A federal judge held Friday that the Justice Department (DOJ) and Department of Homeland Security (DHS) likely violated the First Amendment when they coerced Apple and Facebook to take down and ban platforms used to share information on Immigration and Customs Enforcement (ICE) operations.
In a lawsuit filed against former Attorney General Pam Bondi and former Secretary of Homeland Security Kristi Noem in February, the Foundation for Individual Rights and Expression (FIRE) accused both officials of “repeatedly threaten[ing] to prosecute individuals and entities for disseminating information…about ICE operations” in violation of the right to freedom of expression. Although both women have since been ousted, the lawsuit has continued against their replacements.
The complaint detailed two plaintiffs whose platforms were taken down by Apple and Facebook following outreach by the DOJ last fall: Kassandra Rosado, the creator of a popular Facebook group called “ICE Sightings – Chicagoland,” and Kreisau Group, LLC, the creator of the app “Eyes Up.” Both platforms were used to share information on immigration enforcement activity, including videos of immigration operations, all of which is protected under the First Amendment.
The takedown of these two platforms coincided with the removal of a similar app, called ICEBlock, which made headlines last July after Noem threatened to prosecute CNN for reporting on the app. Bondi also threatened prosecution when she told Fox News that the creator of ICEblock “better watch out.”
By early October, apps like ICEBlock, including Eyes Up, were removed from the Apple App Store. And shortly after, “ICE Sightings – Chicagoland” was removed from Facebook.
While the government is prohibited from restricting speech, private companies may enforce speech and content restrictions through their own guidelines and policies. And although Apple and Facebook claim to have removed the two platforms for guideline violations, neither company had mentioned the violations or signaled any danger of shutting them down, according to the complaint. That is, until the federal government got involved.
Following the removal of the nearly 100,000-member Facebook group, Bondi took to social media to brag about the DOJ’s involvement in the decision and accused the group of doxing and targeting ICE agents. She even vowed to “continue engaging tech companies to eliminate platforms where radicals can incite imminent violence against federal law enforcement.” All of this, according to FIRE, meant that Apple and Facebook “reasonably understood Bondi and Noem’s course of conduct to convey a threat of adverse government action” and prosecution if they failed to suppress Rosado’s and the Kreisau Group’s speech.
United States District Judge Jorge L. Alonso agreed, finding that Rosado’s and the Kreisau Group’s free speech “injuries are likely traceable to government-coerced enforcement.” Although Bondi and Noem’s statements “may not be direct threats to prosecute Facebook and Apple, they are intimations of a threat,” wrote Alonso. “And thinly veiled threats such as these constitute sufficient evidence on which Plaintiffs are likely to succeed on their claim,” the judge continued. As such, Alonso granted FIRE’s request for a preliminary injunction to block the DOJ and DHS from strong-arming Apple and Facebook into continuing to ban Rosado’s and the Kreisau Group’s platforms, although the details of the order have yet to be decided.
“Even though it’s not the end of the case,” Colin McDonell, a senior attorney at FIRE, told Reason, “it bodes well for the future of our legal fight to ensure that the First Amendment protects the right to discuss, record, and criticize what law enforcement does in public.”
