Federal lawsuit challenges HSI warning notice sent to New York man over January email to ICE official

Lawsuit says warning notices systemically chill protected speech

A lawsuit filed Monday in U.S. District Court for the District of Columbia by the nonprofit Foundation for Individual Rights and Expression argues that David Streever’s January email to then-acting ICE Director Todd Lyons was protected speech under the First Amendment and that the federal agents’ response — and the actions of their superiors — violated his constitutional rights.

“FIRE’s lawsuit says the First Amendment protects Americans’ rights to speak out against police but says the Department of Homeland Security is actively threatening that freedom, tracking down and retaliating against speakers like Plaintiff David Streever because he exercised his fundamental right to criticize one of the highest-ranking law enforcement officers in the United States,” according to the complaint. The suit says, “Our Constitution does not tolerate such a brazen abuse of authority.”

Streever wrote the three-paragraph email on Jan. 26, after federal immigration officers in Minneapolis fatally shot two U.S. citizen observers during the immigration enforcement surge there. The email, with the subject line “What’s next,” compared Lyons to a Nazi and predicted that Lyons would be tormented by his own conscience, according to NPR.

Five months later, on June 23, two HSI agents arrived at Streever’s Rochester home while he was traveling with his 7-year-old daughter. His wife received a form labeled “WARNING NOTICE” that said “YOU MAY BE IN VIOLATION OF FEDERAL LAW” and described laws that make it a crime to threaten federal officials. The notice said ICE’s Office of Professional Responsibility had identified the email and “is requesting that you promptly remove and/or discontinue the aforementioned behavior.” The bottom of the form said, “Receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above.”

Streever and his daughter were returning from a trip to a Finnish theme park. After landing at John F. Kennedy International Airport in New York two days later, they checked into a nearby airport hotel. That evening, the hotel front desk told Streever that a federal agent from DHS had come looking for him and left a business card. Streever’s wife had not told the agents which hotel he was staying at, according to the lawsuit.

“Like many Americans, I was deeply upset after the shootings in Minnesota and I felt compelled to do something,” Streever said in a statement. “Writing an email to the head of ICE seemed like the least I could do to express my sense of outrage. I never dreamed it would lead to a knock on my door by federal officers or descending on my hotel in the dark of night.”

The lawsuit names three federal agents who tried to contact Streever as defendants, along with Secretary of Homeland Security Markwayne Mullin and other ICE officials. The suit argues that the agents’ actions have caused Streever to self-censor his views and asks the court to bar the defendants “from taking any further actions, formal or informal, to coerce, threaten, retaliate against, or intimate repercussions directly or indirectly to Plaintiff Streever for his protected speech and petitioning activity.” The suit also asks the court to declare that the warning notices federal agents have been issuing “are sufficient to chill free expression protected by the First Amendment.”

“ICE’s issuance of formal ‘WARNING NOTICE’ documents to critics who engage in protected speech — and its decision to have federal agents deliver those warnings in person — can have only one purpose: to systemically chill ICE’s critics and coerce them into silence,” the lawsuit reads.

Neither ICE nor DHS immediately responded to a request for comment, according to NPR. Last week, DHS provided NPR with a statement that said, “ICE investigates all credible threats towards its employees and officers, including threats to the ICE Director. As a matter of policy, we do not comment on any ongoing investigations.”

Adam Steinbaugh, senior attorney at FIRE, said in a statement that the delayed response undermines the investigation’s credibility.

“If someone is really threatening a government official, you don’t wait five months to act on it,” Steinbaugh said. “The fact that authorities didn’t respond immediately shows that David presented no threat. This pursuit is designed to intimidate lawful speech, pure and simple.”

On the same day agents contacted Streever, they also confronted Paigelynne Gonyea, a Syracuse resident who was working at a polling place for the New York primary election. MSI previously reported that two federal officers confronted Gonyea about an Instagram post she had made five months earlier. While Gonyea was at the polls, an HSI agent left her a voicemail saying the agents had visited her former apartment and were calling “in reference to a post that we believe you made on Instagram where you doxxed an ICE agent back in January.” Doxxing typically refers to releasing sensitive personal information online.

Gonyea called the agent back. She told NPR that the agents wanted her to come outside, but she told them to speak with her inside the polling place during a lull in voters. Local election officials later said the federal agents should not have entered the polling place, as police are not supposed to enter such locations unless there is an emergency, and a recently enacted New York law bars federal immigration officers from voting sites.

Video captured by fellow poll workers showed two agents with badges speaking with Gonyea inside the library and delivering a warning notice that said her Instagram account may have violated the law. Gonyea said the agents confirmed the post was about Jonathan Ross, the ICE officer who fatally shot Renee Macklin Good in Minneapolis, but she denied that she had ever doxxed Ross. Gonyea said she thought the agents were referring to a post that identified Ross by name, as the Minnesota Star Tribune had reported, and called for his indictment — a post that remained visible on her Instagram account.

After NPR and other outlets reported the encounter, DHS released a statement saying Gonyea “committed a federal crime by posting the address of an ICE law enforcement officer online.” The statement said, “Doxxing federal law enforcement officers is a federal crime that puts their lives and their families in serious danger. If you doxx our officers, we will investigate you, and you will be brought to justice.”

DHS did not respond to NPR’s request for evidence that Gonyea had doxxed Ross. The department shared with the Associated Press a redacted screenshot taken from a cell phone showing a different Instagram post that looked like it was posted from Gonyea’s account. The post showed a photo of Ross with text that read, “The killer’s name is Jonathan Ross of” followed by redacted text. The post did not appear on Gonyea’s current Instagram account. Gonyea told NPR she reviewed the screenshot but did not believe she had posted it.

“Based on everything I know, I do not believe that I made that post, and I have no independent recollection of ever creating or publishing it,” she told NPR. “There is additional context that I believe is important, and I look forward to addressing those matters through the appropriate process rather than in the press. What has not changed is my concern about the broader constitutional issues raised by my experience, including free speech, due process and government accountability.”

Steinbaugh told NPR that a social media post sharing a person’s address alone is not a criminal offense. “What the law criminalizes is publishing an address or sharing an address with the intent to convey a threat,” Steinbaugh said. “So if you post an address and say, ‘Hey, gang, at 5:00 tonight, we’re going to all meet up here with our pitchforks and torches,’ that puts you more in the ballpark of a threat.”

He said some social media posts that publicized Ross’s address were part of a broader public debate about whether federal immigration officers can wear masks and refuse to identify themselves, “and essentially acting almost as a secret police.” Steinbaugh said that for that reason, some posts sharing information about Ross were a form of protest. “People might think that that is speech that people should not engage in, but it’s still protected and it can’t be criminalized,” he said.

Gonyea and Streever are the first two people who have made public that they received warning notices from Homeland Security agents about their online communications.