Federal agents with Homeland Security Investigations tried to track down Rochester, N.Y. resident David Streever last month and give him a warning notice alleging that he had potentially violated the law when he wrote a harsh email months earlier to the former head of U.S. Immigration and Customs Enforcement.
Now a lawsuit filed by the nonprofit Foundation for Individual Rights and Expression on Monday in federal court in Washington, D.C. argues Streever's January email was protected speech and the federal agents' and their superiors violated Streever's First Amendment rights.
NPR reported last week about HSI agents trying to contact Streever first at his home and later at a hotel over an email that Streever wrote to Todd Lyons, who stepped down as the acting director of ICE at the end of May.
FIRE's lawsuit says the First Amendment protects Americans' rights to speak out against police but says the "Department of Homeland Security (DHS) 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."
The suit goes on to say, "Our Constitution does not tolerate such a brazen abuse of authority."
Streever wrote to Lyons' government email address on Jan. 26 after federal immigration officers in Minneapolis fatally shot two U.S. citizen observers during the immigration enforcement surge there.
The three-paragraph note compared Lyons to a Nazi and predicted that Lyons would be tormented by his own conscience. It has the subject line, "What's next."
Five months later, on June 23, two HSI agents rang the doorbell of Streever's Rochester home and then left a document with Streever's wife for him to sign. It was labeled "WARNING NOTICE" and "YOU MAY BE IN VIOLATION OF FEDERAL LAW," and described federal laws that make it a crime to threaten federal officials. The notice said ICE's Office of Professional Responsibility had identified an email to Lyons that may violate federal law and the office "is requesting that you promptly remove and/or discontinue the aforementioned behavior."
The bottom of the form reads, "Receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above."
Streever was taking his 7-year-old daughter on a vacation to a Finnish theme park when the agents visited his home. He and his daughter landed at New York City's John F. Kennedy International Airport two days later and made their way to a nearby airport hotel to sleep.
That evening, Streever was told by the hotel front desk that a federal agent from the Department of Homeland Security had come to see him and had left a business card. His wife had not told the agents which hotel he would be staying at, raising questions about how Streever had been tracked to that location.
"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 ICE officials.
The suit argues the federal agents' actions have caused Streever to self-censor his views, and alleges they violated a First Amendment bar on the government threatening people over protected speech.
The lawsuit asks for the court to find that Streever's email was protected by the First Amendment, and to bar 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 the warning notices federal agents are issuing people 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 suit reads.
DHS initially responded with the same statement that it provided last week when NPR first asked about Streever's case. "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."
Later on Monday DHS sent an additional statement. "Any allegation DHS and its components are attempting to 'squash' free speech is categorically FALSE," it reads.
"Our law enforcement officers are on the frontlines arresting terrorists, gang members, murderers, child sex abusers, and rapists. They are experiencing coordinated campaigns of violence against them and facing a 1,300% increase in assaults against them, a 3,300% increase in vehicular attacks, and an 8,000% increase in death threats."
NPR has not verified the statistics shared by DHS.
"Anyone who assaults or threatens our law enforcement officers will face the consequences," the statement concludes.
Adam Steinbaugh, senior attorney at FIRE, said in a statement the government's delayed response to Streever's January email undermines its investigation.
"If someone is really threatening a government official, you don't wait five months to act on it," Steinbaugh said in the statement. "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."
Poll worker given the same warning notice
The lawsuit mentions that the same day HSI agents visited Streever's home on June 23, they also confronted Paigelynne Gonyea, a Syracuse resident who was working at a polling place for the New York primary election that day, about an Instagram post.
While Gonyea was at Syracuse's Central Library working the polls, an HSI agent left her a voicemail that said the agents had just 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 information about a person online.
Gonyea called the agent back. She said the agents had wanted her to come outside the polling place to speak with them but she told NPR she did not trust them, and had told them to come talk to her inside the polling place when there was a lull in voters.
Local election officials later said the federal agents should not have gone inside, given that police are not supposed to enter polling places 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 shows 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 did not tell her which of her posts had prompted their visit but they had confirmed it was a post about Jonathan Ross, the ICE officer who fatally shot Renee Macklin Good in Minneapolis.
Gonyea denied to NPR and other news outlets that she had ever doxxed Ross and had said she thought the agents were referring to a post she made that identified Ross by name after the Minnesota Star Tribune had reported it, and called for Ross to be indicted. That post is still visible on her Instagram account.
But after NPR and other media outlets wrote about the encounter, DHS released a statement that said Gonyea "committed a federal crime by posting the address of an ICE law enforcement officer online." The statement continued, "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 requests from NPR to provide evidence that Gonyea had doxxed Ross. But the department did share with the Associated Press a redacted screenshot taken from a cell phone of a different Instagram post that looks like it was posted from Gonyea's account.
The post that was shown to AP is a photo of Ross with text that reads, "The killer's name is Jonathan Ross of" and the rest is redacted, presumably by DHS. The post does not currently appear on Gonyea's Instagram account. The screenshot shows it was taken six hours after the post went up but does not show a date.
Gonyea told NPR she had the opportunity to review the screenshot of the post but she 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 in a text message.
"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," she wrote.
"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 from FIRE told NPR last week that a social media post that shares 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 in the context of a broader public debate about whether federal immigration officers can wear masks and refuse to identify themselves "and essentially [act] almost as a secret police." He said for that reason, some posts that shared 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," Steinbaugh 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.
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