A Federal Judge Enjoins DHS From Threatening To Prosecute a Critic for Constitutionally Protected Speech

On January 26, two days after Department of Homeland Security (DHS) employees fatally shot Minneapolis protester Alex Pretti, David Streever sent an angry email to Todd Lyons, then acting director of Immigration and Customs Enforcement (ICE). Streever called Lyons “a monstrous human being,” likened him to the genocidal Nazi official Reinhard Heydrich, and predicted that he would be haunted by “shame at your own pathetic weakness” in defending the Pretti shooting “until your last day on Earth.”

That message was surely intemperate and insulting, but it was not illegal. By contrast, a federal judge ruled on Tuesday, the DHS response—a “WARNING NOTICE” that two ICE investigators delivered to Streever’s home in Rochester, New York, five months later—likely violated the First Amendment by threatening him with retaliation for constitutionally protected speech.

U.S. District Judge Rudolph Contreras issued a preliminary injunction that bars the DHS from taking any action against Streever based on that notice and from “issuing similar warnings” that “suggest he cannot engage in non-threatening criticism of the government.” The order remains in effect while the case, Streever v. Mullin, is pending in the U.S. District Court for the District of Columbia.

“ICE knowingly pursued an American citizen for criticizing his government—speech that is at the heart of the First Amendment,” said Adam Steinbaugh, a senior attorney at the Foundation for Individual Rights and Expression, which represents Streever in his lawsuit against the DHS. “Ominous letters warning people their speech might land them in prison are meant to coerce people into silence, and that’s not how the First Amendment works.”

Although the government conceded that Streever’s email was protected by the First Amendment, it maintained that the ICE notice was merely an advisory that caused him no real harm. Contreras, a former President Barack Obama appointee, rejected that argument, noting the threatening implications of the document’s language.

“YOU MAY BE IN VIOLATION OF FEDERAL LAW,” said the notice, which ICE investigators Abbi Henry and David Brodie left with Streever’s wife on June 23 because he was traveling in Europe at the time. It cited two statutes, one dealing with threats of violence against federal officials, the other making it a crime to reveal “restricted personal information” about them with the intent to intimidate or incite violence against them.

Streever had not violated either of those laws. But the notice said ICE had “reason to believe” his email to Lyons “may constitute a violation of Title 18 of the United States Code,” which includes more than 1,500 offenses.

The document asked Streever to “promptly remove and/or discontinue the aforementioned behavior.” It added that “receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above.”

Given the reference to Streever’s email, the ICE “request” is “fairly read as a demand that [he] refrain from criticizing Acting Director Lyons,” Contreras writes. “The notice also warns Mr. Streever of the potential for prosecution….If that were not enough, the letter closes by telling Mr. Streever that ‘[r]eceipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above. The use of ‘continue’ implies that Mr. Streever’s email already exposed him to criminal liability and, critically, that any similar speech by Mr. Streever in the future will be viewed the same way.”

Since “political speech is not a crime,” the notice “is hardly a reminder to follow the law,” as the government maintained, Contreras says. “And because the Warning Notice speaks of ‘discontinu[ing]’ Mr. Streever’s political speech and threatens consequences if he ‘continue[s]’ to speak out, it represents a continuing, rather than a past, injury.”

Streever’s injury is “the loss of his freedom to engage in political speech now because
the threat of such an investigation or prosecution looms over him like the sword of Damocles, and he is forced to self-censor under that threat,” Contreras writes. “The Warning Notice works because Mr. Streever is too intimidated by the threat of future government action that he will not test whether the government will follow through on
its threat.”

ICE has deployed the same tactic against other critics. On the same day that Henry and Brodie visited Streever’s home, his complaint notes, they “confronted a Syracuse resident,” Paigelynne Gonyea, at a polling place where she was working as a volunteer and gave her a warning notice. Gonyea’s purported offense was similar to Streever’s. “The ICE agent who shot and killed Renee Good in broad daylight has been identified as Jonathan Ross by the Minnesota Star Tribune,” she had written on Instagram. “I think today is a great day for Jonathan to be indicted!”

ICE also has tried to unmask anonymous commentators who dared to criticize the agency on social media. The Wall Street Journal reports that ICE “has deployed a round-the-clock digital dragnet” that tracks online speech to identify more targets.

“I’m deeply relieved that the court affirmed what I knew all along: that I am permitted to speak my conscience in the United States of America, including when I criticize government officials,” Streever said. “While I wish this ordeal hadn’t happened, hopefully this incident will serve as a reminder that the First Amendment protects us all.”