Rochester, New York resident David Streever was angry following the ICE killings of Renee Good and Alex Pretti, and let Acting ICE Director Todd Lyons know.

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.

You will never know peace. You will seek to lose yourself, to escape the burden
of knowing the truth about yourself. But wherever you go, you will find yourself.
You will torment yourself until your last day on Earth.

Strong words that conveyed strong feelings, which is exactly what the First Amendment is supposed to protect. That didn’t stop ICE agents from going to Streever’s home to issue him a “WARNING NOTICE”* that his email could land him in prison.

Federal agents had delivered a written warning notice in June to the home of the man, David Streever, informing him that he “may be in violation of federal law” and directing him to stop criticizing the acting director of the Immigration and Customs Enforcement agency.

Since when does criticism of a public official become a violation of federal law? If you have to ask that question, you neither know ICE nor the sensitivity of Trump administration officials.

In court documents, the government confirmed that ICE agents are authorized to issue a warning notice letter if someone “may” have violated federal law. As Streever’s experience shows, that means ICE can issue coercive demands that its critics “promptly remove and/or discontinue” their speech or risk “federal and state prosecution” — even if their speech is wholly protected by the First Amendment. In court, the United States government did not even attempt to argue Streever’s speech was an unprotected “true threat.”

So if it’s not a “true threat,” which it clearly wasn’t, what basis existed for ICE to threaten Streever?

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

In other words, whether ICE’s warning violates the First Amendment or not, it’s worth doing to silence its critics and chill others who might consider criticizing officials. After all, who wants to be prosecuted? Who wants to be put into the position of defending themselves against the government, even if they’re in the right? It can be costly and no matter how wrong the government might be, there’s no guarantee of winning.

Fortunately for Streever, the Foundation for Individual Rights and Expression, FIRE, took up his cause. District of Columbia Judge Rudolph Contreras held that ICE’s effort to silence Streever violated his constitutional rights.

“Americans have long voiced their displeasure with their government,” the ruling began.

“Today is no different,” the judge later wrote, adding, “What is different is how the government responded in this case.”

Big win, right? Well, yes it is, at least as to the establishment of Streever’s right to send Lyons (or anybody else at ICE or in the Trump administration) emails that hurt their feelz. But to what end?

Mr. Streever has a right to express his political views through non-threatening speech, however degrading the speech might be. Because Defendants have likely infringed on that right by threatening Mr. Streever that if he did not discontinue his criticism of government officials he might be prosecuted, the Court will grant Mr. Streever a limited preliminary injunction to preserve his ability to exercise his constitutional rights while this case proceeds.

So rights have been violated, and the judge issued a preliminary injunction prohibiting ICE from engaging in further constitutional violations against Streever? In other words, the law already prohibits ICE from doing what it did, and now there’s a preliminary injunction saying the court really means it? But there’s more.

The Court is mindful of Defendants’ concern for the marked rise in threats against law enforcement and public officials, part of a concerning trend in recent years. The Court has
therefore narrowed the requested preliminary relief to permit Defendants to conduct investigations into future conduct to ensure the safety of law enforcement and public officials so long as they do not issue threats to Mr. Streever deterring protected speech, such as the Warning Notice.

What this means isn’t entirely clear. Is the court giving ICE permission to engage in the same unconstitutional conduct as long as Streever isn’t the target? Does the “marked rise in threats” somehow vitiate the First Amendment’s protection of Free Speech, thereby empowering ICE to engage in “investigations” and issue threats even when the speech is fully protected?

Much as this was a huge win for FIRE and the First Amendment, it would seem that telling the government not to violate constitutional rights is definitionally redundant, and given what ICE did to Streever, Judge Contreras’ remedy is about as tepid as it gets, particularly since there is no viable cause of action to hold the federal government liable for their actions.

*The notice stated, inter alia:

This Notice officially informs you that it is unlawful to threaten to assault, kidnap, and/or murder a federal official or that federal official’s immediate family member with the intent to impede, intimidate, and/or interfere with the federal official’s duties or retaliate against a federal official due to the performance of their duties. 18 U.S.C. § 115(a). You are further advised that knowingly making restricted personal information about a covered person, or their immediate family member, publicly available with the intent to threaten, intimidate, or incite the commission of a crime of violence against the person; or with the intent and knowledge that the restricted personal information will be used to threaten, or intimidate, or facilitate the commission of a crime of violence against that person violates federal law. 18 U.S.C. § 119. Violations of these or related laws could subject you to both federal and state prosecution.

OPR has documented the delivery of this Notice to you. Receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above. If you wish to discuss this Notice and its contents further, please contact the undersigned Special Agent who served you with this Warning Notice or the local OPR field office.