The Federal Bureau of Investigation (of protected speech)

Last Monday, FBI Director Kash Patel announced an investigation into Signal group chats that Minnesotans are using to track ICE activity. Independent journalist Cam Higby spurred the move with an X thread that appears to show users of the encrypted messaging app reporting ICE sightings and sharing license plate numbers of agency vehicles. What the thread doesn’t show is evidence of a crime.

Patel claimed sharing such information is illegal if it “leads to a break in the federal statute or a violation of some law,” adding, “you cannot create a scenario that illegally entraps or puts law enforcement in harm’s way.” Border czar Tom Homan sounded even more certain. Asked about the chats later that week, he said, “I’m not going to show our hand. But they’ll be held accountable. Justice is coming.” 

But speech does not lose constitutional protection simply because it might lead others to break the law. That was true when progressive commentators warned about “stochastic terrorism” — the idea that conservative rhetoric on hot-button issues incites violence against minority groups — and it’s true now. There isn’t even evidence in the leaked Signal chats that anyone did use the information to commit a crime. 

Consider the relevant First Amendment exceptions. True threats are serious expressions of intent to physically harm a specific person or group. Incitement is speech intended and likely to produce imminent lawless action. Conspiracy consists of an agreement to commit a specific crime and an overt act toward carrying it out. Aiding and abetting involves intentionally and substantially assisting a specific criminal act. None of these categories covers the mere sharing of information that others can use — and have been using — for lawful purposes, such as protesting, observing, or documenting public law enforcement activity. Higby’s X thread shows nothing more.

As the Supreme Court put it, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Of course, anyone who assaults a federal agent or physically interferes with an enforcement operation can and should be prosecuted. But, absent evidence of conspiracy or aiding and abetting, as those terms are actually defined under the law, that crime does not retroactively strip speech of First Amendment protection. Google Maps isn’t culpable if someone uses it to vandalize an ICE facility or an abortion clinic. 

What they’re actually doing is taking words that sound like they describe crimes and quietly stretching their meanings until they cover a wide range of protected activity.

It’s possible to imagine circumstances in which anti-ICE activists’ speech would lose constitutional protection. For example, if two people share an ICE agent’s whereabouts and agree to meet there to assault the agent, then start taking action toward committing that crime, they would be guilty of conspiracy. Outside such narrow circumstances, however, the First Amendment protects sharing information about law enforcement, much as millions of drivers do every day when they report police locations on apps like Waze.

These First Amendment exceptions are narrow and precise by design. They capture a sliver of speech that is inseparable from criminal conduct, without giving the government sweeping power to suppress dissent.

The FBI’s investigation fits a broader pattern. The Trump administration has repeatedly threatened to go after Americans for protesting, monitoring, or speaking about immigration enforcement. Officials frame these threats as crackdowns on “doxxing,” “impeding,” or “obstructing” federal agents. What they’re actually doing is taking words that sound like they describe crimes and quietly stretching their meanings until they cover a wide range of protected activity, hoping that the scary labels will blunt any pushback or skepticism.

This tactic is an example of what my colleague Angel Eduardo calls “linguistic parasitism” — the “stealth-redefinition or expansion of a word, phrase, or concept’s meaning while seizing upon its common meaning to elicit the desired response.” But this administration isn’t eliciting the desired response from civil libertarians. Every time an official says “doxxing” or “impeding,” I hear the voice of Inigo Montoya: “You keep using that word. I do not think it means what you think it means.” When you drill down, you realize these accusations often refer to activities like filming ICE agents and posting photos and videos of them online.

A month after President Trump’s inauguration, Homan asked the Justice Department to investigate Rep. Alexandria Ocasio-Cortez for “impeding” law enforcement by releasing a webinar and flyer explaining people’s constitutional rights during ICE encounters. Last July, after CNN reported on ICEBlock — an app that lets users report ICE sightings due to concerns over the agency’s “alleged civil rights abuses and failures to adhere to constitutional principles” — Homan again urged DOJ to investigate whether CNN was illegally impeding law enforcement by reporting on the app. ICEBlock itself later disappeared from the App Store, and Attorney General Pam Bondi acknowledged that the DOJ has “demanded” the tech company remove it — a textbook example of jawboning.

In August, ICE tagged the Department of Justice in a repost of Libs of TikTok’s post accusing Connecticut Rep. Corey Paris for “doxxing ICE’s live location” and demanding prosecution. What had Paris done? He announced on Instagram that he received reports of ICE activity in his district and urged residents to “remain vigilant” and “seek out trusted legal and community resources if needed.” Paris ultimately was not charged with a crime for noting that law enforcement activity was taking place somewhere in a 2.5-square-mile area. 

This isn’t just about opposition to ICE. It’s about the right of every American to criticize, discuss, protest, observe, and document what the government is doing.

Given this pattern of  threats and rhetoric, it’s no surprise that incidents keep emerging in which federal agents confront and threaten protesters and observers for exercising their First Amendment rights. In one recent video, a masked ICE agent told a woman recording him that he was photographing her car because “we have a nice little database and now you’re considered a domestic terrorist.”

Maybe the FBI’s Signal investigation will quietly fade away. But the chilling effect will remain. It was bad enough when, during Joe Biden’s presidency, the FBI pressured social media companies to censor protected speech deemed dangerously misleading. Now the bureau is treating protected speech on an encrypted messaging app as grounds for criminal investigation. 

This isn’t just about opposition to ICE. It’s about the right of every American to criticize, discuss, protest, observe, and document what the government is doing, regardless of who is in power or what the cause is. 

The government can punish violence. It can punish actual obstruction. What it cannot do is erase the line between criminal conduct and free speech. Once that line disappears, no one’s rights are safe.