Federal judge finds First Amendment injury in ICE warning notice case

Preliminary injunction cites ‘sword of Damocles’ threat to political speech

A federal judge ruled Tuesday that the Department of Homeland Security and U.S. Immigration and Customs Enforcement cannot take further steps against a Rochester, New York man they tracked to his home, an airport and a hotel to confront him about a harsh email he sent to ICE’s former acting director. The preliminary injunction, reported by NPR, halts the agencies from acting on a warning notice they served David Streever earlier this year.

Streever filed the lawsuit in July arguing that ICE agents had violated his First Amendment rights by attempting to track him down at his home, an airport and a hotel to serve him with a warning notice. The notice stated “YOU MAY BE IN VIOLATION OF FEDERAL LAW” and listed federal statutes that make it a crime to threaten federal officials. The bottom of the form read: “Receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above.” Streever told NPR he sent the email after federal immigration officers fatally shot two observers in Minneapolis in January.

The email compared Lyons to a Nazi, called him a “monstrous human being” and predicted he would be tormented by his own conscience, according to NPR. Streever is represented by the Foundation for Individual Rights and Expression, a nonprofit free-speech group.

In his ruling, Contreras wrote that Streever had likely already suffered a First Amendment injury. “Mr. 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,” the judge wrote. He added that because the federal government had likely already infringed Streever’s First Amendment rights, a preliminary injunction was warranted while the case continued so that Streever could continue to speak freely.

The order blocks DHS and ICE from “taking further steps in reliance on the Warning Notice…and from issuing any substantially similar threats to [Streever] aimed at his protected expression during the course of this matter,” according to NPR’s account of the ruling.

In a statement, Streever said he was “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.” He added that he hoped the incident would “serve as a reminder that the First Amendment protects us all.”

DHS did not immediately respond to a request for comment. In court filings, the agency defended its investigation by citing an increase in threats of violence against public officials. The federal government had argued that Streever’s case should be dismissed and said the investigation into him was closed in late June, before he filed suit. The federal filing did not assert that Streever’s email was a violent threat that could be prosecuted. Contreras asked the government to turn over the report that closed its investigation.

FIRE Senior Attorney Adam Steinbaugh said: “ICE knowingly pursued an American citizen for criticizing his government — speech that is at the heart of the First Amendment.” Steinbaugh added: “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.”