Back in 2023, Arkansas passed a social media age verification law so poorly drafted that the bill’s own sponsor couldn’t accurately describe who it covered. The law appeared to exempt TikTok, Snapchat, and YouTube while the sponsor publicly claimed those were the exact platforms being targeted. When the state’s own expert witness testified that Snapchat was covered, the state’s own attorney disagreed with his own witness in the same hearing. That law was struck down on First Amendment and vagueness grounds, and then permanently enjoined earlier this year in a suit brought by the trade group NetChoice.
So Arkansas went back to the drawing board and passed Act 900, which was supposed to fix all the problems with the original. Judge Timothy Brooks of the Western District of Arkansas has now preliminarily enjoined that law too, in a ruling that reads like a patient teacher explaining to a student why the homework still doesn’t work despite a rewrite.
The legislature did manage to fix the content-based definition problem that sank the first law, but the progress stops there. Act 900 imposes four main new requirements on social media platforms: a prohibition on “addictive practices,” default settings for minors (including a nighttime notification blackout), privacy default settings at the most protective level, and a parental dashboard requirement. Every single one of these provisions fell apart on review, each in its own special way.
The “addictive practices” provision might be the most impressively broken. Here’s what it actually says platforms must do:
Consistent with contemporary understanding of addiction, compulsory behavior, and child cognitive development, ensure that the social media platform does not engage in practices to evoke any addiction or compulsive behaviors in an Arkansas user who is a minor, including without limitation through notifications, recommended content, artificial sense of accomplishment, or engagement with online bots that appear human.
“Contemporary understanding of addiction” is doing a lot of work here, and it’s not up to the job. There is no consensus that social media constitutes addiction in any clinical sense. So it’s entirely unclear what a company would need to do here, which is fatal in a First Amendment context. And yet, the law is designed such that violations are strict liability and ridiculously broad. A plain reading of the law shows that it is not limited to addiction to the platform itself; a platform can apparently be held liable if its practices “evoke” addiction to off-platform activities. And the statute uses the singular “user,” meaning a single child’s response triggers liability.
As the court puts it:
Not only does Act 900 impose liability based on a single child’s response to the platform, it does so on a strict liability basis—a platform is liable for a practice the evokes addiction in a single child even if it could not have known through the exercise of reasonable care that the practice would have such an effect. “Businesses of ordinary intelligence cannot reliably determine what compliance requires.”
The state, realizing belatedly that it had written an unworkable law, asked the court to just sort of ignore the strict liability language and read in a specific intent requirement that doesn’t exist anywhere in the text. As the judge notes, that’s not how any of this works. The courts interpret the law as written and are not there to fix the legislature’s mistakes:
Instead of defending the statute the General Assembly enacted, Defendants ask the Court to rewrite it by ignoring the strict liability provision altogether and inserting a specific intent requirement that appears nowhere in the text. The Court cannot do so.
Then there’s the default provisions. The court was actually somewhat sympathetic to the idea that the state has a legitimate interest in helping kids sleep. The problem is that the law itself undermines that interest by letting parents flip the nighttime notification blackout off. And the government is not there to fix what parents refuse to do:
While Defendants justify the notification default as an aid to parental authority, they ignore their own evidence that parents are part of the problem. If parents wanted to prevent their children’s sleep from being disrupted by late-night notifications, they have a readily available, free, no-tech solution already at their disposal: taking devices away at night. Yet “86% of adolescents sleep with their phone in the bedroom.” …. The State has provided no evidence that parents lack the tools to assert their authority in this domain, so it appears unlikely that the State’s deferential approach to restricting nighttime notifications will actually serve its stated interest in ensuring minors get enough sleep. This “is not how one addresses a serious social problem.”
The privacy default is worse. It requires platforms to set privacy controls to their most restrictive level for minors — but says nothing about who can change them. Meaning, as the court notes, the minor can just… change them. The state argued this was necessary to protect children from sexual exploitation online. The court points out the obvious problem:
On the other hand, because the default can be changed by the minor, this provision is also wildly underinclusive. Defendants say children need this law to protect them from sexual exploitation online. But the law, in effect, allows children to decide whether they need protection from sexual exploitation online because they are free to depart from the protective default. As Defendants’ evidence shows, teenagers’ developing brains make them less likely than adults to appreciate the risks associated with, for example, making their profiles public… Like the notification default, while the burdens imposed by the privacy default may be slight, they do not appear likely to serve the State’s asserted interest at all. Imposing small burdens on vast quantities of speech for no appreciable benefit is not consistent with the First Amendment. Arkansas cannot sentence speech on the internet to death by a thousand cuts.
Any law that burdens First Amendment speech has to be tailored precisely to a compelling goal. And if it’s either under or over-inclusive, it’s going to have problems surviving. Making it such that kids could just turn off the privacy controls fails that test.
But the dashboard provision is where things get genuinely hilarious, in that dark way where you wonder if anyone read the bill before voting on it. Act 900 has three separate definitions for people who interact with platforms: “account holders,” “users,” and “Arkansas users.” The problem is that, according to the statute’s own definitions, a “user” is specifically someone who is not an account holder — in other words, just a visitor to the site who doesn’t have an account. Yes, it’s confusing. The court is confused. Everyone is confused.
Act 900 has one particularly noteworthy problem: “users.” Act 900 has three different definitions for relationships a person can have with a platform. First, an “account holder” is “an individual who primarily uses, manages, or otherwise controls an account or a profile to use a social media platform.” Id. sec. 1, § 4-88-1401(1). “Account holder” is not used in any of the Act’s operative provisions. Second, a “user” is “a person who has access to view all or some of the posts and content on a social media platform but is not an account holder.” Id. § 1401(12). Third, an “Arkansas user” is “an individual who is a resident of the State of Arkansas and who accesses or attempts to access a social media platform while present in this state.” Id. § 1401(2). “Arkansas users” include both “account holders” and “users,” but “users” are definitionally not “account holders.” The addictive practices provision and the default provisions therefore apply to all Arkansas minors, whether they have a social media account or are merely a website visitor. Worse, the dashboard provision applies only to minor “users,” not account holders.
Again: the dashboard provision requires platforms to build parental supervision tools for minor “users.”
Not account holders. Users. Which, as the court notes, definitionally does not include “account holders.” Meaning it only applies to… random anonymous visitors to the website. Those who have accounts… apparently aren’t covered?
As the court explains, taking the statute at its word would require platforms to:
(1) collect age information from everyone who visits a covered platform to identify minors; and (2) collect and store identity information for every minor who visits a platform to track their “use habits,” connect them with their parents, and effectuate “tools for a parent to restrict his or her minor child’s access.”
This is a law that claims to be about children’s privacy that accidentally requires mass surveillance and identity collection on every anonymous visitor to a website, just in case one of them turns out to be an Arkansas minor. The court openly “questions whether this was the General Assembly’s intended result” but notes it can’t just rewrite the statute because the legislature picked the wrong word. That’s on them. Just like the earlier provision that the state asked the court to quietly rewrite.
The Arkansas legislature does not appear to be a detail-oriented body.
Oh, and there’s also an audit requirement directing platforms to conduct quarterly audits to ensure their products aren’t “causing minors to engage in compulsory or addiction-driven behavior” — again, including off-platform behavior, apparently. How a platform is supposed to audit for behaviors that happen when users aren’t on the platform is left as an exercise for the reader.
What makes this all so maddening is that none of these problems are subtle. The “user” vs. “account holder” mixup is the kind of thing that any lawyer should catch on a close read. The strict liability plus singular “user” combination in the addictive practices provision is exactly the drafting error that made the 2023 law fail. The defaults that can be changed by the very minor they’re supposed to protect — that’s not a hard problem to spot.
There is a reason this pattern keeps repeating.
Passing an unconstitutional law to “protect the kids” from Big Tech generates headlines, press conferences, and signing ceremonies. Governor Sarah Huckabee Sanders got to tweet about how “social media companies have gotten away with exploiting kids for profit” when she signed the original law. That made the news. The permanent injunction three years later, overturning that same law? Barely a ripple. Act 900 itself got its own round of celebratory press. The injunction we’re discussing here will get a fraction of that coverage.
The political asymmetry is kind of the point. State legislatures have figured out that there is essentially no downside to passing obviously unconstitutional social media laws. The upside is maximal: you get to posture as tough on Big Tech, protective of children, and responsive to moral panics about screens and teens. The downside — losing in federal court, wasting state resources on legal fees, and getting lectured by judges about basic First Amendment doctrine — happens quietly, years later, long after the political benefits have been banked.
Arkansas will almost certainly lose its appeal, and either way the legislature will be back next session with a new hastily drafted law that fixes some of Act 900’s problems while introducing fresh ones. And then that will get struck down. And then they’ll try again. Texas, Florida, California, Ohio, Utah, Mississippi, Tennessee, Georgia, and a growing list of other states are running the same play on roughly the same schedule.
The courts keep doing their jobs. NetChoice keeps winning. Judges keep writing careful opinions explaining, for what feels like the hundredth time, that strict scrutiny means what it means, vagueness doctrine exists for a reason, and you cannot simply compel platforms to do whatever you want because you have invoked The Children.
None of it matters to the incentive structure. The headline from the signing ceremony is worth more than the opinion from the courthouse. Until that changes — until voters start holding legislators accountable for passing laws that can’t survive even the most basic constitutional review — we’re going to keep reading rulings like this one. Arkansas just provided the latest installment. There will be more.
The National Guard soldiers in desert camo piled out of unmarked vans in East Los Angeles last June, cordoning off East Sixth Street, a residential street lined with single family houses, and blocking a nearby road leading to an elementary school.
A squad of federal agents moved in flinging flash-bang grenades — explosives designed to disorient — into a small home before storming inside. They’d come for Alejandro Orellana, a Marine Corps veteran and UPS employee accused of being a central figure in a secret confederacy of insurrectionists. A news video had shown the 30-year-old distributing water, food and face shields to people protesting the Trump administration’s immigration roundups in Los Angeles.
Bill Essayli, a former state legislator who leads the federal prosecutor’s office in Los Angeles, joined the raid along with a Fox News crew.
With cameras rolling, Orellana, his parents and brothers were led out in handcuffs as agents searched their home.
On Fox News, Essayli, sporting a blue FBI windbreaker, hyped the arrest of Orellana, a quiet, wiry man with a long mane of coal-black hair. “It appears they’re well-orchestrated and coordinated, and well-funded,” he said. “And today was one of the first arrests — first key arrests — that we did.”
Essayli would charge Orellana with conspiracy — under a federal statute typically used to build cases against drug traffickers and organized crime — and with aiding and abetting civil disorder.
Within weeks, the prosecutor’s marquee case would quietly fall apart. Agents who searched Orellana’s house found little that could be considered incriminating, and prosecutors never charged anyone else as part of the supposed conspiracy. By late July, they moved to have the charges dismissed.
It wouldn’t be the only such case.
Over the past 10 months, President Donald Trump’s administration has made much of its success in sweeping through U.S. cities, capturing unauthorized immigrants and arresting people who publicly oppose the operations, routinely accusing dissenters of being domestic terrorists or extremists. Federal agents have arrested hundreds of U.S. citizens like Orellana — including protesters, activists observing the immigration enforcement operations, bystanders and, in some cases, the family members of people targeted for deportation.
Less clear to the public is what has happened to those charged.
To find out, ProPublica and FRONTLINE combed through social media, court records and news stories. Reporters identified more than 300 protesters and bystanders who were arrested by federal agents during immigration sweeps and were accused of crimes such as assaulting or interfering with law enforcement.
But over and over those accusations fell apart under scrutiny. Our reviews of court files found that statements made by the arresting officers were repeatedly debunked by video footage. In more than a third of the cases, prosecutors quickly dismissed charges that couldn’t be substantiated, refused to file charges at all, or lost at trial. The tally of cases that end this way will likely climb as many of the arrests remain unresolved.
“What’s happening now is not comparable to anything that’s happened in the past,” said
Cuauhtémoc Ortega, the chief federal defender for the Central District of California, who personally represented Orellana and other protesters. “We’ve never had a situation where it seems like you arrest first and then try to justify the reasons for the arrests later.”
The Department of Homeland Security, which includes Border Patrol and Immigration and Customs Enforcement, did not respond to repeated requests for comment on the arrests and declined to answer detailed questions from ProPublica and FRONTLINE.
But in a statement in response to an earlier story, DHS said, “The First Amendment protects speech and peaceful assembly — not rioting. DHS is taking reasonable and constitutional measures to uphold the rule of law and protect our officers.”
Watch FRONTLINE and ProPublica’s Documentary: “Caught in the Crackdown”
Given the unprecedented nature of the urban sweeps, it is difficult to compare the rate of failed cases to another time period or context. But current and former federal prosecutors and other legal experts said having that number of arrests come to nothing is particularly striking in the federal system, where U.S. attorneys usually secure convictions or guilty pleas in more than 90% of the cases they bring; only 8.2% of federal criminal cases were dismissed in 2022, according to data compiled by that court system.
The failures highlight the challenges of sending large numbers of federal agents into major cities to conduct roving immigration sweeps: They aren’t accustomed to dealing with crowds of angry protesters
Border Patrol agents are typically stationed at the border where their day-to-day work entails scooping up people who have crossed illegally. ICE agents, who often work in urban settings, had little prior experience handling hostile crowds. And FBI agents, who have aided in the immigration sweeps, would normally spend months or years painstakingly amassing evidence before making arrests.
That lack of experience in street policing and crowd control, coupled with the Trump administration’s demand for huge numbers of deportations, led agents to make a wave of unjustified arrests, legal experts say.
To be sure, protesters have often engaged in hostile behavior, hurling expletives, getting in agents’ faces and occasionally becoming violent. A woman in Minnesota is accused of biting off part of an agent’s finger during a scuffle after the killing of Alex Pretti in late January; in Los Angeles, an officer outside an immigration detention facility suffered a dislocated finger after a protester allegedly grabbed his bulletproof vest and shook him.
“The agents, they don’t know how to operate in these situations,” said Christy Lopez, a former Justice Department attorney who spent years investigating misconduct by law enforcement. Their behavior, she said, “is on par with the worst protest policing and just law enforcement that I’ve seen from any department, even in their worst days.
In its earlier statement, DHS said that “rioters and terrorists” have repeatedly attacked immigration agents, but ICE and Customs and Border Protection personnel “are trained to use the minimum amount of force necessary to resolve dangerous situations to prioritize the safety of the public and themselves.”
The arrests are not without consequence. Even unsuccessful prosecutions can be costly and emotionally taxing for defendants, said Jared Fishman, a former career prosecutor in the Department of Justice’s Civil Rights Division. The aggressive tactics of the agents and the gleeful social media posts by DHS accusing protesters of serious crimes, Fishman said, affect people’s willingness to publicly challenge the mass deportation policies.
“If the goal of the Trump administration is to keep people out of the streets, then it doesn’t matter if the people are getting convicted,” said Fishman, now the executive director of the Justice Innovation Lab, a nonprofit focused on creating a more equitable and effective justice system. “I’m sure it’s having a chilling effect.”
After reviewing data and some court records for ProPublica and FRONTLINE, Fishman said, “The numbers seem to indicate a pattern and practice of illegal arrests.”
“We Must Identify Him”
The crackdown on protesters began in June of 2025, when the Department of Homeland Security launched its wave of major immigration sweeps in Southern California. The campaign was led by Gregory Bovino, a veteran Border Patrol chief who normally presided over a remote stretch of sand and scrub deep in the state’s Imperial Valley.
Bovino from the start encouraged his agents to shut down or arrest protesters.
“Arrest as many people that touch you as you want to. Those are the general orders, all the way to the top,” Bovino told his officers, footage from an agent’s body-worn camera shows. “Everybody fucking gets it if they touch you.”
He went on to remind them that their actions should be “legal, ethical, moral” while encouraging them to use so-called less lethal weapons on protesters.
“We’re gonna look at shipping tractor trailers full of that shit in here,” he said.
Bovino’s aggressive tactics sparked intense opposition from Angelenos, including those gathered in the streets in front of the sprawling federal office complex in downtown Los Angeles on June 9.
That day Orellana drove his Ford F-150 pickup truck loaded with bottled water, snacks and cardboard boxes containing Uvex brand face shields — clear plastic masks designed to protect industrial workers from flying debris and chemical splashes — to the protest.
When he arrived in front of the federal building, another person hopped into the bed and began handing out the supplies to protesters gathered outside the entrance.
Orellana told FRONTLINE and ProPublica that he decided to help distribute the supplies after watching federal agents fire tear gas and rubber bullets into crowds at an earlier demonstration.
“A bunch of us took it upon ourselves to, you know, go downtown and give out these resources — the food, water and of course the PPE,” he said, referring to personal protective equipment.
Video and photos quickly made their way onto social media. An X user with more than 30,000 followers posted a photo of Orellana. “A photograph of the man delivering boxes of gas masks to the rioters has emerged,” wrote the poster. “We must identify him, so we can track down who is funding this coordinated attack.”
From there the thread was picked up by the conspiracy theorist Alex Jones, who has a vast audience on the platform. Jones, who repeatedly claimed that financier and philanthropist George Soros was funding the protests, eventually named Orellana as the driver of the pickup. More than two million people saw the post.
Within 48 hours, the soldiers and federal agents arrived to arrest Orellana.
Over the next five months, they arrested more than one hundred U.S. citizens in Los Angeles and other cities in Southern California — most of them demonstrators — charging them with assaulting federal law enforcement personnel or interfering with agents’ activities. Others were accused of damaging government property. At least 16, like Orellana, were charged with conspiracy, which can carry a sentence of up to six years in prison.
ProPublica and FRONTLINE found that more than a third of those cases crumbled. In eight instances, juries acquitted defendants at trial. But more frequently, prosecutors dropped charges when the claims made by immigration officers and agents didn’t match video evidence or other inconsistencies emerged. In several cases, prosecutors declined to file charges at all.
There have been some successful prosecutions: 32 of the 116 people whose arrests in California we reviewed have been convicted, many pleading guilty to misdemeanor charges. And in late February, jurors convicted two activists on stalking charges after they livestreamed themselves following an immigration agent to his home; the pair were acquitted of conspiracy.
Today 38 cases are still pending.
Essayli has stated on social media that his office brought more than 100 cases and secured convictions in more than half of them. When asked about the discrepancy between his claims and the data compiled by ProPublica and FRONTLINE, he declined to comment.
“The U.S. attorney’s office does not lose cases because they’re bad lawyers,” said Carley Palmer, who spent eight years as a federal prosecutor in the office Essayli now runs. “They are excellent trial attorneys. So if they’re losing a case, it may mean that the evidence isn’t there, or it may mean that the community doesn’t believe it should be a federal crime.”
Palmer, who is now in private practice, said the glut of protest and low-level criminal immigration cases have shifted resources away from the complex prosecutions the DOJ is uniquely equipped to handle: environmental crimes, public corruption, financial fraud, cyberscams, civil rights violations.
Essayli declined to be interviewed for this story or an accompanying FRONTLINE documentary set to air Tuesday. He was appointed by the Trump administration in early 2025, but he has never been confirmed by the Senate, raising ongoing questions about the legality of his role as top prosecutor for the region. His office did not respond to detailed questions sent by email.
Like Orellana, Julian Pecora Cardenas, 31, was charged with conspiracy last summer after following a convoy of federal agents in his car.
On the morning of July 5, Pecora Cardenas followed vans full of Border Patrol agents after they left a Coast Guard station in San Pedro, south of Los Angeles, livestreaming their movements on Instagram. “It’s every citizen’s duty to conduct oversight of their government,” he said. “I was within my First Amendment rights.”
After roughly 30 minutes, the agents stopped, pulled Pecora Cardenas from his Hyundai and slammed him to the pavement. “I honestly thought it was going to be like a George Floyd moment,” Pecora Cardenas recalled in an interview, alleging that multiple agents pinned him to the asphalt with their knees. He suffered a concussion, needed stitches over his left eye and wore an orthopedic collar to stabilize his injured neck.
Federal prosecutors charged Pecora Cardenas and another activist with conspiracy to impede the federal agents, saying that they “were illegally maneuvering their vehicles through traffic, stop lights, and stop signs to stay behind the agent’s vehicles,” that they tried to block the Border Patrol vehicles, and that they created “hazardous conditions on the road.”
Pecora Cardenas’ own video of the day’s events told a different story. The footage, which ProPublica and FRONTLINE have reviewed, contradicts the claims that the men had interfered with the agents. Within days of seeing the images, Essayli’s office jettisoned the charges “in the interest of justice.”
Pecora Cardenas hasn’t tried to observe federal agents or participate in a protest since his arrest. “I don’t want to be assaulted again. I don’t want to wind up back in federal prison for something that I didn’t do.”
“They Were Just Randomly Grabbing People”
When Bovino, the Border Patrol chief, left California and took his forces to Illinois last fall, their focus on protesters intensified.
In roughly one month, federal agents arrested more than a hundred American citizens, many of them activists participating in demonstrations or documenting the movements of immigration agents as their convoys of rented SUVs rolled through the streets of Chicago and surrounding communities.
On the morning of Oct. 3, 2025, about two hundred demonstrators gathered near the ICE facility in Broadview, a small town in the western suburbs of Chicago. Tucked away in a quiet industrial park, the nondescript building had become the locus of ongoing protests since Bovino and his forces had arrived in Illinois.
Then-Homeland Security Secretary Kristi Noem, accompanied by a DHS video team, was on site that day wearing a baseball cap and a black ballistic vest.
Also present was Benny Johnson, a prominent podcaster and online influencer who is close to the Trump administration. Johnson, who had brought his own camera crew to shoot video for his YouTube channel and other social media accounts, was effectively embedded with Noem, Bovino and the immigration agents.
At about 9 a.m., Bovino and a phalanx of heavily armed agents in combat gear began striding down Harvard Street toward the protesters. “Walk slowly,” Bovino told his men.
Without a bullhorn or any sort of amplification, Bovino informed the crowd that they were being dispersed. Then he and his colleagues began shoving people to the ground and arresting them.
In a matter of minutes, a dozen protesters had been handcuffed. Three arrestees interviewed by ProPublica and FRONTLINE told us they were confused because they’d been standing in a “free speech zone” set up by state officials.
“I felt somebody grab my shoulder and pull me to the ground,” said Juan Muñoz, a business owner and elected leader in nearby Oak Park Township. “And once I fell onto my back, that’s when I saw it was Greg Bovino.”
Kyle Frankovich, a Harvard data scientist and Chicago resident, was also arrested. “They were just randomly grabbing people,” he recalled. “There was nowhere to go, people were falling all over the place, and several of the people they arrested simply had the misfortune of tripping over all of the other protesters” as federal agents surged into the crowd.
Frankovich said FBI agents who questioned him asked who had paid for him to participate in the demonstration and who “covered the transportation cost for you to be here today.”
Johnson’s video team and a DHS camera crew filmed the arrested protesters as they were lined up outside the ICE building, while Noem looked on. DHS posted photos of Frankovich in handcuffs on X and Facebook with the message, “We will NOT allow violent activist to lay hands on our law enforcement.”
Johnson, who has more than more than 4 million followers on X and more than 6 million subscribers on YouTube, posted a video on X panning across the arrested protesters and wrote: “I saw dozens of Democrat domestic terrorists arrested today for VIOLENT ASSAULT on federal law enforcement. Every activist here attacked ICE agents in broad daylight just for enforcing American law.” He made the same claim in a nearly 13-minute-long YouTube video.
Such social media content had become a central feature of the Trump administration’s deportation campaign. DHS, Border Patrol and a raft of allied social media influencers regularly produced slick videos showing agents in action: riding in helicopters, striding through city streets clutching rifles, breaking down doors, and apprehending immigrants and activists.
But on that day in Chicago, DHS had strayed far from the facts. And so had Johnson, a 38-year-old former journalist who turned to social media after being embroiled in plagiarism scandals at BuzzFeed and the Independent Journal Review.
After about eight hours in custody, Frankovich, Muñoz and nearly all the others were released without charges. In the end, only one person would be prosecuted.
Neither DHS nor Johnson have taken the posts down. Johnson did not respond to emailed requests for comment.
The lone person charged with a crime that day was Cole Sheridan, who was accused of attacking Bovino and sending him to the hospital with an injured groin muscle.
Sheridan spent three and a half days in jail — “probably the most unpleasant thing I’ve ever had to experience,” he said in an interview with FRONTLINE and ProPublica — before being released.
In court, a prosecutor said that Sheridan had thrown a punch at Bovino and pushed him, transcripts show.
The evidence presented by the Justice Department, though, was slim. Bovino didn’t wear a body camera, so prosecutors relied on video from the body camera of Border Patrol agent Jason Epperson. But it didn’t show Sheridan assaulting anyone — though he did call Bovino “a fucking idiot.” In statements to investigators, Bovino and Epperson had offered conflicting accounts of the encounter.
About a month after Sheridan was arrested, prosecutors moved to dismiss the case after a bystander video surfaced showing clearly that Sheridan hadn’t assaulted Bovino.
“I don’t know if I’ve ever experienced something truly that bizarre and absurd as, like, seeing a law enforcement agent concoct a narrative to arrest me, to press charges against me,” said Sheridan, who describes himself as intensely private and was initially reluctant to talk publicly about his arrest. “That was extremely unnerving.”
He remains worried that he’ll be harassed or even physically attacked because of the inflammatory social media posts about him. “What a farce. Every element of it felt staged,” he said.
In a statement to ProPublica and FRONTLINE, Chicago U.S. Attorney Andrew Boutros said, “Our willingness to be open-minded and dismiss cases — or not file charges in the first place — reflects our commitment to do the right thing even in those cases where a crime was committed and the conduct in question clearly falls outside any protected First Amendment activity.” He declined to comment directly on Sheridan’s case.
FRONTLINE and ProPublica showed video of Sheridan’s arrest to Lopez, the former Justice Department attorney. “It’s just a gross abuse of power,” she said. “And we’ve almost normalized that this is how federal law enforcement behaves now. They just arrest people.”
Of the 109 arrests that ProPublica and FRONTLINE documented in the Chicago area, federal prosecutors dropped charges in at least 75 cases.
Felony Charges Downgraded
When Bovino and his forces arrived in North Carolina last November, they were greeted by protesters opposed to the deportation sweeps, as they had been in previous cities.
Heather Morrow was one of them. She had joined a small group of demonstrators, chanting and banging on metal dishes outside an immigration facility in Charlotte when ICE officers confronted the group.
They handcuffed Morrow, 45, and another activist, stuffed them in the back of a federal vehicle and, according to Morrow, kept them there for hours before finally taking her to jail.
“I was so traumatized,” Morrow, a school bus driver and dog boarder, said in an interview. “I didn’t expect them to be so overly aggressive. I really showed up there expecting conversation, making them come to their senses.”
After a full day and night in custody, she was released to face federal felony assault charges. A Department of Justice press release accused her of attacking an ICE officer just as he showed up for his work shift, grabbing his shoulders and trying to jump on his back.
But a shaky phone video circulating on social media showed what appeared to be a very different scene. In it, an officer comes from behind and abruptly tackles Morrow to the pavement. The video doesn’t show her assaulting anyone.
When prosecutors saw the video, they dumped the felony charges. But they promptly filed a new misdemeanor case against Morrow and the other activist, alleging the pair impeded ICE officers and failed to follow their orders. It took a month for Morrow to get her phone back from federal custody, while her other confiscated possessions, including her keys, have been lost, Morrow’s attorney said. Because she’s on pretrial probation, the federal government has seized her passport. Morrow has pleaded not guilty, and her case is ongoing.
In Handcuffs and Intimidated
In early January, Bovino arrived in Minneapolis with his social media team. Within weeks, two activists — Renee Good and Alex Pretti — were shot and killed by immigration agents. The Trump administration immediately portrayed Good as an extremist; Bovino claimed that Pretti was planning to kill federal personnel when he was shot to death.
The killings, which sparked national outcry, would prompt the administration to recalibrate. By Jan. 26, Bovino had been demoted and sent back to his home station in the California desert.
But immigration agents continued to roam the Twin Cities, and activists continued to get arrested.
Civil rights attorneys from around the country gathered in a Minneapolis conference room on Jan. 30 to discuss those arrests.
During a break for lunch, Jon Feinberg, president of the National Police Accountability Project, stepped out of the room and spoke to reporters. “To be charged with a federal crime is something that is life-altering,” said Feinberg, who is based in Philadelphia. “The consequences of being accused and possibly convicted of a federal offense are devastating, especially when people have not engaged in criminal conduct from any reasonable person’s perspective.”
ProPublica and FRONTLINE have identified nearly 80 arrests stemming from the Minnesota immigration sweeps. Most of the cases are still ongoing, though a handful have been dismissed.
Daniel Rosen, the U.S. attorney for Minnesota, did not respond to requests for comment.
One of those arrested was Rebecca Ringstrom, who lives in Blaine, a quiet suburb north of Minneapolis.
Ringstrom, 42, is a member of an activist group that tracks immigration agents as they move around Blaine. “There was a vehicle with four agents inside that I could see. All four were in tactical gear,” she said in an interview with ProPublica and FRONTLINE. “I was able to look at the plate and see that it was a confirmed ICE vehicle.”
Behind the wheel of her Kia, she began following them; Ringstrom insists her driving was safe and lawful. But in a matter of minutes, she’d been arrested and accused of interfering with federal law enforcement.
Ringstrom said an agent at the Bishop Henry Whipple Federal Building, where she was briefly held after her arrest, said he wished he’d arrested her — because he would’ve made the experience more unpleasant and violent. “There was no reason to say that. I’m already here. I’m in handcuffs. It’s just a way to intimidate,” she recalled.
She was charged with interfering with a federal agent and issued a notice of violation — essentially a ticket — for the misdemeanor offense. Since then, Ringstrom has lined up a pro bono lawyer, but she has also lost her job, “likely due to the ongoing coverage” of her arrest.
She is scheduled to make her first court appearance later this month.
For the better part of five years, we’ve been treated to an elaborate performance about the unprecedented constitutional horror of “jawboning.” Jim Jordan held hearings. Missouri’s AG sued. The Supreme Court heard Murthy v. Missouri and concluded there wasn’t enough evidence of government coercion to establish standing, let alone a First Amendment violation. None of that mattered to the MAGA ecosystem, of course, which continued to treat a handful of out-of-context sternly worded emails from Biden officials as the greatest censorship regime in American history.
Then the Trump administration came in, and a funny thing happened. The same people who’d built entire careers around the supposed horrors of government pressure on tech platforms suddenly had nothing to say when the Attorney General of the United States went on Fox News to brag — brag! — about demanding Apple remove an app and Facebook take down a group, both because their content was critical of ICE enforcement.
On Friday, Judge Jorge L. Alonso of the Northern District of Illinois granted a preliminary injunction against DOJ and DHS, finding that plaintiffs are likely to succeed on their claim that the government violated the First Amendment by coercing Facebook and Apple into suppressing protected speech. The ruling is short and direct in an almost embarrassingly straightforward way — largely because Pam Bondi and the rest of the government handed the plaintiffs most of their case on a silver platter, then held press conferences to make sure everyone knew about it.
We covered the DOJ’s demands on Apple back in October and FIRE’s subsequent lawsuit in February. As we explained then, the case seemed quite straightforward, and now the district court has agreed.
The plaintiffs are Kassandra Rosado, who ran a Facebook group called “ICE Sightings – Chicagoland” with nearly 100,000 members, and Kreisau Group, which made a phone app called “Eyes Up” for documenting ICE enforcement activity. Both services existed well before the government got involved. Both had been reviewed by the platforms and found compliant with their respective policies. In fact, as the ruling notes regarding the Facebook group:
Prior to October 14, out of thousands of posts and tens of thousands of comments made in the Chicagoland Facebook group, Facebook’s moderators found and removed only five posts and comments that purportedly violated Facebook’s guidelines. … When Facebook removed those posts, Facebook advised Rosado that the posts were “participant violations” that “don’t hurt your group” and that “groups aren’t penalized when members or visitors break the rules without admin approval.”
Then Laura Loomer — a person whose entire public identity was built around suing Facebook and other tech companies for moderating her own posts, and who once argued that content moderation was literal RICO — tagged Pam Bondi and Kristi Noem in a social media post demanding they do something about the Chicagoland group. Because apparently the First Amendment only constrains Meta when Loomer herself is being moderated; when she wants other people silenced, she calls in the actual federal government.
Two days later, Facebook disabled the group. That same day, Bondi posted this to X:
Today following outreach from [the DOJ], Facebook removed a large group that was being used to dox and target [ICE] agents in Chicago.
Noem followed up with her own X post taking credit for the DOJ’s “leadership” in getting Facebook to act, adding the observation that:
Platforms like Facebook must be PROACTIVE in stopping the doxxing of our [ICE] law enforcement. … We will prosecute those who dox our agents to the fullest extent of the law.
On the Apple side, Bondi went even further, telling Fox News Digital directly:
We reached out to Apple today demanding they remove the ICEBlock app from their App Store — and Apple did so.
A few days later, she added that “we had Apple and Google take down the ICEBlock apps” and — in a sentence that should probably be framed and hung in every law school’s First Amendment classroom — followed it with: “We’re not going to stop at just arresting the violent criminals we can see in the streets.”
Apple promptly removed Eyes Up too, informing the developer that “law enforcement” had provided “information” indicating the app violated Apple’s guideline against “defamatory, discriminatory, or mean-spirited content” — the same guideline Apple had independently reviewed the app under just two months earlier, when it found no such problem.
The legal framework here is familiar territory for Techdirt readers. Bantam Books v. Sullivan from 1963 established that “thinly veiled threats to institute criminal proceedings” against parties who don’t come around to the government’s preferred speech outcomes violate the First Amendment. 2024’s NRA v. Vullo reaffirmed and sharpened that principle, holding that “[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” The test, per Vullo, is whether government conduct, “viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”
That’s what was missing in the Murthy case — but was clearly present in Vullo. And here.
Judge Alonso applies this framework step-by-step. On causation — the element the Murthy plaintiffs famously failed on — he identifies three facts that, taken together, make it overwhelmingly likely the injuries trace to government coercion rather than independent platform judgment:
First, Facebook had previously reviewed the Chicagoland group, and Apple had previously reviewed Eyes Up. In both cases, Facebook and Apple had determined that the content met their requirements. Second, Facebook and Apple changed their positions and removed the content immediately after Defendants contacted them about it. And third, Defendants made public statements taking credit for the fact that Facebook and Apple had removed the content.
Unlike in Murthy, where it was all vague speculation disconnected from reality, the causal chain here is pretty clear, helped along by a Trump administration that simply can’t resist bragging about suppressing the rights of Americans.
Bondi and Noem’s inability to resist a Fox News hit really made this case super easy. In Murthy, the Supreme Court found that plaintiffs couldn’t even establish the Biden administration had caused the content moderation decisions they were complaining about, because platforms had their own independent reasons for their policies and had often rejected government requests outright. Here, the government has publicly, repeatedly, and proudly announced that it caused the removals.
On the coercion analysis itself, Alonso walks through the Seventh Circuit’s Backpage.com v. Dart framework, noting that government officials don’t even need direct regulatory authority over the target to cross the line. What matters is “the distinction between attempts to convince and attempts to coerce.” And here, the court finds, Bondi and Noem demanded rather than requested, and made clear there would be consequences for non-compliance:
Bondi and Noem also intimated that Facebook and Apple may be subject to prosecution for failing to comply with Bondi and Noem’s demands. For example, after stating that we “had Apple and Google take down the ICEBlock apps,” Bondi further stated: “We’re not going to stop at just arresting the violent criminals we can see in the streets.” … And in the same social media post where Noem wrote that “[p]latforms like Facebook must be PROACTIVE in stopping the doxxing of our [ICE] law enforcement,” she added: “We will prosecute those who dox our agents to the fullest extent of the law.” … Although these statements may not be direct threats to prosecute Facebook and Apple, they are intimations of a threat. And thinly veiled threats such as these constitute sufficient evidence on which Plaintiffs are likely to succeed on their claim.
The quote from Bondi about not stopping “at just arresting the violent criminals we can see in the streets,” paired with her public announcement that she’d forced Apple’s hand, is about as textbook a Bantam Books fact pattern as you’re going to find. The Supreme Court’s warning in 1963 was that “[p]eople do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” Sixty-three years later, here is the Attorney General of the United States describing the process of coming around, and taking credit for it.
Of course, as you know, Bondi was fired by Trump earlier this month for insufficient commitment to his vindictive fantasies, and Noem has also been replaced. Both are automatically substituted out in the litigation under Rule 25(d) for their successors, Todd Blanche and Markwayne Mullin. The people who orchestrated the censorship may be out of power, but it’s not like their replacements are any less likely to violate the free expression rights of Americans. This injunction binds these replacement-level cabinet members all the same.
But still, in all of this, it’s astounding that we’ve heard nothing from the vocal crew who insisted the Murthy case was the quintessential example of American government censorship. The same people who were trumpeting a faux settlement in that case just weeks ago seem to have zero to say about a court finding actual censorship here.
For years, the people who built entire media careers around the supposed Biden jawboning scandal insisted — against all available evidence — that private platforms making their own moderation decisions after receiving polite feedback from the government constituted the greatest assault on free speech in American history. They refused to accept the distinction between persuasion and coercion, dismissed every platform executive who explained that moderation decisions were independent, and treated the Supreme Court’s rejection of their standing arguments in Murthy as a miscarriage of justice rather than an accurate assessment of what the evidence actually showed.
And now, confronted with an actual, documented, judicially confirmed case of government coercion — where the Attorney General literally said the word “demanding” in a Fox News interview, where the Secretary of Homeland Security publicly warned platforms they “must be PROACTIVE” and threatened prosecution, where a federal judge has granted a preliminary injunction applying the exact legal framework they claimed to care about — the response from the usual suspects has been… crickets.
Turns out they didn’t actually care about jawboning as a principle — they just cared which way the pressure was pointed. They didn’t want government neutrality about platform moderation decisions; they wanted government pressure in their preferred direction. The First Amendment, in their functional view, prohibits making life difficult for people they like and permits — encourages, even — making life difficult for people they don’t. And sure, they’ll claim this censorship was justified because it was “necessary” to “protect ICE from harm.” But that’s not how the First Amendment works, it’s wrong as a principle, and — perhaps most importantly — that same logic would have applied to the censorship they (falsely) claimed was happening under Biden regarding COVID information, which was also, in theory, done to protect American lives.
Alonso’s ruling is a reminder that the First Amendment doesn’t care about your political team. Bantam Books and Vullo don’t have political valences. Bantam Books was an 8-1 decision. Vullo was 9-0. Coercing platforms to remove speech the government disfavors is unconstitutional regardless of which administration is doing the coercing and regardless of whether the speech in question is popular with any particular political faction. But you have to actually show the coercion! A court applying the law honestly to the facts here couldn’t reach any other conclusion, because Bondi and Noem made the facts unmissable. They said the quiet part loud, on camera, to Fox News, in tweets they pinned to their profiles.
The supposedly monumental Missouri case had none of that — which is exactly why the Supreme Court rejected it. And yet it’s still held up by many as some sort of evidence of censorship, by the very same people who seem to have zero interest in this far more direct and documented example.
The takeaway is simple: if you spent five years insisting that jawboning is a grave constitutional offense, you don’t get to cheer when your team does the exact same thing. Or, well — you can, but the rest of us are going to notice. And maybe say something about it.
Everyone else gets to file this ruling away for the next time someone starts ranting about Murthy. This is what the law actually looks like when the facts are there. And the facts, in this case, were provided by the government itself, free of charge, on national television.
We’ve been covering Brendan Carr’s censorial ambitions for a long time now. When Trump first picked him to chair the FCC, we warned people that the “free speech warrior” branding was a total sham. We later dug into the letter from a massive coalition of 80+ legal scholars, former FCC officials, and civil liberties groups detailing how Carr’s threats fly in the face of the First Amendment. Hell, just this morning Karl wrote about how Carr is still plotting to punish Jimmy Kimmel for mocking President Trump. Meanwhile, Carr has responded to the criticism with smirking emojis and culture-war memes on X, treating the whole thing as performative trolling for an audience of one.
But now, First Amendment lawyer Bob Corn-Revere has published an open letter to Carr that is, frankly, one of the most devastating things I’ve read in years. And you really should go read the whole thing.
While Carr has mostly laughed off or ignored criticism of his many First Amendment violations, a letter from Corn-Revere (beyond the incredible prose of the letter) may hit a bit different given his stature within the First Amendment world. He has famously spent decades fighting in the trenches of the hardest, most politically uncomfortable First Amendment cases in the country. He represented CBS in its challenge of the infamous “wardrobe malfunction” case, and also represented Playboy in US v. Playboy Entertainment Group and was co-counsel at the Supreme Court in the famous US v. Stevens case, which made it clear that the Supreme Court was not interested in expanding the categories of unprotected speech. There are many more famous cases on his resume as well. This is someone who has spent his entire career defending speech, including in cases where it was genuinely offensive, deeply unpopular, and legally novel — because that’s what actual First Amendment commitment requires.
Oh, and he served as Chief Counsel to former FCC Chairman James Quello, so he knows how the FCC works from the inside.
So when this person tells Brendan Carr that he has betrayed his professed values, it carries a weight that Carr’s thumbs-down emojis can’t dismiss. The letter opens by pointing to the cautionary tale of Pam Bondi’s sudden firing as Attorney General:
Pam Bondi’s sudden and ignominious end as Attorney General is an important cautionary lesson about what happens to officials in this administration who over-promise in order to curry favor with the man they see as their boss, but who under-perform because of the limits of their authority.
Bondi promised the President she would prosecute his political enemies and failed miserably. The President rewarded her misplaced loyalty by denying her the graceful exit she sought, and instead fired her during a cross-town limo ride to watch a Supreme Court argument.
You have recently threatened to revoke the licenses of broadcasters who air what you call “fake news,” which apparently includes any skeptical reporting about the war in Iran—something you know you cannot do legally.
My advice? Don’t get into a car with the president anytime soon.
That line sets the tone for everything that follows — a pointed warning from someone who’s been inside the institution and watched Carr’s transformation up close, not someone lecturing from a safe distance.
From there, Corn-Revere walks through exactly how Carr has become the precise opposite of the person he used to claim to be, quoting Carr’s own prior statements back at him:
As you may recall, shortly after you were named to head the Federal Communications Commission, I offered you some unsolicited advice in the form of an open letter entitled “A Plea for Institutional Modesty.” I suggested you should be circumspect in your assertions of power over broadcasters because “you don’t have as much power as you may think,” and flexing your regulatory muscles would conflict with both the Communications Act and the Constitution.
But as was clear from your initial acts as chairman and statements you made while campaigning for the job, your quest for political advancement overrode any previous commitment to First Amendment values. Gone were the days when, as a commissioner, you said things like “a newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them,” or that “inject[ing] partisan politics into our licensing process” is “a deeply troubling transgression of free speech and the FCC’s status as an independent agency.”
I never expected you would heed my gratuitous advice, but had no idea how thoroughly you would betray your former (professed) values. Instead, you emerged as a Bizarro World caricature of yourself, threatening owners of broadcast networks with summer stock Don Corleone impressions and devoting much of your social media activity to jawboning. It is as if you set out to prove that the real mental health crisis in America isn’t about teens on Instagram, but public officials on X.
If someone of BCR’s stature said any of that about me, I might log off the internet forever.
The letter is full of these moments where Corn-Revere combines deep legal knowledge with rhetorical skill matched by very few. Take his description of Carr’s reliance on the long-dormant “news distortion” policy — a regulatory zombie that only exists because the FCC never formally killed it off after eliminating the Fairness Doctrine decades ago:
The news distortion policy is like a phantom limb after the FCC amputated the fairness doctrine—it is not really there in substance, but you still seem to feel you can walk on it.
Your smug social media posts about how broadcasters will be held to their public interest obligations “on your watch” ignores this history, but your claim that “the opposition to holding broadcasters accountable to the public interest comes increasingly from those unfamiliar with longstanding FCC precedent” is even worse, because you know it is a bald-faced lie.
The letter also hammers home a point we’ve made repeatedly: the actual, messy consequences of Carr’s performative bullying, and shows how spectacularly it has backfired over and over again. After Carr strong-armed Disney into suspending Jimmy Kimmel Live:
Protesters picketed outside the gates of the Magic Kingdom, and an estimated 7.1 million people cancelled subscriptions to Disney-owned streaming services Disney+ and Hulu over the controversy—at about twice the usual churn rate.
ABC affiliate group owners Sinclair Broadcasting and Nexstar Media Group, who had business before the Commission, and who dutifully followed your demand, also lost money. It turns out that advertisers will not pay as much for spots during reruns of Celebrity Family Feud as during Jimmy Kimmel Live!, and Sinclair revenue dropped a reported 16 percent for the quarter. Nexstar also suffered losses, although the amounts were not disclosed.
The result? The suspension ended a little more than a week after it began and Kimmel triumphantly returned to the air to his highest viewership in over a decade. Kimmel’s comeback garnered 6.3 million broadcast viewers and roughly 20 – 26 million views on social media within 24 hours.
His attempt to manipulate equal opportunity rules to silence Stephen Colbert went even worse:
In January, you caused the FCC staff to reinterpret whether candidate interviews on certain talk shows were exempt from the equal opportunities rule, reversing decades of precedent.
You apparently were miffed that candidate interviews on certain TV shows did not trigger “equal time” requirements for their opponents under exemptions to the rule Congress adopted in 1959. Yet mysteriously, you said there was no need to apply your reinterpretation to conservative talk radio interviews.
But your main target of this move, Stephen Colbert, outsmarted you. He ridiculed your reinterpretation of the equal opportunities rule on air, and gleefully transmitted his interview with Texas Senate candidate James Talarico on The Late Show’s YouTube channel, which is beyond the FCC’s jurisdiction. The interview got over seven million views overnight (more than three times the on-air viewership), Talarico immediately received $2.5 million in campaign contributions, and won his primary.
Carr’s tactics are unconstitutional and tactically stupid. He keeps creating the very outcomes he’s supposedly trying to prevent — even as some less strong-willed news orgs buckle under his threats or pre-censor themselves to avoid his performative wrath.
But the part of the letter that really sticks with me is the section on Carr’s legal knowledge — specifically, the massive gap between what Carr actually knows and what he pretends to believe. Corn-Revere lays out the full chain of Supreme Court precedent cutting back on the FCC’s assumed authority over broadcast content — and then lands this:
But you know all this. Just as you know the FCC eliminated the fairness doctrine four decades ago, which is the regulatory progenitor of the “news distortion policy” you now love to cite (but only against broadcasts you perceive as critical of this administration).
This matters because it removes the escape hatch of ignorance. When politicians misstate the law, you can at least entertain the possibility they just don’t know better. Carr has been an FCC commissioner for nearly a decade. He practiced communications law. He knows what he’s doing is legally indefensible, and he knows his smug social media posts about “the law is clear” are, as Corn-Revere puts it, “a bald-faced lie.”
The letter ends by looking at what all of this does to Carr’s legacy, and it lands with a quiet brutality that no amount of trolling can deflect:
Your recent appearance before the Conservative Political Action Conference is a prime example, where you explained the president is “winning” against the media by listing several media personalities who have left their jobs, including (as you put it) “sleepy eyed Chuck Todd.” I should not have to remind you of this, but it is a poor and pathetic leader who measures “winning” by what he thinks he has destroyed rather than by what he has managed to build.
And:
As I wrote in my first open letter, selling out your (professed) values represents short-term thinking. I noted that “officials who have tried to muzzle the press for short-term political gain have not been treated well by history,” and “if I were your adviser, this is not how I would want history to remember you.” Now, to the extent you will be remembered at all, it will most likely be mainly as a South Park character.
I wish you had listened.
Carr will likely ignore this, much like he brushed off the coalition letter, his own past statements, and basically every legal guardrail he’s encountered since taking the chair. That’s his whole game — the threats, the memes, the emojis, the audition tape for whatever comes next.
Still, the record is there now, written by someone whose First Amendment track record makes Carr’s look like a cheap Halloween costume. And unlike Carr’s social media posts, this letter will age well.
There’s a lot more in the letter. Go read the whole thing. You won’t regret it, even if Brendan Carr would likely wish to censor it like he wishes to censor Jimmy Kimmel.
Update: Corrected the list of cases that Bob worked on.
As the boss of the country’s media and telecom regulators, there’s plenty of corporate malfeasance and corrupt shenanigans Brendan Carr could be targeting on any given day at the country’s biggest media and telecom companies. But because Carr’s never been all that interested in the public interest, he’s once again spending his time trying to hurt a comedian who made fun of our unpopular president.
After an embarrassing failure at his attempt to censor Jimmy Kimmel for criticizing Donald Trump last year, Policyband notes that Carr is cooking up a new inquiry to ensnare Kimmel. This time, Carr is pretending he cares about financial conflict of interests, and is looking to “revisit” long‑standing conflict‑of‑interest rules for broadcasters (and Kimmel):
“A lot of people don’t know this, but there’s conflict‑of‑interest rules that apply to broadcasters, both personal financial, but also personal political,” he said. Carr — who had a blow up with Kimmel last September over the comic’s comments about Charlie Kirk’s assassination — did not mention Kimmel by name. But he really did not need to because of the existence of a conflict of interest complaint pending against the host of Jimmy Kimmel Live! (via an ABC station) at the FCC.”
It’s been abundantly clear that the Trump administration is one giant, lumbering financial conflict of interest, though obviously Carr’s not actually interested in any equal application of financial conflict of interest rules. Instead, he’s leveraging FCC rules to single out Kimmel and a $23,000 payment Kimmel made to Democrat Adam Schiff’s campaign a year before Schiff appeared on Jimmy Kimmel Live!
Trump’s friend Larry Ellison has already taken out one late night TV host, Stephen Colbert, who was abruptly fired by CBS. Now Trump continues to try and leverage his lapdog at the FCC to find new and creative ways to make life difficult for any remaining late night hosts, tramping the First Amendment at every and any opportunity.
Carr is the same guy who recently (and illegally) ignored any remaining media consolidation limits to help his friends at right wing TV broadcasters merge, something only scuttled after court intervention. Whether it’s a conflict of interest inquiry, a free speech complaint, or cybersecurity “reforms,” absolutely nothing Carr does is in good faith; something our press struggles to make evident.
The exception has been outlets like Wired, which recently reported that a right wing activism group, the Center for American Rights (CAR), had direct access to Carr, bypassing all standard staff interactions. CAR was integral in helping Carr shape some of his hollow complaints against Kimmel and ABC in relation to his abuse of the antiquated FCC “equal time” rule.
With that bogus censorship effort thwarted, Carr has moved on to creatively crapping all over the First Amendment in equally creative, but likely equally fruitless ways.
We’ve been covering the Trump administration’s escalating campaign against NewsGuard for a while now. It started with the House Oversight Committee’s absurd investigation of the company for the crime of expressing opinions about news reliability. But then there was the FTC’s burdensome fishing expedition and blocking of the merger of two advertising giants — Omnicom and IPG — unless they stopped working with NewsGuard. That one prompted NewsGuard to sue the agency. Now the FTC, joined by a coalition of eight red states, has finished the job, getting the three other “big” ad agencies to agree not to use NewsGuard (or the Global Disinformation Index).
That means every single one of the five major advertising agency holding companies in the United States has now been successfully pressured by the federal government to stop using NewsGuard’s ratings. All of them. Entirely because NewsGuard expressed opinions about conservative news outlets that some powerful people found inconvenient.
I seem to recall some fairly dramatic freakouts from supposed ‘free speech absolutists’ about government pressure on media organizations constituting a massive First Amendment crisis. Strange that none of those people are speaking up about this. Many seem downright supportive.
I also seem to recall that in NRA v. Vullo, just two years ago, the Supreme Court said that government employees are not allowed to threaten companies not to do business with others because of disfavored opinions. The MAGA crowd celebrated that ruling. And now they’re doing the exact same thing that Vullo was accused of, except even more directly.
The United States government has successfully prevented a private journalism organization from doing business with the entire major advertising industry. All because NewsGuard expressed opinions about the reliability of news sources, and some of those opinions hurt the feelings of conservative media outlets — most notably Newsmax.
The FTC is leaning hard on an extraordinarily stretched interpretation of antitrust law to pull this off. The FTC’s complaint alleges that the three remaining major ad agencies — WPP, Publicis, and Dentsu — colluded through trade associations to establish common “brand safety” standards, and that this collusion constituted an illegal restraint of trade under the Sherman Act. Since they’d already gotten the other two, Omnicom and IPG, to agree to stop using NewsGuard as a condition of their merger approval, the full set is covered.
FTC Chairman Andrew Ferguson, who promised when he took the job to “end politically motivated investigations” (he meant Lina Khan’s, not his own), offered some truly rich language in the press release:
“The ad agencies’ brand-safety conspiracy turned competition in the market for ad-buying services on its head,” said Chairman Andrew N. Ferguson. “The antitrust laws guarantee participation in a market free from conduct, such as economic boycotts, that distort the fundamental competitive pressures that promote lower prices, higher quality products and increased innovation.
“As we explain in our complaint, the brand-safety agreement limited competition in the market for ad-buying services and deprived advertisers of the benefits of differentiated brand-safety standards that could be tailored to their unique advertising inventory,” he continued. “This unlawful collusion not only damaged our marketplace, but also distorted the marketplace of ideas by discriminating against speech and ideas that fell below the unlawfully agreed-upon floor. The proposed order remedies the dangers inherent to collusive practices and restores competition to the digital news ecosystem.”
The ‘marketplace of ideas’ — that’s a fun phrase to invoke while using government regulatory power to prevent private companies from subscribing to a journalism ratings service because you don’t like what the ratings say. Ferguson is claiming to restore the marketplace of ideas by directly removing a participant from it.
Strip away the out-of-context, ominous-sounding internal email quotes, and the complaint describes something far less scandalous than the FTC wants you to believe.
The advertising industry, through trade associations (the 4As’ Advertiser Protection Bureau and the World Federation of Advertisers’ GARM initiative), developed common standards for what kinds of content advertisers might not want their brands associated with. This is a practice that has existed in advertising forever — brands don’t want their logos next to terrorist recruitment content, pornography, or content promoting illegal activity. That’s what “brand safety” means. The industry then expanded those standards over time to include categories like “misinformation” — and, in doing so, some individual agencies chose to use NewsGuard’s ratings, among other tools, to help implement those standards.
The complaint makes this sound terrifying through selective quoting. The most dramatic bit is this, from GARM, cautioning participants about discussing their coordination publicly:
The first rule of Fight Club is: You do not talk about Fight Club. The second rule of Fight Club is: You do not talk about Fight Club.
That’s a colorful quote! But it’s also a joke. Fairly obviously. What it describes — trade associations encouraging discretion about internal industry discussions — is routine. What matters is whether the underlying conduct is actually anticompetitive in a way the Sherman Act cares about. And that’s where the complaint falls apart. This was about setting brand safety standards. Not about preventing competition.
In a real antitrust case involving a cartel, you’d see competitors agreeing to fix prices, divide markets, or restrict output to inflate profits at consumers’ expense. What the FTC describes here is companies subscribing to the same third-party ratings service and incorporating it into their own, independent brand safety strategies. That’s like saying five banks are running an illegal conspiracy because they all use FICO scores and independently decided not to lend to borrowers with scores below 600. Common inputs don’t equal coordinated outputs. The FTC’s own complaint includes evidence of the agencies competing on brand safety — a Publicis executive explicitly strategized about creating a better brand safety guide than WPP’s, and recommended distributing it only internally to maintain competitive advantage:
She further recommended, with emphasis, “only distribut[ing] this internally and for clients,” not putting it “publically on our website as GroupM [WPP] did.”
That’s competition. That’s exactly what a market without collusion looks like. Companies see what their rivals are doing, and try to do it better.
The complaint acknowledges that the Interactive Advertising Bureau itself recognized that “Advertising quality is in the eye of the beholder” and recommended “a nuanced approach rather than blocking entire content categories or keywords.” The agencies were, in fact, trying to develop exactly such nuanced approaches — and the evidence the FTC presents shows them debating and disagreeing about how to handle “misinformation” as a category. One agency executive described the topic as “complicated and important” and suggested tabling it. Others had “a ton of back and forth discussion” and were “close, but not 100% there.” This is just what happens when industry participants work through a difficult issue. It can look an awful lot like what the FTC calls conspiracy if you strip away enough context and squint hard enough.
The real tell, however, is the remedy. If the FTC genuinely believed the problem was anticompetitive coordination between ad agencies, the remedy would be straightforward — “stop coordinating and compete independently on brand safety standards.” Make your own decisions. Develop your own tools. Compete.
That’s not what the consent decree says. Instead, the order will “ensure that each of the biggest U.S. advertising agencies are prevented from engaging in agreements that would set common brand safety standards or restrict advertising based on biased and politically motivated criteria.” And in the Omnicom/IPG merger conditions, the language was even more explicit: The merged company was prohibited from using any service that “reflects viewpoints as to the veracity of news reporting and adherence to journalistic standards or ethics.”
That is entirely about punishing companies that ranked conservative news sources as untrustworthy. It’s about punishing speech.
The government is prohibiting private companies from using services that express viewpoints about the veracity of news reporting. That’s a content-based restriction on speech, imposed through regulatory coercion, targeting specific viewpoints the government disfavors. In any other context, the people pushing this would call it censorship — because that’s exactly what it is.
And we know this remedy was specifically tailored to target NewsGuard because Newsmax told us so. As we covered when NewsGuard filed its lawsuit against the FTC, when the original Omnicom/IPG merger conditions didn’t quite capture NewsGuard, Newsmax swooped in to fix that. As detailed in the lawsuit:
Newsmax was not subtle about its aim. Its fourteen-page letter mentioned NewsGuard more than a dozen times. Newsmax echoed Chairman Ferguson’s repeated statements that NewsGuard’s reviews and ratings of news sources based on journalistic standards were “biased” because some conservative-leaning websites and publications scored poorly.
Not content to rely on the official FTC comment process, Newsmax took to the internet to lobby Chairman Ferguson, members of Congress, and the President. In posts on X directed to Chairman Ferguson, Newsmax asserted the FTC’s proposed order was inadequate because it “makes no mention of ‘censorship’ or ‘targeting conservatives’ and ‘[f]ully allows Omnicom to use left-wing NewsGuard.”
The FTC, in its own press release, stated that it revised the order “in response to public comments,” though the only significant revision that matched a public comment was that one from Newsmax about NewsGuard. They didn’t revise the order in response to the First Amendment scholars and free speech organizations who submitted comments pointing out the obvious constitutional problems. Only in response to Newsmax whining about NewsGuard calling out their failures in journalistic behavior.
The government regulatory agency changed its order at the direction of a media company that was mad about its review score. And now has applied the same framework across the entire industry.
This whole pattern — the origin story of this campaign — deserves emphasis because it exposes the mechanism. NewsGuard, founded by Steven Brill and Gordon Crovitz (the former publisher of the Wall Street Journal, which makes the “woke leftist” framing particularly absurd), rates news sources based on disclosed journalistic criteria. Even if you disagree with NewsGuard’s criteria, it’s still just… their opinion. Their speech. Some conservative outlets scored poorly. Those outlets complained to sympathetic politicians. Those politicians launched investigations. The FTC chair, who had already publicly stated he intended to use the FTC’s “tremendous array of investigative tools” and “coercive power” to make companies “Do what we say,” sent NewsGuard a sweeping subpoena for essentially every document the company had ever produced — including reporters’ notes and sources — while refusing to even tell NewsGuard what law it allegedly violated. Then the FTC used its merger review authority to ban NewsGuard’s biggest potential customers from doing business with it. And now, with this latest action, the ban extends to every major ad agency in the country.
As NewsGuard’s lawsuit put it:
By accusing NewsGuard of providing “biased” evaluations of news sites, Chairman Ferguson has inverted the relationship between the government and the First Amendment. NewsGuard is a private business that offers assessments of the quality of news sites based on disclosed journalistic criteria. As a matter of law, NewsGuard cannot be a censor. But by asserting FTC control over the market for NewsGuard’s services, Chairman Ferguson has embraced the censor’s role.
This claim that critical speech of favored individuals or organizations is “censorship” is at the heart of the modern GOP’s entire approach to “free speech.” Private companies expressing opinions they don’t like? Censorship. The government using regulatory power to punish private companies for expressing those opinions? Restoring the marketplace of ideas. Up is down. Speech is censorship. Censorship is freedom.
And just to put a final bow on the cynicism here: this complaint was filed in the Northern District of Texas, Fort Worth Division. If that court sounds familiar, it’s because it’s the favored venue for conservative forum-shopping, home to Judge Reed O’Connor, who has been the go-to jurist for everything from challenges to the ACA to Elon Musk’s SLAPP suit against Media Matters. The FTC almost certainly chose this seemingly random venue because they know exactly what kind of judicial scrutiny they’ll face, which is to say: none worth worrying about.
The Commission vote on this action was 1-0-1. Because, remember, Donald Trump illegally fired the two Democratic FTC members and has made no real move to replace them. All that’s left is Chairman Ferguson and the also problematic Mark Meador, who recused himself from this vote. In other words, this “vote” was simply Ferguson agreeing with himself, approving what amounts to a government-imposed blacklist of a journalism company, backed by the attorneys general of eight states, all for the offense of expressing opinions about news quality that some powerful people found inconvenient.
For the record: I’ve been somewhat critical of NewsGuard’s methodology in the past. To me, their rating system has real limitations, and I think people should take any individual rating with appropriate skepticism. In response to me saying that, some at the company have expressed their own displeasure about my criticism of their methodology. But that’s kind of the whole point. My criticism of NewsGuard is more speech. NewsGuard’s ratings are more speech. Advertisers choosing whether or not to use those ratings are exercising their own rights. Every layer of this is speech and association, all the way down. The one layer that has no business being here is the federal government deciding which speech-about-speech private companies are allowed to subscribe to.
The party that spent years screaming about the “censorship industrial complex” — a supposed conspiracy between government and private entities to suppress disfavored speech — just built an actual censorship apparatus targeting a journalism organization. They used a tortured antitrust theory as the weapon, out-of-context trade association emails as the pretext, and a hand-picked court as the rubber stamp.
And they did it all while claiming to defend free speech.
While the Trump administration’s extremely aggressive, thoroughly bigoted attempts to eliminate as many non-white people from this country as possible have resulted in some periodic push back from law enforcement officials, we can never forget that federal law enforcement officers are still just law enforcement officers. And, more often than not, they’ll always have the support of their brothers in blue, even though most federal officers prefer camo and face masks these days.
Law enforcement is self-selecting. The people who feel drawn to law enforcement are generally the last people you would want to become law enforcement officers. It’s rarely about being given the chance to serve, protect, and be an active part of your community. It’s almost always about having a badge, a gun, and accountability that’s inversely proportional to the amount of power you immediately obtain.
So, it comes as no surprise that cops who shouldn’t have any skin in the anti-ICE game are stepping up to punish people for daring to criticize the actions of those federal officers. And there’s probably a bit of backlash involved here as well, as this following report details the actions of California law enforcement officers who (one assumes) aren’t thrilled the state’s residents have managed to reclaim much of the power that has always been owed to the people.
Despite the administration’s on/off surges in “blue” states, the furor over ICE and its actions hasn’t died down, not even in California, where the administration rolled out its martial law beta test. At first, it was easy to pretend people protesting ICE were “woke radicals” or “antifa” or “paid organizers” or “lazy trans everywhere college students” or whatever. But it just kept going and expanding, clearly demonstrating a significant portion of the population wasn’t on board with roving kidnapping squads and murders of activists by jumpy recruits recently introduced to the wholly domestic War on Migrants.
Now that it’s everyone rather than just the usual left-wing agitprop cliches federal and local officers expected to confront during protests, cops in California are deciding it’s time to start arresting everyone.
The Clovis Police Department on Tuesday referred Alfred Aldrete, 41, for one count of contributing to the delinquency of a minor for his role in a February high school student walkout.
“During the investigation, Aldrete was identified as being present during the walkout and allegedly involved in directing student activity and entering the roadway, which impacted traffic flow,” Clovis police said in a press release. “Investigators also identified Aldrete as being present during a separate student gathering in Clovis on Feb. 5 that occurred outside of school hours.”
Yep, that’s what the Clovis PD actually did: it equated an adult ensuring students made it to their planned protest safely with the sort of horrors — harboring runaways, providing drugs and alcohol to minors, etc. — people usually associate with the crime of “contributing to the delinquency of a minor.” Those would be the sorts of crimes actually prosecuted by county prosecutors under this statute.
This stat may explain why the Clovis PD thought it should explore the fringes of this statute for the sole purpose of punishing someone for speech they (and they people they serve, apparently) don’t care for:
[C]lovis, population 128,000, where Donald Trump won every precinct in the 2024 presidential election — some with more than 70% of the vote.
That tracks. Fortunately, it doesn’t track as far as the District Attorney’s office:
A representative for Fresno County District Attorney Lisa Smittcamp in a written statement said prosecutors would not file charges against Aldrete.
Hooray for prosecutorial discretion, but in the non-pejorative sense! It’s an unexpected twist that only makes this further twist even more inexplicable:
Within a day of the walkout, Clovis police said they were considering charges against up to six adults under Section 272 of the California Penal Code, which is most often used to prevent chronic truancy. The Los Angeles Police Department has also said it’s considering charges against people who joined immigration-related protests under the same penal code section.
At the beginning of Trump’s first martial law-esque surge, the LAPD (and the Los Angeles Sheriffs Department) were opposed to the insertion of National Guard units and other federal officers into the mix. Stating that they were capable of handling whatever minimal “violent protests” they had actually encountered, law enforcement officials made it clear that this federal interloping would only make a manageable problem unmanageable.
More than a year later, the LAPD has flipped the script from blue to red, declaring it’s willing to charge students for truancy (along with the adults who assist them) for participating in walkout that, at best, lasts a few hours. It’s not like these kids are quitting school to pursue a career in protesting. And it’s not like these adults are harming kids by helping them engage fully with their First Amendment rights.
It’s one thing to be the main characters in a pro-Trump town. It’s quite another to be part of the second-largest police force in the United States and decide it’s worth your time, money, and attention to punish people for peacefully protesting. Fuck right off, LAPD. And take the Clovis PD with you.
The Trump administration has restricted the First Amendment right to record law enforcement by issuing an unprecedented nationwide flight restriction preventing private drone operators, including professional and citizen journalists, from flying drones within half a mile of any ICE or CBP vehicle.
In January, EFF and media organizations including The New York Times and The Washington Post responded to this blatant infringement of the First Amendment by demanding that the FAA lift this flight restriction. Over two months later, we’re still waiting for the FAA to respond to our letter.
The First Amendment guarantees the right to record law enforcement. As we have seen with the extrajudicial killings of George Floyd, Renée Good, and Alex Pretti, capturing law enforcement on camera can drive accountability and raise awareness of police misconduct.
A 21-Month Long “Temporary” Flight Restriction?
The FAA regularly issues temporary flight restrictions (TFRs) to prevent people from flying into designated airspace. TFRs are usuallyissued during natural disasters, or to protect major sporting events and government officials like the president, and in most cases last mere hours.
Not so with the restriction numbered FDC 6/4375, which started on January 16, 2026. This TFR lasts for 21 months—until October 29, 2027—and covers the entire nation. It prevents any person from flying any unmanned aircraft (i.e., a drone) within 3000 feet, measured horizontally, of any of the “facilities and mobile assets,” including “ground vehicle convoys and their associated escorts,” of the Departments of Defense, Energy, Justice, and Homeland Security. Violators can be subject to criminal and civil penalties, and risk having their drones seized or destroyed.
In practical terms, this TFR means that anyone flying their drone within a half mile of an ICE or CBP agent’s car (a DHS “mobile asset”) is liable to face criminal charges and have their drone shot down. The practical unfairness of this TFR is underscored by the fact that immigration agents often use unmarked rental cars, use cars without license plates, or switch the license plates of their cars to carry out their operations. Nor do they provide prior warning of those operations.
The TFR is an Unconstitutional Infringement of Free Speech
While the FAA asserts that the TFR is grounded in its lawful authority, the flight restriction not only violates multiple constitutional rights, but also the agency’s own regulations.
First Amendment violation. As we highlighted in the letter, nearly every federal appeals court has recognized the First Amendment right of Americans to record law enforcement officers performing their official duties. By subjecting drone operators to criminal and civil penalties, along with the potential destruction or seizure of their drone, the TFR punishes—without the required justifications—lawful recording of law enforcement officers, including immigration agents.
Fifth Amendment violation. The Fifth Amendment guarantees the right to due process, which includes being given fair notice before being deprived of liberty or property by the government. Under the flight restriction, advanced notice isn’t even possible. As discussed above, drone operators can’t know whether they are within 3000 horizontal feet of unmarked DHS vehicles. Yet the TFR allows the government to capture or even shoot down a drone if it flies within the TFR radius, and to impose criminal and civil penalties on the operator.
Violations of FAA regulations. In issuing a TFR, the FAA’s own regulations require the agency to “specify[] the hazard or condition requiring” the restriction. Furthermore, the FAA must provide accredited news representatives with a point of contact to obtain permission to fly drones within the restricted area. The FAA has satisfied neither of these requirements in issuing its nationwide ban on drones getting near government vehicles.
EFF Demands Rescission of the TFR
We don’t believe it’s a coincidence that the TFR was put in place in January 2026, at the height of the Minneapolis anti-ICE protests, shortly after the killing of Renée Good and shortly before the shooting of Alex Pretti. After both of those tragedies, civilian recordings played a vital role in contradicting the government’s false account of the events.
By punishing civilians for recording federal law enforcement officers, the TFR helps to shield ICE and other immigration agents from scrutiny and accountability. It also discourages the exercise of a key First Amendment right. EFF has long advocated for the right to record the police, and exercising that right today is more important than ever.
Finally, while recording law enforcement is protected by the First Amendment, be aware that officers may retaliate against you for exercising this right. Please refer to our guidance on safely recording law enforcement activities.
Leave it to the president that makes us nostalgic for Nixon-era corruption to claim that a law Nixon made necessary is no longer a law.
The Presidential Records Act was summoned into existence by Nixon’s resignation and his subsequent efforts to destroy records generated by his office as he was fumbling his way towards impeachment. It’s only fitting that the only president to challenge this law is someone who makes Nixon’s corruption look semi-competent.
No one was asking — at least outside of the White House — for the DOJ’s Office of Legal Counsel (OLC) to weigh in on this law. But weigh in it did, tipping the scale heavily towards “Let Trump do whatever he wants,” despite Supreme Court precedent to the contrary. (h/t Jamal Greene)
The OLC issued this opinion [PDF] last Thursday. It basically says Trump isn’t obligated to turn over records to the National Archives and Records Administration (NARA) following his second term as president. Presumably, the opinion is also retroactive, which would prevent NARA from continuing to demand records from his first presidency — something that has led to a lot of the litigation Trump engaged in following his 2020 loss, much of which is quoted by the DOJ OLC in support of elevating Trump above the law yet again.
I’m sure the Supreme Court — the one “stacked” by Trump himself — has inured itself Trump’s steady stream of verbal abuse at this point. But I’m pretty sure the OLC telling the Supreme Court its own precedent is invalid isn’t going to win the DOJ any friends when it comes time to defend this legal opinion in court.
Nonetheless, that’s what the OLC does here. Repeatedly.
Nixon v. Administrator is not only distinguishable. It was also wrong in concluding that the PRMPA’s “regulation of the disposition of Presidential materials within the Executive Branch” was not “a violation of the principle of separation of powers.”
[…]
Nixon v. Administrator was also mistaken in reasoning that the PRMPA was not “unduly disruptive of the Executive Branch” […]
[…]
Nixon v. Administrator was wrong to suggest that the executive privilege provisions of the PRMPA avoided separation of powers concerns, and those concerns apply even more strongly to the PRA.
That’s the sort of thing that only a true Trump acolyte could write. That acolyte would be T. Elliot Glaser, assistant attorney general, who was previously best know for this:
In 2020, Gaiser worked as legal counsel for Donald Trump‘s 2020 presidential campaign.[14] White House press secretary Kayleigh McEnany testified before the House Select Committee on the January 6 Attack that she considered him an expert on constitutional law. Gaiser worked on election litigation after the 2020 presidential election and produced a speech that rejected the results of the election. According to McEnany, the speech appeared similar to one Trump later delivered, and Gaiser “mentioned in passing” the theory that vice president Mike Pence could refuse to recognize electors from certain states.[4]
It’s great to know that yet another election denier is in a federal position of power, especially with mid-term elections only months away. Prior to this, Gaiser clerked for three federal judges: Edith Jones, Neomi Rao, and (of course) Justice Samuel Alito.
Expecting Gaiser to do anything else but propel forward the administration’s presidents-are-kings-actually theory of executive power is delusional. So is Gaiser’s opinion, which simply says everything prior to this legal memo — including Supreme Court precedent regarding a law that’s nearly 50 years old — is wrong.
Either the administration is certain there will never be another regime change or it’s too stupid to realize Democratic Party presidents will have access to the same theory of power being pushed here, which is going to make them look like idiots when it’s being used against them. Neither option is preferable, and there’s a good chance it’s a 50/50 blend of both.
The silver lining is that this isn’t enforceable in any way. But it will have immediate negative effects. It will make freeing up documents from Trump’s term more difficult. And it will keep NARA from attempting to archive anything its does manage to obtain until the (completely illegitimate) legal questions are settled.
The Supreme Court’s latest recap of its relative inactivity (Trump administration “emergency” appeals aside) has delivered yet more evidence of this court’s indifference to rights violations committed by the government. Other cases involving alleged rights violations that should have — at the very least — been handed over to jury for further consideration were tacitly blessed by the top court in the land by its refusal to grant certori.
This one — involving the retaliatory arrest of an independent journalists by cops who didn’t like her reporting — is yet another miscarriage of justice by a Supreme Court whose majority simply won’t take cases that might force it to hold the government accountable for its actions.
This case has bounced up and down the judicial ladder for more than a half-decade. Laredo, Texas native/independent journalist Priscilla Villarreal has been live streaming and reporting via Facebook under the name “Lagordiloca” for several years. Laredo PD officers don’t like her because she asks them questions they don’t like answering and films them when they’re performing traffic stops and arrests.
After Villarreal published information about a Border Patrol officer who had committed suicide, the Laredo PD worked with local prosecutors to have her arrested. All Villarreal had done was ask a PD employee to confirm information she’d already obtained. The PD responded by opening an internal investigation to oust the employee that had responded to Villarreal’s queries. Then it decided the only way for justice to be done was to arrest the person who had merely received confirmation (via a law enforcement employee) she already had in her possession.
Prosecutors claimed Villarreal’s acquisition and publication of this information violated a state law forbidding people from profiting from “misuse of official information.” To support this claim, the prosecutors claimed Facebook clicks were a form of “profit.” To date, no other citizen has ever been prosecuted under this law that was clearly written to prevent government employees from profiting from information only government employees might have access to.
The local judge immediately tossed the bullshit charges immediately after they were presented to her in court. Somehow, the district court managed to look past the obvious First Amendment violations to give the officers immunity. The Fifth Circuit’s first pass reversed this, with Judge Ho making it clear there’s no way any reasonable officer would have thought arresting a journalist simply for asking questions didn’t violate the Constitution.
This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment.
Then things got weird. A couple of judges in the minority thought this shouldn’t stand and started making noise. The Fifth Circuit agreed to an en banc hearing and reissued this opinion with a new dissent written by Chief Judge Priscilla Richman, along with some additional commentary by Judge Ho about how far removed from sanity Richman’s dissent was.
Two years later, it handed down its second take. And the majority somehow came to the conclusion that it’s okay to engage in retaliatory arrests as long as you can find any criminal statute at all to support the arrest. According to Judge Jones, Villarreal should have either limited herself to official channels or challenged the law itself in court, rather than ask a government employee to verify information Villarreal already possessed.
This was appealed. Eight months later, the Supreme Court sent it back down to the Fifth Circuit for yet another pass, instructing it to apply the Trevino standard. That standard is fairly simple: if a law is rarely, if ever, enforced but somehow shows up conveniently to do the cops’ dirty work when they want to retaliate against a person they don’t like, there’s a good chance this selective application is an established violation of rights. In this case, prosecutors had never used this law to charge anyoneever.
The Fifth Circuit’s third pass — again written by Judge Edith Jones — said the Trevino factor just didn’t matter. If the law was on the books (even if it had never been enforced), it was justification enough for the arrest. And even if that arrest violated the Constitution, the officers should still be given qualified immunity because how could they have known that arresting the only person ever charged with this crime in its 23 years of existence might somehow be unconstitutionally retaliatory?
There’s a dissent written by Justice Sotomayor that’s even lengthier than my preamble. It’s worth reading, though, and it starts with this admonishment of the majority’s refusal to write this obvious wrong:
It should be obvious that this arrest violated the First Amendment. Yet the Fifth Circuit held that the officials were entitled to qualified immunity, and now Villarreal is left without a remedy. The Court today makes a grave error by declining to hear this case.
The nation’s top court has decided the Laredo PD and local prosecutors can walk away cleanly from a series of extremely obvious rights violations. And in doing so, it emboldens them (and others) to engage in future retaliatory arrests of journalists they don’t like.
The Supreme Court majority is apparently willing to pretend rights don’t exist when it’s convenient to do so, just like the officers whose actions it tacitly blesses with this particular inaction. Sotomayor drills down on this, rubbing the majority’s nose in its deliberate dismissal of constitutional rights:
[T]he Fifth Circuit found that the officials reasonably believed that they had probable cause to arrest Villarreal for violating §39.06(c). Id., at 385–390. Not so. Just like an individual cannot be convicted of a crime for engaging in First Amendment activity, it is axiomatic that a probable cause determination cannot be based on such protected activity either.
[…]
It necessarily follows that when an arrest is based on protected First Amendment activity, that activity cannot constitute probable cause and support adverse police action. All reasonable officers know this.
[…]
Here, it is hard to conceive of a more obvious constitutional violation than arresting a journalist who, in searching for corroboration, simply asks a government source for information. That is the essence of many journalists’ jobs. The arrest does not somehow become reasonable, and constitutional, merely because an unconstitutional application of a statute authorizes it.
All we have is the dissent. All Villarreal has is knowledge Laredo PD officers and local prosecutors will be digging through the state statutes to find something else to charge her with the next time her reporting pisses them off. The Supreme Court issued a short, clear instruction to the Fifth Circuit, telling it to apply a specific legal standard. Instead, the Fifth Circuit — led by the consistently awful Judge Edith Jones – sidestepped this instruction on its way towards granting the officers qualified immunity. And that deliberate refusal to engage with the Supreme Court’s specific instructions has now been ignored by the same court that strongly hinted the Fifth Circuit got this wrong. It’s a shrug that lets the general public know exactly where it stands: at the bottom of the national organization chart with no layers of protection between them and government officials who seek to do them harm.
