Watch your backs. Watch your civil rights even closer.
ICE has changed tactics, The Washington Post reports. Where once the Department of Homeland Security (and ICE) focused on arresting immigrants already held in jails, they have shifted to snatching immigrants “on the streets and in communities,” according to its analysis of government data. The Post might simply have watched TikTok and X videos. That shift was apparent to anyone paying attention since ICE invaded Los Angeles. The government’s claim that it was targeting violent criminals, “the worst of the worst,” was always cover for indiscriminate deportation of anyone non-white and speaking with an accent.
Not only has DHS cast a wider ethnic cleansing net, the Department of Justice has broadened its definition of domestic terrorism to include average citizens who video arrests of their neighbors. But U.S. Border Patrol Commander Gregory Bovino showing up with film crews to record arrests of immigrants for propaganda purposes is perfectly fine.
Reason considers the implications:
As Bovino and the DHS have embraced the power of cinema to document immigration arrests and promote current policies, the Trump administration is also cracking down on individuals who choose to record immigration operations. In a December 4 memo, originally leaked by journalist Ken Klippenstein, the Justice Department encourages federal prosecutors to press “domestic terrorism” charges against people for “doxing” law enforcement officers. While undefined in the memo, “doxing” in this context is understood to mean the publishing of information that identifies law enforcement officers, which the Justice Department insinuates is a threatening activity used to “silence opposing speech, limit political activity, change or direct policy outcomes, and prevent the functioning of a democratic society.”
This definition mirrors previous statements by DHS officials earlier this year, including a statement made by Noem in July: “Violence is anything that threatens [agents] and their safety, so it’s doxing them, it’s videotaping them where they’re at when they’re out on operations.”
However, much of what the Trump administration tries to paint as the unacceptable “doxing” of law enforcement agents is often observers merely recording on-duty officers—an activity firmly protected by the First Amendment when no physical interference or danger is present, and an important tool for holding public officials accountable. By broadly defining domestic terrorism to include something as vague as “doxing,” the Trump administration has rolled out a “nationwide policy of intimidating and threatening people who attempt to observe and record DHS operations,” according to David Bier, the director of immigration studies at the Cato Institute.
Under such a broad definition, even the DHS’ own camera crews and media hired specifically to record and publish details of immigration operations could potentially be prosecuted for domestic terrorism. The only limiting factor in the memo seems to be whether the publisher is considered Trump’s political ally or opponent, i.e., an “Antifa-aligned extremist,” which the December 4 memo defines, in part, as someone with “extreme viewpoints on immigration,” such as “mass migration and open borders.”
Cato’s Walter OIson noted in October that DHS now considers videotaping of ICE agents illegal:
Writing in The American Prospect, Matthew Cunningham-Cook reports that in response to an inquiry from the Center for Media and Democracy, Department of Homeland Security spokeswoman Tricia McLaughlin said, “Videotaping ICE law enforcement and posting photos and videos of them online is doxing our agents” and added: “We will prosecute those who illegally harass ICE agents to the fullest extent of the law.”
Numerous reports from raid scenes suggest that ICE agents are already informally “enforcing” their disapproval of at-the-scene recording by shoving, beating and even shooting (with less lethal munitions) journalists, freelance photographers, and others with cellphone cameras. Bad things seem to happen especially often when persons who make a practice of filming raids are themselves noncitizens.
You know, of course, that this is bullshit, at least for Americans who still respect judicial rulings. Courts from coast to coast, allowing for reasonable exceptions, “typically have not gone along with claims that videotaping law enforcement crosses any lines.”
Fortunately, the courts aren’t on board with that sort of nonsense. While the Supreme Court itself hasn’t yet faced the issue squarely, the seven federal circuits that have done so—the 1st, 3rd, 5th, 7th, 9th, 10th, and 11th—all agree that the First Amendment protects the right to record police performing their duties in public.* Those circuits cover such populous states as California, Texas, Florida, Illinois, New Jersey, Georgia, and Pennsylvania.
“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.”
Prohibiting documentation of arrests on “the mere speculation that some third party will misuse it isn’t enough to defeat the obvious and systematic public interest in enabling effective public oversight of police operations and in controlling police misbehavior.”
Olson adds (emphasis mine, quotation from Justice William J. Brennan Jr.’s 1987 opinion):
And finally, explicit acknowledgement of a right to record is important because street-level officers in policing generally—as immigration enforcers are doing now—have been known to resort to informal methods of repression, threatening or roughing up persons they see using cameras, or demanding that they delete the footage or hand over their phones or tablets. That behavior in this category can itself endanger the rule of law hardly needs spelling out; as the Supreme Court put it in a 1987 case, “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.”
David Bier notes (as I have) that DHS/ICE agents are obviously trained to threaten observers with arrest under a federal statute as an intimidation tactic:
Agents have apparently been instructed to threaten observers and protesters who follow them with arrest under “18 U.S.C. § 111—Assaulting, resisting, or impeding a federal officer.” Yet as the DOJ’s criminal resource manual clearly states, “Force is an essential element” of the crime of impeding an officer. Following and recording ICE agents does not limit their ability to perform their operations.
On their own, yelling, protesting, honking a horn, blowing a whistle, following, and recording are all clearly First Amendment–protected activities, even if done during law enforcement operations. Of course, it is possible to follow an officer in a dangerous manner or physically interfere while recording an operation or protesting, but following and recording by themselves without physical interference are clearly protected. Courts have generally agreed. For instance, they have found:
- People have a right to record law enforcement during their operations, as my colleague Walter Olson describes in more depth.
- People generally have a right to protest, yell out, insult, swear at, and even “verbally interrupt” law enforcement during their operations.
- People generally have a right to post the names of law enforcement agents, including undercover agents, unless it is done with a provable intent to threaten them.
- People have a right to generally warn others about the presence of law enforcement, for example, by holding a sign, honking, flashing lights, or livestreaming.
- Honking can only be limited through a content-neutral, traffic-safety statute, which does not exist under federal law.
- People may not be arrested or detained, even for real technical traffic violations, if the officers are motivated by a desire to retaliate against their speech and the arrest or detention would not have otherwise been made.
That does not mean agents won’t arrest you anyway if they feel like it. They can and they might. Protesters have been detained for hours for alleged “assault” before being released without charge or apology. Any charges for videoing will be tossed out, if they are even brought. Honest-to-god law is on the protesters’ side.
Biers reviews multiple cases of agents threatening observers with arrest but not following through. I’ve seen multiple videos where agents give multiple “final” warnings under 18 USC 111 during a single encounter. DHS must drill it into the thugs’ heads.
Bier again:
DHS clearly has an official nationwide policy of threatening people who attempt to follow, record, document, and protest their activities. The DOJ memorandum asserts that this is “domestic terrorism” activity and threatens anyone who supports groups that monitor ICE activity. Congress should immediately act to stop this blatantly unconstitutional policy, demand information on the number of stops of individuals for following and reporting, and permit lawsuits by people who were wrongfully detained or threatened for engaging in First Amendment–protected activities.
The harassment and wrongful detention of observers is a clear civil rights violation. Federal law allows someone to bring a civil lawsuit for such a violation under 42 U.S.C. § 1983. But qualified immunity granted police makes that quite difficult. Nevertheless, Democrats have filed four separate bills to strip qualified immunity in response to DHS harassment:
H.R.4944 – Ending Qualified Immunity for ICE Agents Act (Thanedar, MI)
H.R.6091 – Bivens Act of 2025 (Johnson, GA)
H.R.6493 – To allow victims to sue federal immigration enforcement officers for constitutional violations (Moulton, MA)
S.3187 – Bivens Act of 2025 (Whitehouse, RI)
Of course, the GOP has not been idle in filing bills to strengthen qualified immunity:
H.R.503 – Qualified Immunity Act of 2025 (Foxx, NC)
S.122 – Qualified Immunity Act of 2025 (Banks, IN)
If I were stopped and threatened, I might remind agents that if Democrats regain control of the White House and Congress, they might find themselves stripped of their ability to violate my civil rights with impunity.
Happy Hollandaise!