Do Federal Courts REALLY Intend To Dodge VDARE’s 1A Smoking Gun AGAIN?

REPORT FROM VDARE’s LAWFARE HELL:

The story to date:

The VDARE Foundation just got yet MORE bad news in its lawfare hell, which has now lasted nearly four and a half years. (Litigation costs forced us to suspend posting on the VDARE.com website in July 2024).

U.S. Federal Judge Mae D’Agostino (Biden appointee) ruled on September 10 that she must “abstain” from addressing VDARE’s free speech claims. This is a judicial trick whereby the federal courts punt matters over to the states to let them do the dirty work of thwarting constitutional rights.

D’Agostino completely ignored what we’ve called the Smoking Gun: new video evidence of one of New York Attorney General Letitia James’ thugs openly boasting that he intended to get around our First Amendment rights.

This means we will have to appeal, to U.S. Court of Appeals for the Second Circuit.

And it means that NYAG James’ litigation against us in New York State court grinds on—inflicting further ruinous expense upon the VDARE Foundation; and upon my family.

It was always obvious that NYAG James’ massive “investigation” of the tiny VDARE Foundation was simply aimed at suppressing our First Amendment-protected criticism of America’s post-1965 immigration disaster. Why else would she inflict outrageous $1-2 million “investigation” costs (depending how you count pro bono help) upon our organization before even us suing us about anything?

(Note that even now she has sued only us over civil complaints focused on alleged paperwork issues. She is not alleging any crimes).

But then we got irrefutable proof of James’ malign intent. A journalist friend found a YouTube video of New York State Assistant Attorney General Rick Sawyer, who seems to be James’ chief enforcer against the VDARE Foundation, boasting to the November 2022 Anti-Defamation League “Taking Hate To Court” conference that, while “Hate Speech” a.k.a. us was Constitutionally protected, state Attorney Generals offices can use their subpoena powers to suppress it—without even securing a judgement: “Putting people through the ringer like that really, really makes them think twice about acting out [a.k.a. speaking out] in the public sphere.”

It’s 31:16-32:44 on the full video linked above, clip below:

Here’s the transcript:

RICK SAWYER:

Hate’s protected in in the United States Constitution, the First Amendment protects Hate, Hateful Speech, it protects Hateful Thoughts.

What this these kinds of lawsuits help do, is show you the lines that you have to color in if you want to be doing these kinds of dog whistles [a.k.a. exercise your free speech rights] and that itself, I think is, I mean I think you [Jordan Matthews, Jones Day partner, previous speaker on ADL panel] put it probably better than I’m about to, but that itself is an accomplishment, where you say— you’re corralling what people are allowed to do and what people think that they’re allowed to do. [And say]

And there’s also the question of specific deterrence, the deterrence against the individuals who are actually being sued.

Because, you know, even if you don’t end up with a $14 million judgment at the end of the day, the lawyers in the room know that it sucks to get sued—not for the lawyers but for their clients!

It’s massively expensive, it opens your whole life up to Discovery, it can ruin your credit, it can ruin, you know, your opportunity to do a lot of things that you would otherwise be doing with your time [emphasis added—a.k.a. publishing articles documenting America’s post-19965 immigration disaster] when you have to respond to Discovery requests, get ready for depositions, testify uh etc.

So, you know, putting people through the ringer like that really, really makes them think twice about acting out [a.k.a. speaking out] in the public sphere…

Sawyer went further in his conclusion—51:20 in full video above, clip below:

Here’s the clip:

And here’s the transcript:

RICK SAWYER:

I can speak a little bit about Attorney Generals’ offices.

So Attorney Generals’ offices have a massive amount of power within their jurisdiction. So in New York we have we have subpoena authority for any kind of hate crime that’s under section 79n of the Civil Rights law, we have subpoena authority against charities, we have subpoena authority against any business that’s engaged in business in in the State of New York.

And this is all before we even file a lawsuit [emphasis added], by the way, for people who aren’t lawyers.

So we can get massive amounts of Discovery without even having to go to court.

And so you know that’s part of our unique role. We have the opportunity to do massive investigations into organizations that are, you know, sham charities [that’s us!—VDARE Foundation is a 501©(3) charity] that are that are advancing, you know, Hate Speech we can look into groups that are making money off of Hate, and we can look it into individuals who’ve committed acts of “Hate Crime” [needless to say, the VDARE Foundation has never been never associated with any kind of “crime,” let alone “Hate Crime”—but, throughout this ADL conference, speakers use “Hate Speech” and “Hate Crime” interchangeably]—without even going to court [i.e. state Attorney General commissars can act unilaterally, without any kind of oversight].

And we can enter into creative settlements [we’ve not been offered any “creative settlement” yet, but it will probably involve handing over the Berkeley Springs Castle, although it is a separate West Virginia charity], like we were discussing earlier today, before even filing a lawsuit.

So, you know Attorney Generals’ office, I would say, are an untapped resource in this in this area.

A lot of our offices are waking up to the power we have. I’ve been working with Attorney Generals’ offices across the country to kind of develop capacity in this area [i.e. Democrat State Attorney Generals are conspiring against America patriots’ Civil Rights].

And it’s something where you [ADL conference attendees] as voters and constituents can keep pushing forward.

This is the Smoking Gun. In fact, it’s a Smoking Cannon. Sawyer explicitly says he intends to get around First Amendment protections for “Hate Speech” (i.e. speech he and Letitia James don’t like) through abuse of his subpoena power— “putting people through the ringer like that really, really makes them think twice about acting out [a.k.a. speaking out] in the public sphere.”

Tellingly, the VDARE Foundation appears to be the only 501(c)(3) charity that the New York Attorney General has announced suing since Sawyer’s 2022 rant. He was talking about us.

This is particularly remarkable because New York City’s own Department of Investigations has identified homeless charities fraud in the state involving tens of millions of dollars—extracted from taxpayers, not donated by private individuals as in the case of VDARE. Yet none seem to have been prosecuted. Whistleblower Daniel Wiesenfeld specifically criticized the lack of action against “rampant nonprofit homeless shelter fraud” in his celebrated recent email [NY prosecutor claims Letitia James’ office directed him to target Trump| Agency-wide email sent by assistant attorney general to hundreds of colleagues was quickly deleted from state computer servers, by Brendan J. Lyons, Albany Times-Union, August 29, 2026). (Not surprisingly, given James’ blatant assault on Trump’s civil rights, Wiesenfeld has been subsequently interviewed by federal prosecutors Fed investigators met with Tish James whistleblower who claimed he was pushed to dig up dirt on Trump: sources, by Jorge Fitz-Gibbon, New York Post, September 2, 2026)

The ADL has been gunning for VDARE for a long time. In 2021, we featured in an article it published claiming that “Extremist and Hate Groups May be Abusing Non-Profit Status,” obviously aimed at inciting the federal Internal Revenue Service against us. In 2022, according to a spokesman for its Center on Extremism, it made a “formal complaint” to New York Attorney General Letitia James, urging her to proceed against us.

The VDARE Foundation made a genuine effort to comply with NYAG James’ June 2022 subpoena demands. It raised the First Amendment issue in federal court only in December 2022, when it became obvious she was not acting in good faith.

James’ response: to ask for a delay because of COVID and Christmas. Then, in a characteristic violation of legal ethics, she used the time to file in New York State Court. And with lightning speed, which has proved to be her pattern, Judge Sabrina Kraus

[Credit: Law.com]

ruled in favor of NYAG James’ motion to compel. This enabled Federal Judge Frederick J Scullin to dodge our entire First Amendment issue on res judicata grounds i.e. the case was already being adjudicated in state court.

Of course, we appealed Judge Scullin’s decision.

And we attempted to introduce as evidence Sawyer’s Smoking Gun, which we had only just discovered.

But the federal appeals court rebuffed our attempt to introduce this Smoking Gun—without explanation.

Then, on December 17 2025, appeals court Judge Richard J. Sullivan again used the res judicata excuse to wriggle out of facing our First Amendment claim.

One commentator thought VDARE had inadvertently established an important precedent.

The (India-based!) legal research platform CaseMine drew this helpful moral:

Organizations facing politically sensitive investigations (for example, groups accused of “hate speech,” controversial religious or political organizations, or groups with contentious fundraising practices) must now recognize that comprehensive, well‑developed constitutional arguments should be presented in the initial state subpoena proceeding. Holding back for federal court is risky: if the state court rules, federal claims based on the same transaction will likely be precluded.

When State Subpoena Proceedings Bar Federal First Amendment Suits: Claim‑Preclusion in VDARE Foundation, Inc. v. James (2d Cir. 2025): 2d Cir. CaseMine, December 12, 2025.

Great. CaseMine’s conclusion is exactly the opposite of what our understanding of correct procedure was. We understood some compliance with the state subpoenas would demonstrate good faith and present a better posture when we did have to fight on First Amendment grounds.

(CaseMine also displays touching faith in the impartiality of New York State courts. President Trump would not agree).

Nevertheless, James’ suing the VDARE Foundation and Lydia and myself personally in September 2025, changed the situation completely.

Now we could litigate in Federal court to defend our First Amendment rights directly—unimpeded by the New York State court’s attempt to create a res judicata excuse derived from the previous dispute about abusive subpoenas.

Finding for the VDARE Foundation on First Amendment grounds—of which the scandalous boasting of NYAG thug Rick Sawyer is irrefutable proof—would have ended our Letitia James nightmare at a stroke.

Which is why signs that the Federal courts are again trying to evade Sawyer’s incriminating assertion are so ominous.

Needless to say, as a journalist for more than fifty years, I am stunned by this utter indifference to the underlying principle of free speech—which has been described as “The Indispensable Right.”

SAWYER.

BOASTED.

HE.

COULD.

GET.

AROUND.

“HATEFUL.”

“SPEECH’s”

FIRST AMENDMENT.

CIVIL.

RIGHTS.

PROTECTION.

BY.

LEGAL.

HARRASSMENT.

· How much more explicit about attacking First Amendment Rights could Sawyer get?

· Is there anything more important than government suppression of speech? (Paging The Indispensable Right author Prof. Jonathan Turley).

And the Federal judiciary doesn’t care?

An even more ominous development: New York is a one-party Democrat state. We have concluded that’s a problem.

But at the Federal level we’ve now met several fairly orthodox Republican judges.

And, distressingly, they’ve all been useless. All appear to be completely intimidated by the reputation of the Big Bad VDARE.

Any imputation of White Nationalism, however inaccurate, is apparently lethal, although it’s not illegal (yet).

So what now?

We just don’t know. It partly depends upon how much of New York taxpayers’ money Letitia James want to spend on litigating against us, more than two years VDARE.com suspended publication.

The answer appears to be: a lot.

This is not our only terrible recent experience in the hydra-headed world of Leftist lawfare.

I’ll be issuing more bulletins when I can face it.

It is, however, the most serious. This is the most dramatic evidence of conspiracy to violate our First Amendment rights. And we know that, if the Federal Courts will not stop Letitia James’ lawfare, we have absolutely no hope of justice in New York State courts—Prof. Turley has called New York State “The Land That Law Forgot.”

FYI: I think the most comprehensive explanation of VDARE’s torturing to death by lawfare is still this, from May 2023. A list of subsequent turns of the screw through March 2025 can be found here. Lydia’s April 2026 summary is here. The best (and in fact only) MSM account of this atrocity is Why Is New York’s AG Targeting a Castle in West Virginia by James Varney, Real Clear Investigations, October 28, 2025.

A real bright spot in our lives has been continuing support from VDARE.com’s loyal readers and friends.

You can give to the VDARE Foundation here. (Because of Letitia James’ persecution, the Foundation can no longer accept donations from New York State residents).

You can give to the Brimelow family’s legal defense here. (New York State residents welcome).

(I launched this personal appeal at Christmas. Daughters now eight months taller!)

Lydia and I send you our profound thanks.

A final note: my observation as a cynical layman is that judges are not swayed by considerations of law, or fact, or common decency.

They are, however, swayed by public pressure. I urge all our friends, and in fact any friend of free speech, to spread the news of this atrocity as widely as possible.