court, seeking to defend and protect Mr. Damigo’s right to discharge the Sines v. Kessler jury award. After extensive summary judgment briefing and a hearing, the bankruptcy court ruled for the Sines v. Kessler plaintiffs, holding that Mr. Damigo had supposedly inflicted a “willful and malicious injury” that was not dischargeable. Mr. Allen then filed an appeal to the federal District Court for the Eastern District of California on Mr. Damigo’s behalf, submitting on April 24, 2026 a lengthy brief (34 page) and appendix (447 pages) in support of the appeal. (Any persons interested in reading the brief filed on Mr. Damigo’s behalf may access it on the FEF website here.) On June 9, 2026, Mr. Allen filed a reply brief in further support of Mr. Damigo’s appeal. Briefing is now completed.
There has as yet been no further action in the case, as the parties await a decision from the District Court.
4. Kuriakose v. Metropolitan African Methodist Episcopal Church (District of Columbia Court of Appeals)
As explained in the earlier update, during the tumultuous Pro-Trump “Stop the Steal” rally held in the District of Columbia in December 2020, several members of the Proud Boys organization jumped over a fence surrounding a Metropolitan African Methodist Episcopal Church and tore up a Black Lives Matter sign on the church’s property. David Kuriakose was not among them but happened to be nearby when the incident occurred. The Paul Weiss law firm that represented the church in a subsequent civil rights action nonetheless included Mr. Kuriakose as a defendant in that action, contending that Mr. Kuriakose’s proximity to the vandalism, membership in the Proud Boys, and expressed dislike of Black Lives Matter was sufficient to entangle him in the litigation as a conspirator. As nearly everyone knows, merely being named as a defendant in such lawfare cases can be devastating financially, emotionally, and vocationally, even apart from an unfavorable verdict; the process itself is the punishment. Conspiracy allegations, which is all the Paul Weiss firm could muster against Mr. Kuriakose, are unfortunately a primary legal weapon employed to support this lawfare.
Believing this misuse of conspiracy allegations threatens First Amendment freedoms, especially in the context of large scale demonstrations (which have become much less frequent, at least among the Dissident Right, after the Charlottesville Unite the Right events and litigation), in 2024 Mr. Allen agreed to represent Mr. Kuriakose. At that time, Mr. Kuriakose, like nearly all the other defendants, had no counsel and the Paul Weiss law firm had begun to obtain large default judgments, many in excess of $1 million, against the defendants.
Mr. Allen took the offensive by filing on behalf of Mr. Kuriakose a motion to dismiss under the District of Columbia’s Anti-SLAPP statute. As noted previously with respect to the Franco litigation, the purpose of Anti-SLAPP statutes, in DC as elsewhere, is to provide a quick and economical disposition of lawfare cases and other abusive litigation insofar as such cases come within the scope of the Anti-SLAPP statute. A key issue was whether the church’s conspiracy claim against Mr. Kuriakose came within the protective ambit of the statute. After extensive briefing and a hearing, the trial court concluded it did not.
Mr. Allen appealed to the District of Columbia Court of Appeals. Following lengthy briefs, on May 8, 2026, in a special sitting before three judges of that appellate court, Mr. Allen argued the appeal. The judges, to their credit, were engaged by the issues presented and asked many questions; the argument, scheduled for thirty minutes, lasted an hour and twenty minutes.
The Court of Appeals has not yet issued its opinion in this appeal.
5. Augustus Sol Invictus v. Commonwealth of Virginia (Court of Appeals of Virginia)
On June 9, 2026, The Free Expression Foundation filed a 30-page Amicus Curiae brief in the Virginia Court of Appeals in the Invictus v. Commonwealth appeal, arguing that in light of settled First Amendment precedent Augustus Sol Invictus’s conviction under Virginia Code § 18.2-423.01 should be set aside. The basic facts of Mr. Invictus’s conviction were these. On April 3, 2023 – nearly six years after the date of Mr. Invictus’s alleged offense – a newly elected prosecutor sought and obtained a grand jury indictment charging Invictus with violating Virginia Code § 18.2-423.01, Virginia’s “burning object” statute, which makes it a felony offense to publicly burn an object “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury” and “with the intent of intimidating any person or group of persons.” This section is found in the same part of the Virginia Code as § 18.2-423, which makes it a felony to burn a cross on the property of another, a highway, or a public place with intent to intimidate any person or group. Section 18.2-423 was famously challenged in the landmark Supreme Court case of Virginia v. Black, which affirmed that while cross-burning can be banned when intended to intimidate, the statute’s provision treating the burning itself as proof of intent is unconstitutional.
Mr. Invictus was a participant in a march through the University of Virginia campus on the night of August 11, 2017 as part of the wider Unite the Right protest against the planned removal of a statue of Confederate General Robert E. Lee located in a Charlottesville park which at the time bore Lee’s name. The August 11 march was widely publicized after it occurred, in large part due to the marchers’ use of tiki torches. Mr. Invictus carried one such tiki torch and filmed himself as he peacefully demonstrated alongside his fellow marchers.
FEF contends in its amicus brief that Mr. Invictus’s conviction cannot be squared with First Amendment doctrine. The Commonwealth’s theory of its case was that Mr. Invictus violated Virginia Code § 18.2-423.01 when, along with the other marchers, he allegedly surrounded and outnumbered counter-protestors who had arrived earlier at the march’s end point to disrupt the planned speaker. FEF’s amicus brief argues that under current Supreme Court and other precedents it cannot be illegal for one group of protestors to simply outnumber a competing group; that one group of demonstrators (such as antifa) cannot circumscribe the scope of competing demonstrators’ speech and expressive conduct in a public square by preemptively positioning themselves at the center of the public square; and that a person’s (Mr. Invictus’s in this case) mere presence at the site of First Amendment protected assembly is insufficient to support a conviction based upon a concerted action theory where sporadic acts of violence were alleged to occur by other persons.
Oral argument in the Virginia Court of Appeals on Mr. Invictus’s appeal is scheduled for mid-November 2026. Although as amicus FEF is not permitted to participate in oral argument, its attorneys will closely monitor the oral argument and the court’s subsequent decision. FEF stands ready to act as amicus in a further appeal to the Virginia Supreme Court or even United States Supreme Court if necessary.
6. Glen Allen v. Heidi Beirich and the SPLC
On April 21, 2026, a federal grand jury indicted the Southern Poverty Law Center on six counts of wire fraud, four counts of false statements to a federally insured bank, and conspiracy to commit concealment money laundering. On August 11, 2026, the grand jury returned a second superseding indictment against the SPLC, adding Heidi Beirich as a defendant and adding numerous conspiracy counts, including wire fraud conspiracy, conspiracy to submit false statements to a federally insured bank, and conspiracy to commit concealment money laundering. The factual allegations supporting the indictments included many that were nearly identical to allegations Glen Allen had made in his 2017 lawsuit against Beirich and the SPLC, a lawsuit the Maryland federal court dismissed as “implausible.”
The trial date in the SPLC / Beirich prosecution has been continued several times. It is now scheduled to begin February 1, 2027. The specific identities of the SPLC employees, informants, and paid agents accused of crimes in the indictments have not yet been publicly revealed. Mr. Allen has been closely following the case with a view to attempting to re-open his litigation against Beirich and the SPLC when greater information is made public by trial or in other ways.
CLOSING
The resources arrayed against FEF in the cases described above exceed FEF’s resources by several orders of magnitude. FEF’s lawyers and legal assistants, however, are not intimidated. To quote Patrick Henry, the battle is not to the strong alone but to the vigilant, the active, the brave. With help from FEF’s supporters, the FEF team aspires to fight as defiantly and successfully as Patrick Henry did.
Thank you for your continued support.
Glen Allen and the FEF Team.
