When ICE Chills Speech: Lawsuit Challenges Playbook for Silencing Online Critics

Imagine you’re at home or work and agents from Immigration and Customs Enforcement (ICE) arrive. They hand you a warning notice informing you that a social media post you made or a hostile email you sent following the January killings of Renee Good and Alex Pretti may violate federal law by threatening or doxing federal officials. The notice also requests prompt removal and discontinuance of your speech and includes a space for acknowledging receipt, although you aren’t forced to do so. Would this deter you from speaking out online again against ICE? Do ICE’s in-person warning procedures under those facts—ones closely tracking two actual incidents in June—violate your First Amendment rights, even if you aren’t arrested? In short, would they create a chilling effect that leads you into silence—self-censorship—despite believing your words were lawful political expression and not a true threat falling outside of constitutional protection? Those questions and concepts are key in the federal case of Streever v. Mullin filed this July in Washington, DC. It focuses on the back end of what seemingly is the Trump administration’s identify-surveil-confront playbook for squelching online speech (or silencing platforms and apps that convey it) about ICE that it doesn’t like or considers illegal. The playbook’s front end (beyond this post’s scope) involves unmasking the identities of anonymous critics on social media platforms via administrative subpoenas and grand jury proceedings and monitoring their social media activity, as I’ve described. Streever pivots on a blisteringly harsh yet politically passionate email that US citizen and Rochester, New York, resident David Streever sent to Todd Lyons, then ICE’s acting director, using Lyons’s “publicly available government email address.” Streever transmitted the email on January 26, after Goode and Pretti were killed. The opening three sentences of Streever’s seven-sentence email convey its gist: You are a monstrous human being and will go down in history as America’s Reinhard Heydrich, the butcher. The way you are protecting the obvious execution in Minnesota, even as we see the videos, will lead to your downfall. Even Trump will turn on you before the end, and you will be a sad, despised man who eats himself alive with shame at your own pathetic weakness. According to Streever’s lawsuit, five months passed before two ICE special agents showed up at his Rochester home on June 23 and learned from his wife he was traveling in Europe with his seven-year-old daughter. They left an unsigned warning notice of the kind described earlier. It begins with an all-capitalized, bolded, and underlined message: “YOU MAY BE IN VIOLATION OF FEDERAL LAW.” The warning notice states that ICE’s Office of Professional Responsibility “has identified an email sent to . . . Todd Lyons, which it has reason to believe may constitute a violation of” a federal statute making it a crime to threaten a federal official. The notice also requests “that you promptly remove and/or discontinue the aforementioned behavior.” Upon arriving back in the US at John F. Kennedy International Airport, Streever and his daughter checked into a New York City hotel. According to the lawsuit, a special agent from the Department of Homeland Security’s Homeland Security Investigations office appeared there that night “looking for Streever,” leaving his business card with a hotel clerk to give to him. Furthermore, “that [same] evening, Streever also received two voicemails from callers—one male, one female—who did not provide their names and identified themselves only as ‘Homeland Security Investigations.’” Key arguments in Streever’s complaint are that (1) his email to Lyons constitutes “core political speech” protected by the First Amendment, not an unconstitutional true threat; (2) the government “lack[s] any lawful basis to order Streever to cease his protected speech on matters of public concern”; and (3) the warning notice and ICE’s accompanying actions, such as tracking Streever “down to his home and his hotel,” are unlawful efforts to coerce him into silence by threatening potential adverse consequences if he doesn’t. At bottom, the complaint pushes back against fear and intimidation tactics—ones that might prove sufficient “to silence and chill protected speech” without needing to formally arrest and charge someone. Why prosecute online critics if you can just jawbone and scare them into muteness? The broader danger here is profoundly troubling. As Greg Lukianoff, president of the Foundation for Individual Rights and Expression, which represents Streever, recently wrote: “The purpose of the government’s intimidation tactics is clear: not only to terrorize the immediate critic into silence but also to send a message to others. In other words, to build the foundation of a police state.” Lukianoff emphasized that “the Constitution protects the people’s right to criticize the government, whether by writing an email or posting to social media.” Streever v. Mullin puts that principle to the test as the midterm elections draw near.