How Homeland Security’s subpoenas and databases of protesters threaten the ‘uninhibited, robust, and wide-open’ free speech protected by Supreme Court precedent

The U.S. Department of Homeland Security is reportedly issuing administrative subpoenas to identify anonymous social media accounts that criticize U.S. Immigration and Customs Enforcement. Google, Meta and Reddit have complied with at least some of those requests, according to The New York Times^[1].

These subpoenas appear alongside other recent steps by the Trump administration aimed at clamping down on its critics.

In Minneapolis and Chicago, ICE agents told protesters their faces were being recorded and identified^[2] using facial recognition technology. Tom Homan, the White House border czar, has also spoken publicly about creating a database^[3] of people arrested during protests against immigration enforcement^[4] operations.

One way to understand these government moves is by focusing on law enforcement and compliance. Some people may wonder about what legal authority^[5] DHS is using to demand identities and compile lists, how many accounts are involved, and whether prosecutions will follow. Those questions matter.

But they are not the most important ones.

To me, a professor of public service^[6] and vice chair of the National Communication Association’s Communication and Law Division^[7], the more revealing question is why the government wants the names of critics in the first place, and what that choice signals about how dissent is being understood.

Legality is wrong measure

The DHS subpoenas that target social media accounts may be perfectly legal.

Administrative subpoenas are authorized by statute^[9] and do not require a judge’s approval before issuance. The government’s use of facial recognition technology^[10] has survived constitutional challenge in certain investigative contexts. A president’s executive memoranda^[11] routinely set enforcement priorities.

But constitutionality does not turn on whether a tool exists. It turns on how that tool is used.

Power can be lawful in the abstract and antidemocratic in its application. The fundamental question in a democracy isn’t whether the government possesses investigative authority. Instead, the question to ask is what happens when that authority begins to focus on critics of a particular policy.

National Security Presidential Memorandum-7^[12], issued in September 2025, makes the stakes even more stark. It directs agencies to prioritize efforts to counter what it calls “domestic terrorism” and organized political violence. It emphasizes threat assessment and intelligence sharing across departments. It frames certain forms of political conflict in security terms.

When protest and online criticism are characterized using a national security vocabulary, they begin to look less like disagreement and more like destabilization. And once dissent is understood as a potential threat, the gathering of names and data can feel ordinary rather than exceptional.

Same rules for everyone

The First Amendment draws its strongest protections around speech that challenges the state^[13]. Criticism of immigration enforcement concerns federal authority, borders and human rights. It is core political speech.

Viewpoint discrimination^[14] is among the borders the Supreme Court has guarded most carefully. A viewpoint-neutral law is one that applies to everyone, regardless of opinion. Racists have the same right to speech as do Catholic nuns.

Government may regulate^[15] conduct, and it may punish true threats and incitement. It may even enforce neutral laws that incidentally restrict speech^[16].

What government may not do is single out one side of a political debate because officials disapprove of its perspective^[17].

If opposition to immigration enforcement triggers subpoenas by the government to businesses to provide the identity of dissenters, that is a problem for the Constitution. The government would need to demonstrate a compelling and viewpoint-neutral justification^[18] for the requests. Broad appeals to public safety are rarely sufficient when the speech at issue lies at the center of public debate.

Anonymous speech makes the stakes clearer

In the 1958 case NAACP v. Alabama^[19], the Supreme Court refused to allow the state to compel disclosure of civil rights membership lists because exposure invited retaliation. In McIntyre v. Ohio Elections Commission^[20], in 1995, the court protected anonymous pamphleteering.

The reasoning in both cases was grounded in experience rather than theory. People speak differently when they believe their names may be recorded and stored by the state.

The risk in the present moment to the kind of dissent democracy needs and the Constitution protects may not lie in mass arrests. It may lie in narrowing – a narrowing of who feels safe criticizing federal policy. A narrowing of how sharply people speak. A narrowing of what feels worth the risk.

The First Amendment guards the right to express unpopular views^[21]. Chilling speech does not require prosecution. It requires uncertainty and asymmetry – a power imbalance. A person who believes online criticism could land them in a federal database may decide silence is the rational choice.

Supporters of the subpoenas will point to genuine safety concerns. Sharing agents’ locations can create real danger. True threats and incitement fall outside constitutional protection. Under the Supreme Court’s Brandenburg standard^[22], advocacy loses protection when it is directed at and likely to produce imminent lawless action.

The Constitution leaves room to address such genuine danger. The harder question is what happens when tools designed for protecting against tangible harm migrate into ordinary political conflict.

American history offers reminders of how this unfolds. During the Red Scare^[23], loyalty investigations reached into universities and civic organizations. After the Sept. 11 terrorist attacks, surveillance authorities expanded under the Patriot Act^[24]. Early provisions allowed the government to seek library borrowing records. Even limited use^[25] or constraints on how government could apply its powers for obtaining information may have chilled inquiry. The harm did not depend on mass prosecutions. It depended on normalization.

Measuring what is lost

It is easy to identify the harms that speech can cause. Hate speech can silence^[26] its targets. Dishonest rhetoric from public officials can erode trust^[27] in institutions. Marketing campaigns can deceive elderly citizens^[28] into surrendering their savings. We can see those injuries. We can name their harm. We can point to the damage.

The benefits of free speech are harder to make tangible.

It is difficult to measure what is lost when an opinion is never voiced. It is impossible to catalog the arguments that never quite form because a speaker calculates the risk and decides silence is safer. There is no headline announcing that a citizen chose not to post, not to protest, not to dissent.

Yet the Supreme Court has long understood that the value of free speech lies precisely in that unseen space.

In New York Times v. Sullivan^[29] in 1964, the court wrote that “the theory of our Constitution is that debate on public issues should be uninhibited, robust, and wide-open.” That theory assumes something demanding. It assumes that criticism of government will be sharp, uncomfortable and, at times, unfair. It assumes that the cure for bad speech is more speech, not surveillance.

When the government begins collecting the names of its critics, even through tools that are lawful in isolation, the question is not simply whether a statute permits it. The question is whether the conditions for uninhibited and robust debate are quietly narrowing.

Free speech rarely disappears in a dramatic moment. It erodes at the margins. It shrinks in the spaces where people decide the risk feels too high.

And by the time someone tries to measure what has been lost, the silence may already feel normal.

References

1. ^{^} The New York Times (www.nytimes.com)
2. ^{^} faces were being recorded and identified (www.nbcnews.com)
3. ^{^} creating a database (www.foxnews.com)
4. ^{^} during protests against immigration enforcement (www.lawfaremedia.org)
5. ^{^} legal authority (www.cato.org)
6. ^{^} professor of public service (www.boisestate.edu)
7. ^{^} National Communication Association’s Communication and Law Division (www.natcom.org)
8. ^{^} Nicolas Economou/NurPhoto via Getty Images (www.gettyimages.com)
9. ^{^} Administrative subpoenas are authorized by statute (www.congress.gov)
10. ^{^} facial recognition technology (www.pennstatelawreview.org)
11. ^{^} executive memoranda (www.naacpldf.org)
12. ^{^} National Security Presidential Memorandum-7 (www.whitehouse.gov)
13. ^{^} strongest protections around speech that challenges the state (theconversation.com)
14. ^{^} Viewpoint discrimination (firstamendment.mtsu.edu)
15. ^{^} Government may regulate (www.congress.gov)
16. ^{^} neutral laws that incidentally restrict speech (www.law.cornell.edu)
17. ^{^} officials disapprove of its perspective (scholarship.law.nd.edu)
18. ^{^} compelling and viewpoint-neutral justification (firstamendment.mtsu.edu)
19. ^{^} NAACP v. Alabama (supreme.justia.com)
20. ^{^} McIntyre v. Ohio Elections Commission (supreme.justia.com)
21. ^{^} right to express unpopular views (www.uscourts.gov)
22. ^{^} Brandenburg standard (constitutioncenter.org)
23. ^{^} Red Scare (millercenter.org)
24. ^{^} surveillance authorities expanded under the Patriot Act (www.acslaw.org)
25. ^{^} limited use (www.lawinsider.com)
26. ^{^} Hate speech can silence (plato.stanford.edu)
27. ^{^} Dishonest rhetoric from public officials can erode trust (www.brookings.edu)
28. ^{^} Marketing campaigns can deceive elderly citizens (www.ncoa.org)
29. ^{^} New York Times v. Sullivan (supreme.justia.com)