Editors’ Note: Beth Gazley and Jennifer Alexander use an authoritarian framework to explain recent state government actions intended to restrict nonprofit activity in the US. This piece is based on a 2025 article appearing in Nonprofit Policy Forum.

Unstable democracies have longstanding experience with governmental restrictions on civil society activity. Now these repressive efforts are occurring in Western Europe and North America. The term “authoritarianism” describes an expansion of government power intended to repress dissent. Our research, recently published in Nonprofit Policy Forum, has looked specifically at the efforts of U.S. states to restrict civic space through statutory and executive authority. While authoritarian activities are increasing at the federal level, U.S. states are the primary source of regulatory authority over charitable organizations. Our sources involved public law databases, with a special nod to the International Center for Nonprofit Law.

These new restrictions on U.S. civil society result from a unique confluence of circumstances in the US: the emergence of states as the nerve center of national policy mingled with their longstanding legal authority to define terms of political participation for both nonprofits and individuals. Our central finding is that patterns of nonprofit suppression by authoritarian governments outside the U.S. conform with the current U.S. experience, at the state level.

U.S. nonprofits have civil liberties but also restrictions

But don’t nonprofits have constitutional rights that protect their activities even under highly partisan circumstances? They do, but with limits. The term “nonprofit civil liberties” describes the constitutional rights of speech, petition, religious freedom, peaceable assembly, protection from unreasonable search and seizure, free press, and fair trial embedded in the U.S. Constitution. Many of these rights extend to nonprofit corporations as well as individual citizens because courts recognize that institutions protect the civil liberties of the people they represent. A nonprofit’s right to protect donor privacy has certainly been in the recent news, such as with the Supreme Court case Americans for Prosperity Foundation v. Bonta (2021).​

In our research, we are particularly interested in how organizing activity has become vulnerable to state government restrictions. A common example is the requirement of a group permit for a demonstration. What happens when a group asserts its constitutional right to demonstrate as a form of “peaceable assembly” but the state government, with its control over public safety, gets to decide what is “peaceable”? The result can be heavier restrictions on the time, place and manner of that public assembly. For example, some states have pushed public demonstrations out of public buildings and into designated “protest zones.” In a nutshell, collective action does not enjoy the same expressive rights as individual action. This matters because civil society organizations are the accepted means though which communities collectively challenge powerful interests.

Using an authoritarian framework to explain the nonprofit experience with state restrictions

State laws reflect authoritarianism in the way they restrict civil society organizations’ operational space. The frameworks we employ identify five discrete state actions (intimidation, administrative restrictions, criminalization, stigmatization, and putting spaces of dialogue under pressure). Accordingly, authoritarianism tends not to begin with coup d’etats but rather with small steps, such as incremental legislative action or manipulation of the public narrative to stigmatize actions the state opposes. For example, both Black Lives Matter and antifa activists have been labeled with the stigmatizing language of “domestic terrorists” and “extremists.” Delegitimizing political opponents also puts the natural spaces of public dialogue under pressure – spaces that should offer opportunities for citizen voice and participation. States can restrict this space by favoring certain collaborative policymakers such as the Heritage Foundation and the American Legislative Exchange Council, while also exercising venue control to constrain the available public space for free expression (e.g., criminalizing protests at government buildings via Mississippi SB 2343 or imposing curfews through Indiana SB 198).

States can also criminalize previously permitted mass mobilization activities. We found this to be the most active area, with 22 states passing new anti-protest laws or expanding existing laws with more severe sanctions (such as increasing a misdemeanor offense to a felony and increasing fines). Some laws deliberately target organizations. For example, Alabama SB 152 allows municipalities to charge demonstrators for the cost of policing a demonstration, while a cluster of state laws passed after the Keystone XL Pipeline protests (2015–2017) sometimes assign vicarious liability to the organizing entity. An Ohio law (HB 109, 2021) criminalizes providing “material support” for demonstrations. An ongoing Georgia case finds the state using its RICO law to claim that coordinated action against a police facility is tantamount to a “conspiracy” to commit violent acts. We observe in our article how these state actions weaponize the values of collectivism and mutual aid against community organizers.

State governments also use violence in the form of physical threats, intimidation and harassment. Evidence of this is manifested in the increase in excessive force lawsuits and police raids on charities.

States also have the constitutional power to legislatively preempt (i.e. overrule) the ability of local municipalities to protect and serve local citizens as they see fit. Experts observe a new, right-leaning tilt as state legislatures trend more ideologically conservative and municipalities trend more liberal. The outcomes include bans on everything from sanctuary city declarations to consumer credit protection to drag performances. Twenty-two states have prohibited diversity, equity and inclusion principles involving state funding. Nonprofits are central to all of these policy issues as service providers or advocates. An important consideration for social movement organizers is the idea that state preemption rights also extend to referendum access and voting rights. Twenty-four U.S. state legislatures have either clawed back or never allowed civil society organizations to organize ballot initiatives.

Case Study: Government Regulation of Immigrant-Serving Nonprofits in Texas

In addition to a national scan of state legislation, we used Texas as a single-state case study, focusing on the State government’s constrictions on immigrant-serving nonprofits and applying the five discrete authoritarian actions. In the case of Texas, state actions often met several categories at once. For example, an effort by the state to intimidate a nonprofit may involve calling for an investigation (criminalization), threats to revoke registration or funding (administrative restrictions), and a delegitimizing public narrative accusing the nonprofit of criminal activities (stigmatization).

All five categories of restriction were identified. Nonprofits are routinely intimidated and harassed by unpredictable police presence, and accusations against organizations are lodged by political actors or the Attorney General’s office. When public media are involved, these accusations serve to criminalize, stigmatize, and delegitimate nonprofit missions and activities, sometimes driving clients away. An employee at a food bank in El Paso said, “They are criminalizing humanitarian behavior, and it is making the organization toxic to the people who need it most.”

Administrative restrictions include changing terms of funding. For example, the state has imposed restrictions on federal funding for crime victims, proscribing use of said funds for undocumented residents. This order placed nonprofits in a conflict between the intended use of federal funds for victims’ rights, and the state’s new requirement.

Accusations of criminal behavior by the Attorney General shape the public narrative and can shift the battle from the media to the courts, where frivolous but costly legal action drains organizations of limited funds. One executive director noted, “the AG’s office is essentially engaged in ‘death through litigation’ because the intention of lawsuits is not to win the legal battle but to win the political war and most of us cannot afford to be sued.”

One notable example involves Annunciation House, a Catholic affiliated nonprofit that has provided humanitarian services and medical care for asylum seeker and migrants for over 50 years. The Attorney General accused Annunciation House of being engaged “in the business of human smuggling,” operating an “illegal stash house” and encouraging immigrants to enter the country illegally. The public campaign launched against Annunciation House was intended to revoke their nonprofit’s license and shut down their shelter until a District Court Judge blocked the Attorney General’s subpoena and rebuked him for his unreasonable demands. Annunciation House continues with overwhelming support from local and state leadership but their legal challenges continue.

The fifth category of repression, spaces of dialogue under pressure, pertains to the capacity of nonprofits to advocate for their constituencies and their missions, which is constrained as other forms of state repression have stripped away public trust. Moreover, the political narrative of “immigrants as a criminal invasion” has such force that few organizations would risk posing an alternative perspective. One executive director said, “It is nearly impossible to challenge the state’s narrative right now. Nobody wants to not look strong on the question of the border.”

When queried as to how they are responding to state repression, executive directors noted that they have changed their websites, removed photos and contact information for staff, leaving only a general contact number. They are encrypting emails and choosing phone conversations over texts to remove client communication from possible scrutiny. Their services and advocacy are defensive and focused on the prevention of extreme legislation.

In conclusion, the state of Texas is engaged in an aggressive war against immigrant-serving nonprofits employing their administrative capacities, the media, and the courts, with the intention of delegitimizing them and restricting their capacity to serve immigrants. Two significant dynamics merit further scrutiny. First, state actions have reduced the interest and capacity of local government to partner with immigrant serving nonprofits. These partnerships have been pivotal for local governments’ capacity to understand and serve residents.

Second, the tactic of state-initiated judicialization to shut down dissent has proven a powerful tactic for limiting civic space. In hybrid democracies, judicialization is a common tactic used by nonprofits to draw media attention to state misuse of power. In the US, nonprofits and local governments have been coerced into compliance or silence out of fear of lawsuits. While U.S. courts ostensibly provide some recourse through appeal, they are an unlikely avenue for resolution. The state has become emboldened in its rollback of legal rights with both nonprofits and local municipalities precisely because extreme measures have been supported by the appellate courts and the Fifth Circuit Court of Appeals that oversees federal litigation coming from Texas.

What these trends may mean for nonprofits

In the US, state governments are the nexus for democratic backsliding because they are uniquely positioned. They have the constitutional authority to define the rights of citizens and over the past decade, they have emerged as key actors shifting national policy to the right in a gridlocked federal system. Several of the laws identified in this research are in litigation under constitutional challenges, especially for being overly vague on civil liberties. But many observers believe they were written to be deliberately ambiguous in wording. Legal observers note that the real political strategy may be to confuse political adversaries, encourage self-censorship, and chill associational activity and free speech regardless of the outcome of legal challenges.  In such circumstances, a natural reaction by nonprofit leaders would be to take more decision-making out of public view. Given the extremely strong normative expectation of transparency in U.S. nonprofit behavior, this outcome would be concerning.

These state trends may already be sending philanthropic resources in new directions and putting new demands on donors. Another possible outcome is a greater temptation toward mission drift as nonprofits focus on self-defense advocacy. To conclude, we note that punitive state actions can have a chilling effect on nonprofit activity far broader than the targeted organizations. This impact on the nonprofit sector has been seen in the U.S. before, such as through the McCarthy era, the Civil Rights era, and the post-9/11 crackdown on charitable Muslim organizations. It deserves a more serious look today as well.

–Beth Gazley and Jennifer Alexander

Beth Gazley is Emeritus Professor of Public and Environmental Affairs at Indiana University Bloomington. She specializes in U.S. nonprofit management and civil society policy. Jennifer Alexander is Associate Professor in the College of Health, Community and Policy at University of Texas at San Antonio. Her research has focused on the role of nonprofits in supporting democracy, civil society, and administrative responsibility.