Last week we wrote about how Elon Musk’s xAI had filed a lawsuit to attempt to block Minnesota’s anti-nudify app law. As we tried to explain, even if you (reasonably, understandably) dislike both Elon and “nudify” apps, there were real problems with the Minnesota law. In particular, it was not narrowly tailored to just target truly harmful image edits. Indeed, it wasn’t even limited to the non-consensual use of the tech. The state’s Supreme Court had already handed the Minnesota legislature a clear roadmap for drafting a law like this that would pass strict scrutiny. The legislature ignored it.
However, the lawsuit was filed just days before the law was set to go into effect, which was called out by Minnesota’s Attorney General in arguing against a temporary restraining order:
First, X.AI’s lack of diligence confirms that a TRO is unnecessary. The company waited until the last minute to sue…
And that seemed to influence Judge Donovan Frank, who denied the motion for the TRO mainly because Elon waited until the last minute to file.
The Court respectfully denies the request for a temporary restraining order before tomorrow. xAI filed the motion on July 29, 2026, nearly three months after the law was signed, and only three days before the law is set to take effect. Such a delay in bringing the action and the motion suggests that harm is not immediate.
And, sure, it was kind of silly for Musk to wait right up until the law was set to go into effect, but that’s not all that rare with challenges to these kinds of laws. I also find the court’s suggestion that the harm isn’t immediate a bit odd, given that (as xAI had rightly pointed out) the potential liability under this law is massive: $500,000 per “access, download, or use.” That means any single use of Grok to edit an image that violates this law (which, as we discussed, goes way beyond nonconsensual sexual imagery, and could even cover someone editing a photo of themselves in a way they endorse) could lead to a huge bill for the company. And it’s now in effect, meaning in theory Minnesota’s AG, Keith Ellison, could already seek fines against the company — though there’s no indication that his office has done so yet. And while it may be politically appealing to try to enforce immediately, that may play badly before the court when there are hearings coming up in a few weeks on a preliminary injunction.
It’s also unclear if xAI actually changed anything on its end. In its filing, the company said that if the law went into effect, it would need to restrict access to certain features:
Confronted with $500,000-per-image strict liability and no safe harbor, xAI has no practical choice but to restrict Grok Imagine’s image-editing features in various ways when the statute takes effect on August 1, 2026
But the law has gone into effect, and as far as I can tell, there’s been no announcement of any changes. It’s possible such changes have been made already and just not announced. But it does come off as a bit weak to file a lawsuit on Monday saying that “if this law isn’t fixed by Saturday we’ll make big changes” and then have the law go into effect… and those changes are not publicly announced anywhere.
This ruling may not mean very much at all. The court has ordered both sides to brief a preliminary injunction over the next couple weeks, with a hearing on August 19th that can get into the actual First Amendment problems with the law. That also means xAI will likely have to explain, in those filings, whatever restrictions it has or hasn’t added to its systems.
xAI’s initial filing was not bad, but I hope they lean more heavily on the case I discussed in my last post, in which Minnesota’s Supreme Court spelled out exactly what the state’s non-consensual intimate imagery law needed to survive strict scrutiny. Because that case walks through, in great detail, the steps a (somewhat similar) law had to take to pass strict scrutiny and survive the First Amendment — even as the court acknowledged the law was punishing a form of protected speech.
There remain some oddities around this law, starting with the fact that the ACLU of Minnesota backed it in the first place — a surprising stance for the ACLU — before reversing course once Musk sued:
xAI’s criticism of the law is drawing support from some free-speech advocates including the American Civil Liberties Union of Minnesota, which supported passage of the law in an earlier form in February but has since turned against it.
“While we believe that creating the technology to alter or ‘nudify’ photos of identifiable people is protected by the First Amendment, we also recognize that the non-consensual creation and dissemination of such material can inflict damage on people appearing in those images,” the ACLU of Minnesota said in a statement Friday.
“In engaging with lawmakers on this issue, we hoped to strike an appropriate balance between First Amendment rights and the ability of people harmed to seek remedial measures, not unlike the remedies available to people harmed by defamation. The final version of the bill does not strike that balance,” the organization said.
Seems like the sort of thing you should have worked out before supporting the law, but fine.
Also, I had mentioned in my last article that some believe the law was written so badly on purpose, to convince Musk to sue in order for Democrats to use it as a political tool and… they are certainly making political hay of it on X, where they seem to be overjoyed that they can mock Elon.
And, sure, mocking Elon is fun. But if you’re going to mock him, it should be over the things he’s actually doing that are problematic.
The issue with this law isn’t that it’s trying to deal with the issue of nudify apps. Or that it’s trying to stop Elon from doing terrible things. It’s that it did so in such a ham-fisted, damaging, obviously unconstitutional manner that bans way more than it claims, is not narrowly targeted, and pretty clearly cannot survive strict scrutiny. Minnesota had the roadmap to pass a legitimate version of this law. It chose not to do so. That Musk didn’t receive the immediate TRO due to the late filing doesn’t make the law a good law. The proper thing for Minnesota’s legislature to do would be to write a law that actually abides by the First Amendment, but perhaps that wouldn’t get them the kinds of headlines they’re getting now.
There’s been a bunch of news this week regarding Minnesota’s new law that purports to prohibit “nudification” technology, and the fact that xAI has sued to have the law blocked as unconstitutional. A few things need to be said upfront, because it’s very, very easy to just say the tech is terrible, that Elon Musk and Grok are terrible, and that of course Minnesota should ban it. But it’s also possible that, in the rush to attack very problematic apps built by very problematic people, Minnesota drafted a bad law that is ridiculously overbroad and pretty clearly unconstitutional. And… that is exactly what appears to be the case.
Let’s start with the basics: apps (mostly powered by various AI tools) that are used to produce modified imagery, especially stripping people of their clothes are… bad. They should be socially shunned. People using them to objectify or sexualize others are doing bad things, and people should judge those who use those apps accordingly. This is not a defense of those apps. Similarly, Elon Musk’s Grok and its widely promoted use of putting people (including children) in bathing suits definitely deserves social shunning as well. Norms take time to form, and the shunning here is still catching up to the technology.
But passing a badly drafted, obviously unconstitutional law does not help form those norms. Nor does it punish Elon Musk. Instead, it allows him to act like a First Amendment martyr.
It’s also worth clearing something up early, because a lot of the coverage has gotten it wrong: this is not a law about child sexual abuse material. CSAM is already quite illegal under both state and federal law, and nothing in HF 1606 is limited to images of minors. Had Minnesota drafted a law narrowly targeting AI-generated CSAM, it might have survived a constitutional challenge. That’s not what it did.
And if you want to pass a law to ban technology like this, there are rules under the First Amendment. And, in Minnesota, we even know what some of those rules are. After all, a decade ago, the state also passed a law criminalizing the dissemination of “nonconsensual private sexual images.” After some back and forth in the courts, the Minnesota Supreme Court finally blessed the law as constitutional in late 2020, but made it quite clear that the law went right up to the First Amendment line. It first noted that while the state wanted to claim there’s an entirely new category of unprotected speech (in this case, “substantial invasions of privacy”), the court refused to do so, citing the famed US v. Stevens case (about an attempt to outlaw animal “crush” videos) in which the Supreme Court made it quite clear that it wasn’t open to creating new categories of unprotected speech:
The United States Supreme Court has emphatically rejected “freewheeling” attempts “to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 472; see also Jorgenson, 946 N.W.2d at 604 (“The United States Supreme Court has been reluctant to expand these traditional categories of unprotected speech.”). It is possible, however, there are “some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed.” Stevens, 559 U.S. at 472.
To successfully argue for a new unprotected category of speech, the proponent must present “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792 (2011). This is a heavy burden to bear, and the Supreme Court has recently rejected creating new categories of unprotected speech for animal cruelty, Stevens, 559 U.S. at 472, depictions of excessive violence, Brown, 564 U.S. at 791–93, and false statements, Alvarez, 567 U.S. at 722–23.
In this case, we conclude that the State has failed to carry the heavy burden required to provide a basis to establish a new category of unprotected speech.
And yet, the law was still deemed constitutional, but not because it created a new category of unprotected speech, but rather because it passed strict scrutiny, in which the law is narrowly tailored to use “the least restrictive means” of addressing a compelling government interest. That is the test by which a law can still be deemed viable under the First Amendment, despite suppressing speech. In the case of the nonconsensual imagery bill, the law passed strict scrutiny because it focused very narrowly on a category of speech that is very likely to cause harm, and put in place a law that was narrowly tailored to only target that speech, and on top of that included clear exemptions for edge cases that likely wouldn’t be harmful.
Indeed, the court leaned hard on the fact that the law only reached images disseminated without consent, and only when the disseminator knew or reasonably should have known the subject expected privacy. Those two limits — consent and intent — are what kept the statute from sweeping in vast amounts of protected speech. Some quotes from the court which list out all the factors necessary to pass strict scrutiny.
First, the Legislature explicitly defined the type of image that is criminalized…. Furthermore, the image has to be “obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.” Id., subd. 1(3). Images that do not clear each of these hurdles fall outside the scope of the statute.
Second, a defendant must “intentionally” disseminate the image. … This mens rea requirement means that a defendant must knowingly and voluntarily disseminate a private sexual image; negligent, accidental, or even reckless distributions are not proscribed. This specific intent requirement further narrows the statute and keeps it from “target[ing] broad categories of speech.”
Third, the statute has seven enumerated exemptions…. The statute allows for private sexual images to be distributed “in the course of seeking or receiving medical or mental health treatment.” Id., subd. 5(3). Advertisers, booksellers, and artists are protected because images “obtained in a commercial setting” for legal purposes fall outside the statute’s reach. Id., subd. 5(4). Journalists cannot be prosecuted because there are exemptions for the dissemination of private sexual images that involve matters of public interest and “exposure[s] in public.” Id., subd. 5(4)–(5).8 Educators and scientists are protected because there is an exemption for private sexual images disseminated for “legitimate scientific research or educational purposes.” Id., subd. 5(6). Accordingly, even if protected speech falls within the ambit of subdivision one and a disseminator acted with the requisite mens rea, that person may still be exempt from prosecution under these precise exceptions.
Fourth, to be prosecuted under the statute, a disseminator must act without consent…. This provision provides additional protection for commercial advertisements, certain adult films, artistic works, and other creative expression outside the statute’s scope.
Finally, this statute only encompasses private speech…. Unlike the overly broad statutes at issue in our recent decisions in In re Welfare of A.J.B. and Jorgenson, this statute covers only private sexual images and does not prohibit speech that is “at the core of protected First Amendment speech.”
It was all of that combined that allowed the law to pass strict scrutiny — something that is incredibly difficult to do. Most laws that have to clear strict scrutiny don’t. Here, this law survived with a careful roadmap from the court of how to do so.
One would think that Minnesota legislators would be aware of this ruling and the clear reasons why the law was deemed to pass strict scrutiny and then write an equivalent law with the same elements in trying to ban nudify apps.
But for reasons known only to the Minnesota legislators, they basically ignored every single one of those points.
Minnesota’s anti-nudification tech law is not limited to non-consensual content. This means, as legal commentator Kathryn Tewson noted, that if she uploaded a picture of herself and asked Grok to put her in a bikini, she could by her own hand, cause Grok to break this law. That… seems like a very problematic law.
See, as I read this law, if I uploaded a picture of myself in a sundress and said “Grok, make this a picture of me in a bikini instead,” it would be a violation of the law for Grok to do that. I don’t think that should be illegal.
And, again, the Minnesota Supreme Court has already told the state pretty much exactly how to make this law constitutional: focus on nonconsensual imagery, narrowly tailor it to just the deeply harmful content, include an intent requirement, and include clear delineated exemptions for things that should be allowed.
Minnesota legislators did none of that. Indeed, even the definition of “intimate parts” in the law borrows its definition of ‘intimate parts’ from an earlier statute, covering: “the primary genital area, groin, inner thigh, buttocks, or breast of a human being” — not much of which is inherently sexual, let alone harmful. Tewson offers another example: an edit of a Taylor Swift photo that changes the texture of her fishnet stockings to look more like skin. Whatever tool made that edit just violated Minnesota law.
2. An image generated from this image of Taylor Swift performing on the Eras tour in which the texture of her legs in the modified image appears more similar to actual skin than it does to nude-fishnets-over-nude-tights:
This is, by definition, an overly broad, non-narrowly tailored law.
Another example: last year the TV show South Park did a deepfake parody of Donald Trump, showing a photorealistic version of him wandering naked through the desert, including his “intimate parts.”
Under this law, that video could violate HF 1606. That’s not narrowly tailored. That’s not dealing with intent or focused just on truly harmful content.
One lawyer I spoke to, after reading through the statute, wondered out loud whether the Minnesota legislature had deliberately drafted it in the dumbest way possible just to guarantee a successful challenge. That’s how poorly the law was drafted.
Of course, no one wants to hear that the law is badly drafted. Lots of people want to ban nudify apps and to yell about how ridiculous it is that Elon Musk has gone to court to challenge this law.
But… it’s the sort of thing he should be doing. Otherwise anyone can have Grok put themselves in a bikini and… Minnesota’s Attorney General can demand $500,000 for each such image created, even when the image was created deliberately, by the person in it, of themselves.
xAI (now a division of SpaceX) is right to challenge the law, not because nudify apps are a good thing, but because the law is terribly drafted and pretty clearly exceeds what’s allowed under the First Amendment. The complaint itself is worth a read. For one thing, it explains why xAI last week sued one of its own users for producing CSAM with Grok (which I had found perplexing at the time). It reads a lot like the company wanted a concrete example to put in this filing of how it fights back against those who use Grok in such ways (leaving out, of course, that Elon himself used the app to put himself in a bikini, thereby encouraging others to do the same).
It also explains why that complaint was focused on triggering the indemnity clause in X’s terms of service, which makes the user liable for any legal costs associated with their use of the product. What Musk is really signalling with that lawsuit is if Minnesota’s AG sues us under this law for your usage of the product, we’re going to sue you to cover our costs (which could include the $500,000 fine for any images created).
As the lawsuit notes, the law is just terribly written:
HF 1606 punishes AI platforms that allow users to alter images of real people to depict an “intimate part.” But the statute contains no knowledge, intent, or purpose requirement. It is a strict-liability statute keyed solely to whether a user succeeded in creating a covered image using the AI provider’s platform—regardless of whether the provider prohibits users from using its tool for such a purpose, regardless of how many mitigations the provider has in place, and regardless of how diligently the provider polices such conduct using its tool. There is no safe harbor for good-faith efforts of the provider of general-purpose AI creative tools to avoid harms. Liability attaches even if the depicted persons consented—or created the image themselves—and even if the image is never shared. Liability also attaches even if the image has artistic, scientific, political, satirical, educational, medical, or religious value, and (again) even if the company has deployed near-perfect, state-of-the-art technical controls to prevent the generation of nude images.
Additionally, the law’s definition of “intimate part” is exceptionally broad. Although the federal government and various states have enacted statutes that clearly define nudity for the specific context of AI-generated images, Minnesota rejected such a precise definition. Instead, it borrowed the definition of “intimate part” from a criminal sexual-contact statute. That definition was drafted for nonconsensual touching and thus covers the inner thigh, buttocks, or breast of a man or woman, as well as the groin and primary genital area. HF 1606 accordingly bans ordinary depictions of men without shirts, people in shorts or swimsuits, and other body parts routinely displayed in public—far beyond what an ordinary person would consider “nudification.”
Even worse, as the lawsuit states, the bill’s “principal sponsor” admitted that the law was designed to apply to consensual imagery:
A service used by an adult to edit a photograph of him or herself or a consenting individual is covered on the same terms as a service used to create an image of an unwilling stranger. The statute’s text draws no distinction among them. And this was by design. When a staff member of the Senate Judiciary and Public Safety Committee pointed out that the Act’s “prohibition applies to consensual images,” Senator Maye Quade (the bill’s principal sponsor) explained “that is intentional.”
That is the bill’s main sponsor stating, on the record, that she deliberately chose to leave out one of the very features Minnesota’s own Supreme Court had identified as necessary for a law like this to survive constitutional scrutiny.
That is legislative malpractice.
Since the lawsuit was filed, Maye Quade and other legislators have publicly defended the bill:
“I don’t see this as a free speech issue. This does not regulate content; it does not regulate art. It regulates conduct,” Maye Quade said. “Prompts are not art, and we protect art specifically in this law. It’s pretty audacious to sue to prevent a law that protects children from being turned into child sexual abuse material.”
She’s describing a law she could have written, but didn’t.
Notice what’s missing from that defense: any explanation of why the consent and intent elements the Minnesota Supreme Court specifically identified as saving the 2016 law were left out of this one. Also, she’s just simply incorrect that the law does not regulate speech. Again, if she simply read what the Minnesota Supreme Court said about the nonconsensual intimate imagery law, it spent pages analyzing the nonconsensual imagery statute — a law covering narrower material than this one — as a content-based restriction on speech that had to pass strict scrutiny to survive.
Similarly, the law does not actually “protect art.” Its one and only exemption is if the work “requires the technical skill of a user to nudify an image or video.” That could protect some art, but not all. And it defines art only in a case where a level of skill is needed, which itself potentially creates First Amendment issues in defining what is, and what is not art. There is plenty of modern art that people regularly complain takes no “technical skill” to create.
The complaint itself includes some other examples of what would violate the law, including this (gross) AI-generated image that Trump posted of a slimmed down version of himself, some of his cabinet members, and a randomly generated woman in a bikini sitting in a gleaming blue reflecting pool. Under the law, whatever tool was used to generate that image pretty clearly violated Minnesota’s law:
In this viral snapshot—which President Trump posted publicly— President Trump, Vice President J.D. Vance, Secretary of State Marco Rubio, and Secretary of the Interior Doug Burgum all are portrayed shirtless in the Washington Mall’s reflecting pool, along with an unknown (possibly fictitious) woman.19 An “intimate part” (the breast) of at least the President, Vice President, Secretary of the Interior, and the woman are “depict[ed],” with the Secretary of State also at least arguably included as well. The President posted this image on his personal account, presumably to make light of the public controversy surrounding repairs to the reflecting pool on the National Mall.
Nudify apps are gross. Musk’s encouragement of people to use Grok to de-clothe people is gross. People who use AI tools to “nudify” people are gross. But that doesn’t mean all laws targeting such things are good laws or constitutional.
In this case, despite having clear instructions from its own Supreme Court on how to write a constitutional law, Minnesota’s legislature deliberately chose to write an unconstitutional one. And thus, this lawsuit is the proper thing for SpaceX/xAI/Musk to do.
Supporting the lawsuit is not supporting Elon or Grok or nudify apps. It’s telling every legislature in the country the same thing: if you want the law to survive, learn to draft it in ways that aren’t unconstitutional.
Flock Safety’s aggressive expansion into the law enforcement market has been coupled with nearly constant negative coverage of its tech and its practices. Multiple cities have paused or cancelled their agreements with Flock following public outcry over the surveillance tech.
Flock’s willingness to allow law enforcement agencies to search a nationwide network of cameras has generated plenty of negative headlines of their own, including the fact that Texas cops were using Flock to track someone (possibly) seeking an abortion after she’d already left the state.
Flock’s statements in its defense are, well, super-defensive. It claims it can’t control what cops do with its tech. That’s somewhat true, but it’s also true that Flock has made zero effort to limit abusive access until it’s been forced to by its government customers or outside pressure.
Flock also claims its tech has contributed to investigations and reducing crime. This is probably true but it doesn’t mean all that much when pretty much any extensive surveillance network is going to generate some additional arrests. It’s the trade-off that’s the problem and Flock doesn’t seem to care at all about the millions of people subjected to its surveillance. Martial law would likely lower crime rates, but that’s not a an acceptable justification for martial law.
The problem with ALPR tech being ubiquitous is that it isn’t really making police work better or smarter. Instead, it just seems to be allowing cops to be wrong faster and at scale. And police officials who love this tech will always remind us that there’s a price to be paid to live in a safe society. What they never admit is that they keep changing the price tag with each new rollout of surveillance tech.
Flock’s contribution to the problem means it’s just going to keep making headlines. And while Flock may not be a direct contributor to what’s discussed here, these things wouldn’t have happened if it weren’t for Flock.
First, there’s this story, which involves automotive journalist Joel Felder and the Range Rover he was test driving. His loaner from Range Rover kept getting flagged by Flock as stolen. That Felder is alive to tell his story is more due to his race and location than the so-called police work that resulted in him being ambushed by Minneapolis cops in mall parking lot.
On an otherwise normal Sunday afternoon in late June, I’d decided to take the $155,000 Range Rover I was testing that week out to run some errands with my wife. Little did I know that choice would complete a technological chain linking surveillance cameras, AI, and law enforcement that led to me and my wife being surrounded by police, hands on their guns, in a Kohl’s parking lot in suburban Minnesota.
After dropping off our Amazon returns, we’d just gotten back in the Range Rover and reversed maybe two feet out of the spot when four cop cars came flying out of nowhere and boxed us in. The officers jumped out and started shouting. It’s a situation that can quickly and frequently turn bad, so as unprepared as I was, I followed their orders, got out with my hands up, and tried to figure out what the hell was happening.
It turns out cops in the area had been tracking the Range Rover for days, following alerts from Flock. But they kept losing the trail when Felder returned home. When he passed a Flock camera near his stop, Plymouth, MN police showed up to accost him.
The main problem was something either Flock or the PD could have taken a closer look at. The Range Rover loaner had New Jersey plates. And on NJ plates, two digits are printed smaller than the rest of them.
The New Jersey plates that were allegedly stolen from the LA dealer were 34 03 DTM, not 34 10 DTM. But when the police report was created and the plate was entered into Flock’s system, it was just recorded as 34 DTM. Just the five large characters, no little number in the middle. And Flock’s AI tech wasn’t registering that non-standard little number when it began picking up the Range Rover around town. It just saw 34 DTM in large type and started alerting the local police.
Which means this is also a nationwide problem, on top of being a specifically New Jersey problem. The automated plate readers are reading these plates wrong, meaning any plate starting with 34 and ending with DTM would automatically be flagged as stolen. Who knows how bad that’s going in New Jersey (we’ll wait for those headlines to roll in!), but it’s already a bit of problem in Minnesota, and not just for this particular The Drive contributor.
In fact, four other 34 ## DTM cars were being tracked around Minnesota that week, according to Officer Ganshyn. I was just the first one to get nabbed. The only way to stop it would be for the LAPD to correct their initial report and update Flock’s system, which Jaguar Land Rover was now racing to make happen following the phone call.
And just to let you know how the cop problem possibly outweighs the Flock problem, I’ll let these Plymouth (a suburb of Minneapolis) cops speak for themselves:
“You’re lucky we’re in Plymouth. If you were in Minneapolis, they definitely would’ve come at you with guns drawn.”
Cool cool cool.
No doubt this also kept the gun-play to a minimum, according to the Plymouth PD report:
“I observed the driver, who was a white male wearing shorts and a green shirt, as he was putting something in the back seat of the car. I could also see a white female getting into the front passenger seat…”
But Flock’s contribution to public danger isn’t limited to stolen plates. Its system also tracks vehicles of people who are suspected to have stolen something other than the vehicle they’re riding in. Here’s what happened to an unlucky Colorado resident who found herself on the wrong side of this surveillance tech:
Chrisanna Elser got a summons from Columbine Valley police accusing her of stealing a package. The evidence? A license-plate-reader camera that placed her truck near the scene. The problem? She wasn’t there. According to Denverite, Elser had to dig up her own timestamped truck video and a neighbor’s doorbell camera footage to prove it. Nobody verified the camera’s implication before the summons landed. The camera spoke, and the system listened — no further questions asked.
Elser was forced to prove her own innocence as a cop stood in her doorway. Fortunately, she had the evidence on her phone. Otherwise, who knows what would have happened? Certainly not the officer who did nothing more than convert the faulty data into a summons.
When Elser tried to get the officer to watch the time-stamped video from her truck, the officer told her he simply wasn’t interested in anything she had to show him that might prove her innocence:
On her doorstep, the officer issued a summons, without ever looking at the surveillance video Elser had.
“We can show you exactly where we were,” she told him.
“I already know where you were,” he replied.
It took Elser five weeks to get the charges dropped and it took escalating it to the Chief of Police to get it done. While the chief didn’t go so far as to apologize, he did at least let her know she did a “great job” proving her innocence, when that’s not how it’s supposed to work in the first place.
While I understand the presumption of innocence only really applies once criminal proceedings are underway, law enforcement’s reliance on unreliable tech is now forcing people to document their own movements and actions just as thoroughly as Flock tracks theirs, just in case the cops have it wrong. That’s fucked up. We shouldn’t be obligated to constantly generate a history of our movements just to get bogus criminal charges dropped, especially when we know that doing so just means providing the government with additional ways to track our movements.
When cops are boxing you in as you’re trying to leave the mall, they’re the ones who should be as absolutely sure as possible that their actions are justified. The imbalance of power between citizens and law enforcement demands better from law enforcement, but every new tech tool that cops embrace just makes it easier to make more mistakes faster. There’s nothing out there that even slightly suggests pervasive surveillance is reducing crime, but cops treat everything an algorithm spits out as gospel because it means they won’t have to think for themselves. This is unacceptable. And just because no one got arrested or killed doesn’t mean these errors are harmless.
Several U.S. states are pushing to ban young people from social media entirely. This marks the latest wave of censorship bills masquerading as “children’s online safety” measures, with states like Massachusetts, Idaho, Minnesota, North Carolina, South Carolina, Illinois, and EFF’s home state of California leading the charge.
Just a few years ago, lawmakers supporting age-gating laws insisted their efforts were narrowly targeted at limiting young people’s access to adult content. At the time, we warned that they would not stop there: once the government established the authority and built the infrastructure to collect and “verify” massive troves of user data, it would inevitably sweep broader and broader categories of lawful speech into this mass surveillance and censorship system.
Unfortunately, our predictions came true. As legislators across the country advance proposals that would block all young people from accessing the “modern public square,” the Overton window has shifted dramatically towards mass censorship—and the speed of this shift should concern all of us.
This primer breaks down this dangerous wave of social media bans: how they work (and why they don’t), who they harm, and how we can fight back.
How to Spot a Social Media Ban
The details of these bills vary from state to state. Some (like California’s AB 1709) are a flat-out social media ban for all young people under a certain age, while other states (like South Carolina and Minnesota) allow access to young users who hand over even more data to show verifiable parental consent. Many bills regulate certain social media features, too, including by setting default privacy settings, time limits, or notification preferences for all accounts that fail the age-gate.
As for the age-gating mechanism itself, most proposals fall into two broad categories: age verification bills and behavioral age estimation bills.
Age VerificationBills require online services to collect highly sensitive data, including government ID and biometric information, from all users before either restricting or allowing them access.
For example, take California’s social media ban (AB 1709). Starting in January 2027, operating systems will be required to collect enough information from users to sort them into age groups, or “brackets.” Under AB 1709, social media apps would then use that age bracket information to completely block anyone under 16, while supposedly letting everyone else through. By contrast, Florida’s law (HB 3) takes a more aggressive route by forcing platforms to verify users’ identities directly, usually by contracting with private third-party companies to perform verification services.
Behavioral Age Estimation Bills, on the other hand, are a more recent innovation of states like Minnesota (HF 1438) and South Carolina (H 4591). These bills require platforms to estimate the ages of users based largely on data that they already collect, including self-attested age, behavioral information, and account history and activity. In practice, these bills enable tech companies to use algorithms and/or AI to analyze our online behavior and estimate age based on that.
Proponents of behavioral age estimation bills claim that their proposals avoid the massive security risks that come with mandatory age verification bills. However, much of the data that social media platforms collect from us “in the ordinary course of operation” is collected in order to serve us targeted behavioral ads. If we force platforms to use this imperfect data to make more important judgments about who can access their services, we risk entrenching those insidious data collection practices. Surely we don’t want to give social media companies more reasons to justify and sustain their reliance on this exploitative business model.
If you want to dig into the nuance here, our terminology guide sheds more light on the technical differences between age verification and age estimation bills.
Overall, it’s a lose-lose scenario: either platforms collect new forms of our most sensitive and immutable data, or they unleash their AI and algorithms on our existing behavioral data to make creepy guesses about who we are and what we deserve to see. No matter which age-gating method your state chooses to execute its social media ban, there will be lots of error at the margins—and lots of users who will be blocked or chilled from access to lawful online speech.
Why Social Media Bans Are So Dangerous
Social media bans are unconstitutional, discriminatory, and deeply misguided. They reinforce existing structures of oppression, and they are broadlyunsupported by young people, whose voices are conspicuously absent from this conversation. They undermine parental decision-making and replace tailored family-level solutions with a one-size-fits-all band-aid. And, in the places we have seen social media bans go into effect, early reports show that they don’t evenwork.
For example, in Australia, where a social media ban has been in effect since late 2025, a majority of young people can still access social media, those who can’t have lost their access to the news, and crisis helplines are reporting skyrocketing numbers of calls from youth left stranded without online community or resources.
We could go on and on about all of the inherent harms here, but we’ll try to keep this short as we walk through some of the major issues.
1. Security Risks and Privacy Harms
In order to ban some users, social media platforms first must confirm the ages of all users, regardless of age. Bans thus incentivize companies to force users of all ages to hand over government IDs, face scans, and other sensitive information. When parental consent is required, companies must collect even more verification data and often create explicit links between child and parent accounts—further destroying users’ anonymity.
Both of these databases create massive data “honeypots” that invite identity theft and permanent surveillance. We’ve already seen repeated data breaches involving age- and identity-verification services. Yet these laws would force both adults and the youth they claim to protect to feed their most sensitive data into this growing surveillance ecosystem.
If we don’t trust tech companies with our private information now, we shouldn’t pass laws that force us to give them even more of it.
2. Disproportionate Harm to Vulnerable Communities
Where these bills require parental consent, they impose disproportionate access barriers on low-income, non-traditional, and immigrant families. These sorts of families are more likely to share a single family device or have strong reasons to not want the government to track family associations and ID documents.
Beyond the technical failures, these bans cut off a vital lifeline. For LGBTQ+ youth, foster kids, and those stuck in unsupportive home environments, social media is often the only place to find community, explore their identity, or access life-saving resources. Forcibly removing young people isolates those who need connection the most, while creating massive new barriers for adults.
Social science indicates that moderate internet use is a net positive for teens’ development, and negative outcomes are usually due to either lack of access or excessive use. For LGBTQ+ and marginalized youth in particular, social media offers an essential space to access support they might lack offline. By forcing youth into digital isolation, these bans cut off vital access to political news, community, and health resources. They also completely ignore the calls of young people themselves who favor digital literacy and education over restrictive government control.
Instead of cutting off these lifelines, we should support measures that arm all youth (and the adults in their lives) with the knowledge they need to navigate online spaces safely.
4. Reckless Free Speech Violations for Users of All Ages
No matter your age, the First Amendment protects your right to speak and access information.
Blanket social media bans immensely and unconstitutionally chill all users’ exercise of this right. They cut off young people’s access to lawful speech, or ruin their privacy in the home by mandating parental consent and sometimes even parental access to their account activities and settings. They force all users (adults and young people alike) to hand private information over to tech companies before speaking or accessing information on social media platforms, imposing annoying obstacles on lawful online expression and wrongfully blocking some adults outright.
Critically, these bans destroy our right to online anonymity—a cornerstone of our right to free expression that protects whistleblowers, journalists, activists, immigrants, and everyone who has ever used a private browser or account to ask the internet an embarrassing question.
How to Fight Back
Social media bans weaponize parents’ concerns about children’s safety to justify unprecedented levels of surveillance and censorship. In the process, these laws deny young people their rights, threaten online anonymity for everyone, expose our sensitive personal data to breach and abuse, and replace parental decision-making with state authority. This is a battle over the future of the open, private, and free internet, and we must act now to protect it.
Here’s how you can help us fight back: Talk to your community (including young people!) about what’s at stake. If you’re a parent, lean on open conversations and platforms’ existing tools to tailor your child’s experiences instead of handing that power over to the government. And no matter where you live, contact your government representatives and tell them clearly that social media bans are not the answer to kids’ online safety.
After an Immigration and Customs Enforcement agent shot and killed Renee Good, a 37-year-old mother of three who’d recently moved to Minneapolis, local law enforcement officials requested a partnership with the federal government to investigate the case, as they’d done in past shootings involving federal agents.
When the Trump administration refused to cooperate, Minnesota prosecutors ratcheted up their efforts. They sent a series of strongly worded legal letters demanding evidence in the Good shooting as well as the shootings of Julio Cesar Sosa-Celis, a Venezuelan immigrant who was wounded a week after Good was shot, and Alex Pretti, who was killed on Jan. 24.
Still, the administration rebuffed the requests.
This week, prosecutors from Hennepin County and the state of Minnesota took the next step to force the Trump administration’s hand. They filed a federal lawsuit against the departments of Homeland Security and Justice over the evidence in the shootings, an action that Hennepin County Attorney Mary Moriarty, whose jurisdiction covers Minneapolis, characterized as “unprecedented in American history.”
The Trump administration has declined to release the names of the agents involved in the shootings, even after the Minnesota Star Tribune and ProPublica identified the officers involved in the Good and Pretti incidents.
“The federal government has refused to cooperate with state law enforcement, which is unique, rare and simply cannot be tolerated,” Minnesota Attorney General Keith Ellison told reporters. “[We] can’t sit around and let them do it.”
In the standoff over evidence, the case has already become a game of constitutional chicken over states’ rights versus federal immunity, a battle that will have implications for others who wish to hold agents in the president’s immigration surge criminally accountable.
So far, neither side is showing signs of backing down, foreshadowing a fight that could take years. If prosecutors do eventually file charges against federal agents involved in the shootings, legal experts said the path to trial, much less winning convictions, will be filled with legal and procedural challenges.
“State prosecutors across the country are going to be watching what happens in Minnesota really closely,” said Alicia Bannon, director of the judiciary program at the nonprofit Brennan Center for Justice.
The first test for prosecutors, if they file charges, would be to prove the agents don’t qualify for immunity through the Constitution’s supremacy clause, a rarely invoked legal doctrine that protects federal officers from state prosecutions if they’re acting lawfully and within the scope of their duties.
Failing to pass that test would likely end the case.
The U.S. Supreme Court hasn’t taken up a case involving supremacy clause immunity in over 100 years, Bannon said, and judges have come down differently on legal issues related to its application.
There’s no easy answer as to whether Minnesota will be able to get past a supremacy clause defense, said Jill Hasday, a constitutional law professor at the University of Minnesota.
“That depends on the facts, but probably the odds are stacked against it,” she said.
Even if they survive such a fight, the cases could be dogged by a series of logistical challenges. Moriarty, who has been leading the investigations, has decided not to seek reelection and will leave office at the end of the year. That means whoever wins the election for her seat in November could inherit the prosecutions.
In addition to not having the names of the agents, prosecutors don’t know where those agents are now. Minnesota may need to extradite them, potentially from a MAGA-leaning state that may balk at sending them to Hennepin County to stand trial.
“Will the federal government or other states cooperate with that? I think the answer to that is sort of iffy,” said Ilya Somin, a law professor at George Mason University in Virginia. (Indeed, in a case involving a doctor charged with illegally mailing abortion medication to a Louisiana woman, the state of California has rejected an extradition request, citing its own laws protecting doctors from prosecution elsewhere.)
The fight is focused on three shootings. But Moriarty’s office has opened criminal investigations into 14 additional cases of potentially unlawful behavior by federal agents during Operation Metro Surge, which started in early December and has wound down over the past few weeks.
The other cases Moriarty is examining involve allegations of excessive force or other misconduct by federal agents, such as an incident in early January in which agents allegedly used force on staff and students on the grounds of a high school.
Prosecutors are also investigating Gregory Bovino, the outgoing Border Patrol commander who helped to lead immigration surges into several American cities and who was seen on video lobbing green-smoke canisters into crowds at a park in Minneapolis. A Department of Homeland Security spokesperson said at the time that Bovino and other agents were responding to a “hostile crowd.”
The tension has played out in a series of demand letters sent by Moriarty to the Justice and Homeland Security departments. “Public transparency is vitally important in these cases — not just for the people of Hennepin County and Minnesota, but for the public nationwide,” Moriarty wrote in one of the letters. “The only way to achieve transparency is through investigation conducted at a local level.”
In January, after the shooting of Good, federal officials had agreed to participate in a joint investigation with the Bureau of Criminal Apprehension — Minnesota’s state police agency tasked with examining use of deadly force cases — according to the letters signed by Moriarty.
State officials presumed they’d be able to examine evidence, such as the car Good was driving and the guns used to shoot her and the other victims. But the investigators later learned through public statements by high-ranking Trump administration officials that federal agents were no longer planning to share evidence, the letter states.
Local and state prosecutors don’t have the authority to subpoena them for evidence like in a typical criminal investigation. The demand letters, called Touhy letters, are formal written requests, used as an alternative to a subpoena, asking a federal agency to provide evidence or testimony in a case in which the government is not a party. Moriarty sought an extensive list of evidence in the shootings, from the guns fired by the agents in all three cases to official reports, agent GPS devices and witness statements. The Touhy letters asked for a response by Feb. 17.
Normally, the federal government complies with Touhy letters as a matter of protocol, as long as releasing the information doesn’t violate an internal policy, said Timothy Johnson, a political science and law professor at the University of Minnesota.
But on Feb. 13, the FBI told BCA investigators that it won’t share investigative materials in the Pretti case, BCA Superintendent Drew Evans said in a statement. Evans said the police agency had reiterated its requests for evidence in the Good and Sosa-Celis cases.
More than a month after the deadline set by prosecutors, the Trump administration still hasn’t turned over the materials.
“There has been no cooperation from federal authorities,” BCA spokesperson Michael Ernster said.
The agents involved in the shootings have not spoken publicly, but a spokesperson for the Department of Homeland Security defended Good’s shooting, saying the agent acted in self-defense. They said the Pretti shooting was under investigation by the FBI and the Department of Homeland Security, with the Border Patrol conducting its own investigation. Those investigations could result in discipline or charges, including for civil rights violations.
The Department of Homeland Security spokesperson said federal officials found that, after Sosa-Celis’ shooting, officers made false statements. But the agency did not say whether it would cooperate with the local authorities or follow a court ruling requiring it to do so.
The Justice Department did not respond to a request for comment or to questions. Neither agency has responded to the lawsuit.
Moriarty called the lawsuit “critically important” to investigating the shooting cases but also said she had not made any decisions on whether her office will file charges.
“There has to be an investigation anytime a federal agent or a state agent takes the life of a person in our community,” she said. “And ultimately the decision may be it was lawful. You don’t know, but that’s why you do the investigation. You are transparent with the results of that investigation, and you are public with your transparency about the decision and how you got there.”
But a lawsuit does not guarantee that prosecutors will get all they want. “The question then becomes, even if Hennepin County or Minneapolis wins the suit, will they comply then?” Johnson asked. “And the answer is probably no.”
If the Trump administration did eventually defy a judge’s order, he said, prosecutors could try to appeal up to the U.S. Supreme Court. As far as what could happen next: “It’s anyone’s guess.”
When Rep. Leigh Finke spoke last month before the Minnesota House Commerce Finance and Policy Committee to testify against HF1434, a broad-sweeping proposal to age-gate the internet, she began with something disarming: agreement.
“I want to support the basic part of this,” she said, the shared goal of protecting young people online. Because that is not controversial: everyone wants kids to be safe. But HF1434, Minnesota’s proposed age-verification bill, simply won’t “protect children.” It mandates that websites hosting speech that is protected by the First Amendment for both adults and young people to verify users’ identities, often through government IDs or biometric data. As we’ve discussed before, the bill’s definition of speech that lawmakers deem “harmful to minors” is notoriously broad—broad enough to sweep in lawful, non-pornographic speech about sexual orientation, sexual health, and gender identity.
Rep. Finke, an openly transgender lawmaker, next raised a point that her critics have since tried to distort: age-verification laws like the Minnesota bill are already being used to block young LGBTQ+ people from exercising their First Amendment rights to access information that may be educational, affirming, or life-saving. Referencing the Supreme Court case Free Speech Coalition v. Paxton, she noted that state attorneys general have been “almost jubilant” about the ability to use these laws to restrict queer youth from accessing content. “We know that ‘prurient interest’ could be for many people, the very existence of transgender kids,” she added, referring to the malleable legal standard that would govern what content must be age-gated under the law.
But despite years’worth of evidence to back her up, Finke has faced a wave of attacks from countless mediaoutlets and religious advocacy groups for her statements. Rep. Finke’s testimony was repeatedly mischaracterized as not having young people’s best interests in mind, when really she was accurately describing the lived reality of LGBTQ+ youth and advocating in support of their access to vital resources and community.
In fact, this backlash proves her point. Beyond attempting to silence queer voices and to scare other legislators from speaking up against these laws, it reveals how age-verification mandates are part of a larger effort to give the government much greater control of what young people are allowed to say, read, or see online.
Rep. Finke was also right that these proposals are bad policy; they prevent all young people from finding community online, and that they violate young people and adults’ First Amendment rights.
In FSC v. Paxton, the Supreme Court gave Texas the green light to require age verification for sites where at least one-third of the content is sexual material deemed “harmful to minors,” which generally means explicit sexual content. This ruling, based on how young people do not have a First Amendment right to access explicit sexual content, allows states to enact onerous age-verification rules that will block adults from accessing lawful speech, curtail their ability to be anonymous, and jeopardize their data security and privacy. These are real and immense burdens on adults, and the Court was wrong to ignore them in upholding Texas’ law.
But laws enacted by other states and Minnesota HF 1434 go further than the Texas statute. Rather than restricting young people from accessing sexual content, these proposals expand what the state deems “harmful to minors” to include any speech that may reference sex, sexuality, gender, and reproductive health. But young people have a First Amendment right to both speak on those topics and to access information online about them.
We will continue to fight against all online age restrictions, but bills like Minnesota’s HF 1434, which seek to restrict young people from accessing speech about their bodies, sexuality, and other truthful information, are especially pernicious.
EFF and Rep. Finke are on the same page here: age verification mandates create immense harm to our First Amendment rights, our right to privacy, as well as our online safety and security. These proposals also fully ignore the reality that LGBTQ young people often rely on the internet for information they cannot get elsewhere.
But the Paxton case, and the coalition behind it, illustrates exactly how these laws can be weaponized. They weren’t there just to stand up for young people’s privacy online—they were there to argue that the state has a compelling interest in shielding minors from material that, in practice, often includes LGBTQ content. Ultimately, these groups would like to age-gate not just porn sites, but also any content that might discuss sex, sexuality, gender, reproductive health, abortion, and more.
Using Children as Props to Enact Censorship
The coalition of organizations that filed amicus briefs in support of Texas’s age verification law tells us everything we need to know about the true intentions behind legislating access to information online: censorship, surveillance, and control. After all, if the race to age-gate the internet was purely about child safety, we would expect its strongest supporters to be child-development experts or privacy advocates. Instead, the loudest advocates are organizations dedicated to policing sexuality, attacking LGBTQ+ folks and reproductive rights, and censoring anything that doesn’t fit within their worldview.
Below are some of the harmful platforms that the organizations supporting the age-gating movement are advancing, and how their arguments echo in the attacks on Rep. Finke today:
Policing sexuality, bodily autonomy, and reproductive rights
Many of the organizations backing age-verification laws have spent decades trying to restrict access to accurate sexual health information and reproductive care.
Groups like Exodus Cry, for example, who filed a brief in support of the Texas AG in the SCOTUS case, frame pornography as part of a broader moral crisis. Founded by a “Christian dominionist” activist, Exodus Cry advocates for the criminalization of porn and sex work, and promotes a worldview that defines “sexual immorality” as any sexual activity outside marriage between one man and one woman. Its leadership describes the internet as a battleground in a “pornified world” that has to be reclaimed. Another brief in support of the age-verification law was filed by a group of organizations including the Public Advocate of the United States (an SPLC-designated hate group) and America’s Future. America’s Future is an organization that was formed to “revitalize the role of faith in our society” and fiercely advocates in favor of trans sports bans.
These groups see age-verification laws as attractive solutions because they create a legal mechanism to wall off large swaths of content that merely mentions sex from not only young people but millions of adults, too.
Attacking LGBTQ+ Rights
Several of the most prominent legal advocates behind age-verification laws have also led the crusade against LGBTQ+ equality. The internet that these groups envision is one that heavily censors critical and even life-saving LGBTQ+ resources, community, and information.
The Alliance Defending Freedom (ADF), for instance (which is another SPLC-designated hate group), built its reputation on litigation aimed at rolling back LGBTQ+ protections—including allowing businesses to refuse service to same-sex couples, criminalizing same-sex relationships abroad, and restricting transgender rights.
Then there’s other groups like Them Before Us and Women’s Liberation Front, both of whichsubmitted amici in support of the Texas Attorney General and are devoted to upending LGBTQ+ rights in the United States. Them Before Us says it’s “committed to putting the rights and well-being of children ahead of the desires and agendas of adults.” But it’s also running a campaign to “End Obergefell,” the 2015 Supreme Court case that upheld the right to same-sex marriage, and has been on the cutting edge of transphobic campaigning and pseudoscientific fearmongering about IVF and surrogacy. The Women’s Liberation Front, on the other hand, is an organization that has a long track record of supporting transphobic policies such as bathroom bills, bans on gender-affirming healthcare, and efforts to define “sex” strictly as the biological sex assigned at birth.
Through cases like FSC v. Paxton, groups like these three continue to advance a vision of society that creates government mandates to enforce their worldviews over personal freedom, while hiding behind a shroud of concern for children’s safety. But when they also describe LGBTQ+ people as “evil” threats to children and run countless campaigns against their human rights, they are being clear about their intentions. This is why we continue to say: the impact of age verification measures goes beyond porn sites.
Expanding censorship beyond the internet into real-life public spaces
As we’ve said for years now, the push to age-gate the internet is part of a broader campaign to control what information people can access in public life both on- and offline. Many of the same organizations advancing these proposals claim to be acting on behalf of young people, but their arguments consistently use children as props to justify giving the government more control over speech and information.
Many of the organizations advocating for online age verification have also supported book bans, attacks on DEI policies and education, and efforts to remove LGBTQ+ materials from schools and libraries. Two of the organizations who supported the Texas Attorney General, Citizens Defending Freedom and Manhattan Institute, have led campaignsaround the country to “abolish DEI” and ban classical books like “The Bluest Eye” by Toni Morrison from school libraries. These efforts are not different from the efforts to restrict access to the internet—they reflect a broader strategy to restrict access to ideas or information that these groups find objectionable. And they discourage free thought, inquiry, and the ability for people to decide how to live their lives.
These campaigns rely on the same core argument, that certain ideas are inherently dangerous to young people and must therefore be restricted. But that framing misrepresents an important reality: if lawmakers genuinely want to address harms that young people experience online, they should start by listening to young people themselves. When EFF spoke directly with young people about their online experiences, they overwhelmingly rejected restrictions on their access to the internet and came back with nuanced and diverse perspectives. Once that principle—that certain ideas are inherently dangerous—is accepted, the internet, once a symbol of free expression, connection, creativity, and innovation, becomes the next logical target.
This also wouldn’t be the first time a vulnerable group is used as a prop to advance internet censorship laws. We’ve seen this playbook during the debate over FOSTA/SESTA, where many of the same advocates claimed to speak for trafficking victims/survivors and sex workers, while pushing legislation that ultimately censored online speech and harmed the very communities it invoked. It’s a familiar pattern: you invoke a vulnerable group, frame certain speech as a threat, and use that as a way to expand government control over the flow of information. And as we said in the fight against FOSTA: if lawmakers are serious about addressing harms to particular communities, they should start by talking to those communities. This means that lawmakers seeking to address online harms to young people should be talking to young people, not groups who claim their interests.
Rep. Finke Was Not Radical. She Was Right.
The Paxton case, and the coalition backing age verification laws in the U.S., shows us exactly why the messaging around these laws draws superficial support from parents and lawmakers. But we’ve heard the quiet part said out loud before. Marsha Blackburn, a sponsor of the federal Kids Online Safety Act, has said that her goal with the legislation was to address what she called “the transgender” in society. When lawmakers and advocacy groups frame queer existence itself as a threat to young people, age-verification laws become ideological enforcement instead of regulatory policy.
In defending free speech, privacy, and the right of young people to access truthful information about themselves, Rep. Leigh Finke was not radical—she was right. She was warning that broad, ideologically driven laws will be used to erase, silence, and isolate young people under the banner of child protection.
What’s at stake in the fight against age verification is not just a single bill in a single state, or even multiple states, for that matter. It’s about whether “protecting children” becomes a legal pretext for embedding government control over the internet to enforce specific moral and religious judgments—judgments that deny marginalized people access to speech, community, history, and truth—into law.
And more people in public office need the courage of Rep. Finke to call this out.
Not a day goes by that its hypocrisy isn’t exposed. Here’s the latest, which certainly isn’t the last: the DOJ’s insistence that government employees be given preferential treatment in court.
Multiple bullshit prosecutions are underway, with AG Pam Bondi’s DOJ hoping to convert regular protest stuff into long-lasting federal felony charges. This hasn’t gone well for the DOJ, which tends to find itself rejected by grand juries when not getting its vindictive prosecutions tossed because they’ve been brought by prosecutors who don’t have legal claim to the positions they’re holding.
While the government continues to make social media hay by tweeting out wild allegations and the personal information of people who have yet to have their day in court, it simultaneously claims it should be illegal to identify federal officers and post their information to social media.
And while that’s just the government being hypocritical in terms of social media blasts, it’s engaging in another level of hypocrisy that’s not as easily dismissed. As Josh Gerstein reports for Politico, Attorney General Pam Bondi’s personal participation in this form of hypocrisy is not only inexcusable, but it’s also on the wrong side of the law.
Two federal judges have raised concerns about Attorney General Pam Bondi’s use of social media to publicize a wave of arrests last month of people charged with interfering with federal officers during an immigration enforcement surge in Minnesota.
When the government seeks protective orders to shield the details of cases from the public eye, the order applies to the government as much as it does to the defendants. But since Bondi can’t keep herself from scoring internet points on behalf of the Trump administration, she’ll be lucky to keep these particular prosecutions going.
That’s the upshot of this court order [PDF], handed down by Minnesota federal judge Dulce Foster:
As a threshold matter, the government’s claimed concern about the victim/agents’ “dignity and privacy” and the risk of doxxing is eyebrow-raising, to say the least. On January 28, 2026, at 12:53 p.m., Attorney General Pam Bondi publicly posted a tweet on X announcing, to a national audience, that Ms. Flores was arrested along with 15 other people as “rioters” who “have been resisting and impeding our law enforcement officers.” […] In publicly posting that information, the government failed to respect Ms. Flores’s dignity and privacy, exposed her to a risk of doxxing, and generally thumbed its nose at the notion that defendants are innocent until proven guilty. The post also directly violated a court order sealing the case (ECF No. 6), which was not lifted until the Court conducted initial appearances later that day (see ECF No. 7).
If the argument is that it’s dangerous for federal officers to be publicly identified but perfectly fine for random citizens to be exposed to threats of violence, the argument is deeply flawed. At worst, it’s the most powerful people arguing that the least powerful people should be exposed to the same sort of stuff they claim federal officers might be exposed to if their names are made public.
At best, it’s a tacit admission that more people are opposed to this administration’s actions than are opposed to the actions of those who engage in protests. If the DOJ really believed what the government is doing was good and supported by a majority of the public, it wouldn’t seek protective orders preventing the release of personal information.
But that’s not the case it made in court. And courts are now refusing to pretend the government is operating in good faith when it says some personal information is more equal than other personal information.
This determination was echoed in another court decision dealing with a Minneapolis-based prosecution:
At a hearing in a separate Minneapolis case last week, another magistrate judge, Shannon Elkins, directed prosecutors to “address whether the public posting of photographs violated the Court’s sealing order.” The government missed a deadline Tuesday to respond. Elkins later agreed to extend the deadline until Monday.
In the first case, the judge gave the government what it wanted, but applied those desires to both parties in the prosecution. If the defense team is barred from publicly revealing information about the government officers, the government is likewise barred from making information about the defendants public. It doesn’t get to have it both ways.
While it would have been somewhat refreshing to see the court allow the defendants to release whatever information they’d gathered about the federal officers to, I guess, make things even, I also recognize “two wrongs make a right” is no way to run a judicial system. I do say that very hesitantly, however. After all, we’re being governed by people who believe that even if they purposefully do wrong, there’s no power that can stop them. But there’s little that’s more satisfying than beating cheaters at their own game while playing by the rules. Hopefully, this great nation will be able to weather the constant attacks on what makes it great by people who are seeking to destroy it from the inside.
Checks and balances. That’s the mantra. That’s what makes America great. That’s the system we deployed to prevent being just another iteration of the British empire.
It was never perfect, but it seemed to get the job done most of the time. The gentleman’s agreement underlying this system tended to hold up even when bad faith abounded.
It’s just not working anymore. The legislative branch — under a GOP majority — has basically decided to relinquish all of its power to the executive branch. The judicial branch has made its feelings known about the administration’s refusal to act in good faith, but really hasn’t done anything to prevent it from continuing to behave like an extended middle finger to the rule of law.
This government cannot be trusted. That would mean something if it actually seemed to care about being trusted. It doesn’t. It is a law unto itself, almost completely devoid of oversight.
This government continues to pretend it’s in the business of deporting dangerous foreigners from this country. Its actions say otherwise. A government that just wanted to rid the nation of dangerous criminals wouldn’t need to hang around courthouses to ambush migrants who are following the rules they’re supposed to follow to be allowed to remain in the United States. A government that isn’t beholden to racists and a red-tied megalomaniac wouldn’t send government lawyers to dismiss pending immigration cases just so ICE officers can arrest people for not being born here.
Trump’s Minnesota revenge tour may be drawing to a close, but that doesn’t mean his administration officials and officers won’t keep trying to do whatever they can to punish people in “blue” states simply for living there.
Nazi cosplayer/Border Patrol commander Gregory Bovino may have been sent back to the border for being a bit too much now that federal officers are routinely murdering people. But the ICE agents remaining in Minnesota are better people than they were a few weeks ago. And “border czar” Tom Homan isn’t much of an upgrade. Being a relative moderate in a sea of anti-migrant extremists just means Homan’s probably headed for a demotion or dismissal himself.
On Feb. 6, [Minnesota Supreme Court Chief Justice Natalie] Hudson met with Homan and ICE St. Paul field office Director Sam Olson to make several requests of the federal government including: that ICE no longer conduct operations inside Minnesota courthouses; that if they need to operate inside a courthouse they do it in “low-traffic areas” and not inside courtrooms; that ICE agents not bring long guns into courthouses; that ICE coordinate with local sheriff’s offices before conducting operations at or near courthouses; and that ICE provide a local point of contact to improve communication with the courts.
Hudson’s requests were largely accepted, according to Kyle Christopherson, spokesperson for the Minnesota Judicial Branch, who confirmed details of the meeting and the agreement.
Homan and Olson made several commitments, including to conduct future operations outside of courthouses, “unless safety requires officers to enter,” and that Olson would serve as a local point of contact for the courts with federal agents. Homan agreed that ICE agents would not make arrests inside courtrooms and that it was not ICE policy to bring long guns into courthouses.
Any government agency not beholden to racist asshats like Stephen Miller and his “3,000 arrests per day” quota would have accepted this compromise in good faith, especially when the agreement was made in secret, preventing anyone from portraying it as a partisan win or loss. Tom Homan and his underlings wouldn’t lose face and the sanctity of courthouses would be respected as they almost always had been prior to Trump’s second term.
Almost immediately, it was made clear that it’s a waste of time to treat the administration like an adult.
18-year-old Herrera Berrios was the person detained by ICE officers, in an obvious violation of this agreement between the state Supreme Court justice and ICE officials. Berrios was chased through the courthouse before being tackled and cuffed on the lawn. After this happened, the government argued Berrios was subject to removal under Title 8 immigration law. That didn’t impress the presiding judge in Berrios’s case, who not only ordered his release, but criticized the government for its lack of a judicial warrant, as well as its attempt to use a law that applies to people “arriving” in the US to punish someone who had already been here for three years.
Berrios was in court to make an appearance after being charged with first-degree drug possession. These are still just allegations. Berrios otherwise has no criminal record. That means the pursuit and detainment here was performed just because the government wanted to, not because it needed to. And none of that backs up the claims made by the now-former front mouth for the DHS, Tricia McLaughlin.
Tricia McLaughlin, the assistant secretary for the Department of Homeland Security, called Frank an activist judge appointed by former President Bill Clinton who had “released a criminal with drug charges back onto American communities.”
Drug charges? Yes. Criminal? Well, Berrios never received his day in court, so it’s a stretch to call someone still presumed innocent a “criminal” when all they’re facing are the government’s unproven allegations. And if you’re just as opportunistically stupid as McLaughlin, you could pretend this refers to Berrios’ undocumented status. But that would be like claiming an “activist judge” released a “criminal with drug charges” when the person being released was behind on their property taxes. Being undocumented is a civil violation, not a criminal violation, even if both refer to things that are against the law.
But this isn’t about what Berrios did or didn’t do. If he was a criminal, then evasion and eventual arrest are just part of that process. But ICE specifically promised a state justice sitting at the top level of the state’s court system that it wouldn’t do this sort of thing. And then it went out and did it anyway, less than a week after making that promise. The government is supposed to hold itself to a higher standard. Under Trump, it refuses to hold itself to any standard at all, which is making it exceedingly clear the usual “checks and balances” stuff just isn’t going to get the job done.
The ICE surge in Minneapolis, Minnesota was instigated by a far-right click bait artist and encouraged by the president’s portrayal of Somali immigrants as “garbage” people from a “garbage” country. And those were some of the nicer words Trump used to describe the people his agencies would be hunting down first.
Several weeks later, a draw-down has begun, prompted by two murders committed by federal officers, an inability to obtain indictments against protesters, and every narrative about violence perpetrated by federal officers disintegrating the moment the government was asked to provide some evidence of its claims to the court.
Hundreds of judges in hundreds of immigration cases have found that the government has routinely violated the due process rights of the immigrants it has arrested. This dates all the way back to the beginning of Trump’s second term, but months of roving patrols by masked men with guns has created a massive influx of cases courts are still trying to sort out. But one thing is clear: the government will do anything it can to keep the people it arrests from availing themselves of their constitutional rights.
This starts with the arrests themselves, which most often occur without a judicial warrant. The same goes for the invasion of people’s houses and places of business. With the Supreme Court giving its tacit blessing to casual racism (the so-called “Kavanaugh stops”), anyone who looks less than white or whose English has a bit of an accent is considered reasonably suspicious enough to detain.
The government has been on the losing end of hundreds of cases involving due process rights. This decision [PDF], coming to us via Politico’s Kyle Cheney, details the massive amount of constant movement this government engages in to keep people separated from their rights and physical freedom.
It opens with this:
Immigrations and Customs Enforcement (“ICE”) recognizes that noncitizen detainees have a constitutional right to access counsel. But in recent weeks, ICE has isolated thousands of people—most of them detained at the Bishop Henry Whipple Federal Building—from their attorneys. Plaintiffs, who are noncitizen detainees and a nonprofit that represents noncitizens, have presented substantial, specific evidence detailing these alleged violations of the United States Constitution. In response, Defendants offer threadbare declarations generally asserting, without examples or evidence, that ICE provides telephone access to counsel for noncitizens in its custody. The Plaintiffs’ declarations provide specifics of the opposite. The gulf between the parties’ evidence is simply too wide and too deep for Defendants to overcome.
It’s not like ICE can’t provide detainees with access to attorneys or respect their due process rights. It’s that they choose not to, now that Trump is in charge. The access is theoretically possible. It’s just being purposefully denied. And it’s not even just being denied in the sense that phone call requests are being refused. People detained by ICE are placed into a constant state of flux for the sole purpose of making it as difficult as possible for them to avail themselves of their rights.
The devil is in the details. And the court brings plenty of those, all relating to the administration’s “Operation Metro Surge” that targeted Minneapolis, Minnesota:
Detainees are moved frequently, quickly, without notice,and often with no way for attorneys to know where or how long they will be at a given facility. (ECF No. 20 (“Boche Decl.”) ¶¶ 9, 13, 18; ECF No. 24 (“Edin Decl.”) ¶ 6; Heinz Decl. ¶ 5 (explaining that of eleven clients initially detained at Whipple, ten were transferred out of the state within twenty-four hours); Kelley Decl. ¶ 19.) Once a person has been transferred out of Minnesota, “representation becomes substantially more difficult”—attorneys must secure local counsel to sponsor a pro hac vice application and navigate additional barriers.
This is a key part of the administration’s deliberate destruction of constitutional rights. Moving people quickly helps prevent habeas corpus motions from being filed, since they need to be filed in the jurisdiction where they’re being held. If detainees are shifted from place to place quickly enough, their counsel needs to figure out where they’re being held and hope that their challenge lands in court before their clients are moved again. And with the Fifth Circuit basically codifying the denial of due process to migrants, more and more people arrested elsewhere in the nation are being sent to detainment centers in Texas as quickly as possible.
All of this is intentional:
Defendants transfer people so quickly that even Defendants struggle to locate detainees. Often, Defendants do not accurately or timely input information into the Online Detainee Locator System. This prevents Minnesota-based attorneys from locating and speaking with their clients.The locator either produces no search results or instructs attorneys to call for details, referencing a phone number that ICE does not answer. Often, Defendants do not update the locator until after detainees areout of state. Attorneys frequently learn of their client’s location for the first time when the government responds to a habeas petition.
These are not the good faith efforts of a government just trying to get a grasp on the immigration situation. These are the bad faith efforts of government hoping to violate rights quickly enough that the people it doesn’t like will be remanded to the nearest war-torn nation/foreign torture prison before the judicial branch has a chance to catch up.
There’s more. There’s the phone that detainees supposedly have access to for their one phone call. It’s the same line used to receive calls for inmates, so that means lawyers calling clients back either run into a busy signal or a ringing phone that detainees aren’t allowed to answer and ICE officers certainly aren’t interested in answering.
Lawyers seeking access to their clients have been refused access. In some cases, they’ve been threatened with arrest by officers simply for showing up. Even if they happen to make it inside the Whipple Detention Center, ICE officers and detention center employees usually refuse them access to their clients.
And when people try to work within the unconstitutional limitations of this deliberately broken system, they’re mocked for even bothering to avail themselves of their rights.
When an attorney told an agent that she sent a copy of a releaseorder to the specified email address, the agent laughed and said “something to the effect of ‘yeah we really need to get someone to check that email.’”
To sum up, the government is exactly what the court thinks it is: a set of deliberate rights violations pretending it’s a legitimate government operation that’s just trying to do the best it can in these troubling times:
It appears that in planning for Operation Metro Surge, the government failed to plan for the constitutional rights of its civil detainees. The government suggests—with minimal explanation and even less evidence—that doing so would result in “chaos.” The Constitution does not permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be too challenging to honor those rights.
The administration has long lost the “presumption of regularity” that courts have utilized for years while handling lawsuits and legal challenges against the government. It no longer is considered to be acting in good faith in much of the country (Fifth Circuit excluded, for the most part). This is the “rule of law” party making it clear that it will only follow the rules and laws it likes. And it will continue to do so because courts can’t actually physically free people or force the government to respect their rights. The Trump administration is fine with losing in court and losing the hearts and minds of most of America as long as those in power keep getting to do what they want.
Border Patrol commander Greg Bovino has been sent back to the border after making himself the Nazi scum face of the Trump administration’s brutal efforts to purge this country of as many non-white people as possible.
Bovino made it clear what team he really wanted to play for before Trump was even sworn in for the second time. After Trump’s election win (but before Trump actually took office), Bovino self-authorized an expansive anti-migrant operation without bothering to check in with DHS leadership to make sure he was cleared to do this.
Trump is always capable of recognizing opportunistic thugs whose dark hearts are as corroded as his own. Bovino was swiftly elevated to an unappointed position as the nominal head of Trump’s many inland invasions of cities run by the opposing political party. Bovino embraced the role of shitheel thug, leading directly to court orders that attempted to restrain his brutal actions. Bovino appeared willing to ignore most court orders he was hit with, increasing his brutality and his public contempt of not only court orders, but the judges themselves, who he insulted during public statements to journalists.
After two murders in three weeks, the Trump administration started to realize it has lost the “hearts and minds” battle with most US citizens and residents. While ICE operations continue to be indistinguishable from kidnapping and the DHS is still ambushing migrants attempting to follow the terms of their supervised release agreements, Bovino has become the now-unacceptable personification of the administration’s bigoted war on migrants.
Bovino has been sent back down to the minors, so to speak. He’s been removed from high-profile surges in Chicago and Minneapolis and remanded to his former patrol area, which is much, much closer to the US border where there’s nearly no immigration activity happening thanks to the ongoing war on migrants.
Insubordination is fine as long as it doesn’t create friction Trump may have to eventually deal with. Bovino, however, is just as incapable of picking his battles as the president himself. Too many cocks spoil the broth, as the saying (almost) goes.
Bovino wanted to conduct large-scale immigration sweeps during an operation in Chicago in September, but the acting director of Immigration and Customs Enforcement, Todd Lyons,told him the focus was to conduct “targeted operations,” arresting only of people known to federal agents ahead of time for their violations of immigration law or other laws, according to the correspondence.
“Mr. Lyons seemed intent that CBP conduct targeted operations for at least two weeks before transitioning to full scale immigration enforcement,” Bovino wrote in an email to Department of Homeland Security leaders in Washington, referring to Customs and Border Protection, which oversees Border Patrol agents. “I declined his suggestion. We ended the conversation shortly thereafter.”
Keep in mind that Bovino is a Border Patrol commander who was working nowhere near the border. Also, keep in mind that ICE is the lead agency in any immigration enforcement efforts because… well, it’s in the name: Immigration and Customs Enforcement. This is Bovino not only giving the finger to the chain of command, but also insisting his agency (along with the CBP) take the lead in Midwestern apprehensions, despite neither agency having much in the terms of training for inland operations.
The email also revealed a rather bizarre chain of command, with Bovino saying he reported to Noem’s aide, Corey Lewandowski, and appearing to defy Lyons’ authority. “Mr. Lyons said he was in charge, and I corrected him saying I report to Corey Lewandowski,” Bovino reportedly said of the unpaid special government employee.
This email makes one thing perfectly clear: Bovino appeared to believe he answered to no one. And he would only “report” to people he felt wouldn’t push back against his confrontational, rights-violating efforts. This probably would have never been a problem, but Bovino consistently crossed lines that even Trump’s high-level sycophantic bigots were hesitant to cross.
And now he’s the one who is experiencing the “find out” part that usually follows the “fucking around.” He’s been sidelined, perhaps permanently. Acting ICE director Todd Lyons is the new face of Trump’s inland invasions. Kristi Noem herself seems to be on the list of potential cuts, should the administration continue its on-again, off-again pivot to a less outwardly racist agenda when it comes to immigration enforcement.
But I’m not here to damn with faint praise or even damn with faint damnation. I hope Bovino’s last years as a Border Patrol commander are as terrible as his haircut. I hope Todd Lyons veers so far to the middle that Trump shitcans him. I hope Noem is on the path to private sector employment, tainted with the scarlet “T” that means any future version of MAGA won’t even bother to check in with her now that the only people she can make miserable are her own children. Adios, Bovino. Sleep badly.
