The Foundation for Individual Rights and Expression (FIRE) is raising concerns about what it describes as an increasingly aggressive government investigation that appears to target political movements rather than criminal conduct. Last week court documents revealed that the Trump Administration has engaged in wide-ranging surveillance of over a dozen Minnesota organizations who advocated and organized against Operation Metro Surge. These included labor unions, non-profits, and even a bike shop. This comes at a time when the Trump administration is also attacking the free speech of LGTBQ organizations and individuals.
Aaron Terr, director of public advocacy at FIRE, joined The Gaily Show to discuss the organization’s assessment of recent surveillance activities and their implications for free speech protections under the Constitution.
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The Line Between Investigation and Political Targeting
When asked about the government’s approach to investigating activities surrounding immigration enforcement protests, Terr said we need to draw a clear distinction between legitimate law enforcement and what he characterized as politically motivated surveillance.
“The government should investigate crimes, not political movements,” Terr said. “There may have been some legitimate basis to investigate specific individuals or a specific group for offenses like obstructing law enforcement. But the concern here is that the investigation appears to have expanded into this sprawling probe and surveillance of people and organizations that are doing nothing more than engaging in First Amendment protected political activity.”
Terr emphasized that sharing political beliefs or having indirect connections to activists who may have broken the law does not justify investigation. He referenced Supreme Court precedent on the matter.
“That is effectively guilt by association, which the Supreme Court has memorably called a philosophy that is alien to the traditions of a free society,” he said.
“Reasonable Suspicion” Standard at Issue
According to Terr, constitutional standards require more than vague suspicions before government authorities begin investigating or surveilling individuals.
“Before the government starts investigating or surveilling someone, they have to have at least a reasonable suspicion that this person is engaged in criminal activity. There should be some evidence that makes investigators reach that conclusion,” Terr explained.
He criticized what he described as an approach that begins with the assumption that an entire political movement constitutes criminal activity. “What the government seems to be doing is starting from the premise that there’s this vast conspiracy among basically this entire portion of the left that is opposed to the administration’s immigration agenda. And so then now everyone that’s part of that movement becomes a criminal suspect.”
Terr offered a hypothetical example of legitimate versus illegitimate investigation grounds. If authorities had evidence that an organization was funding activists to purchase equipment specifically for obstructing immigration enforcement operations, that would constitute probable cause. However, investigating an organization simply because some members participated in protests where violence occurred lacks proper justification.
“To just say, well, this is an organization and some of its members were involved in this protest, and then at this protest, some protestors got violent and therefore we’re going to investigate the organization and inquire into their financial records. I think that’s what’s unjustified,” he said.
Jawboning: Government Pressure on Private Censorship
Terr highlighted another government practice known as “jawboning,” that multiple Presidential administrations have engaged in.
“Jawboning is when the government puts pressure on a private actor to censor other speech. So instead of doing the censorship directly, they kind of get this intermediary private actor to do it,” Terr said. “The classic example from modern times is when the government leans on a social media platform to remove posts or block users because it doesn’t like their speech.”
Terr noted that while this practice was observed during the Biden administration regarding COVID and election integrity discourse, the current administration has continued the tradition while targeting different speakers and subjects. One area of focus has been immigration enforcement criticism.
Individuals who criticize ICE online, discuss observations of ICE officers in public spaces, or identify ICE officers—all activities protected absent additional factors—have reportedly faced pressure campaigns. The administration has allegedly pressured platforms like Facebook to remove groups organized to monitor ICE activity and document potential abuses.
Historical Parallels to COINTELPRO
Terr acknowledged historical parallels to the FBI’s COINTELPRO program from the 1950s and 1960s, though he stopped short of declaring the situations identical.
“COINTELPRO was a very aggressive counterintelligence program by J. Edgar Hoover’s FBI that involved not just surveillance of political opposition, but these really intrusive tactics, infiltrating groups and trying to disrupt them from within in order to basically collapse these political movements,” Terr said.
While noting the government has not yet reached that level of intervention, he cautioned that COINTELPRO serves as an important historical warning.
“I do think that COINTELPRO is a useful reference as a warning about where this all can lead,” Terr said. “Even if it’s not quite there yet. We’ve already seen plenty of actions that I would confidently say have violated the First Amendment and are an unacceptable intrusion into people’s privacy and ability to freely associate with others in pursuit of political ends.”
Bipartisan Defense of Free Speech Principles
Terr urged citizens across the political spectrum to oppose these developments, emphasizing that free speech protections serve everyone regardless of their position on current issues.
“Even if maybe you’re conservative or you’re not sympathetic to these left-wing activists who are out there opposing the administration’s immigration agenda,” he said. “It’s really important still to stand against this stuff on principle.”
He observed the danger of letting this go will establish precedent — and that future administrations will use it.
“If we let these principles of free speech and free association erode, that new precedent won’t stay confined to the current administration. It will set a precedent that can be used by a future administration that may not share your political views. What goes around comes around unfortunately, which is why I think everyone should stand against this.”
Courts Generally Holding the Line
On the question of judicial responses to these challenges, Terr expressed cautious optimism about the court system’s role as a check on executive overreach.
“I think they largely are holding the line. Courts have generally been good about recognizing the First Amendment as a fundamental principle in this country and decades of very strong First Amendment precedent and applying it faithfully,” he said.
However, Terr acknowledged that exceptions exist and warned about the timing problem inherent in litigation.
“One thing that is a downside of waiting for the courts to rule is that it can take a while. A lot of damage can be done in the meantime. The government’s actions can still have a pretty serious chilling effect, especially what we see in this investigation where they’re infiltrating political meetings and surveilling people, taking down license plates. All those sorts of actions can deter people from exercising their First Amendment rights before a judge even has the chance to rule them unlawful.”
Current Litigation Efforts
FIRE is actively litigating several cases involving the administration. This includes a lawsuit filed by the president against Iowa pollster Anne Seltzer over a poll that ultimately incorrectly predicted presidential election results in Iowa in 2024. The administration is claiming consumer fraud, which Terr characterized as a strategic lawsuit against public participation, commonly called a Strategic Lawsuit Against Public Participation (SLAPP) suit.
“Seltzer released a poll on the eve of the last presidential election that predicted that Kamala Harris was going to win Iowa by a few points. And then Trump ended up winning by a substantial margin. And Trump is suing and is claiming that this is consumer fraud, but of course it’s squarely protected by the First Amendment,” Terr said. “Releasing a poll, even if it ends up being wrong, is within the First Amendment’s protection. It would be like suing the weatherman because he said it wasn’t going to rain and then you got wet.”
Practical Guidance for Protesters
For individuals planning to attend protests or engage in constitutional observation, Terr offered practical advice about understanding legal boundaries.
“You can’t engage in violence, you can’t destroy federal property, you can’t physically obstruct law enforcement,” he said. “Although an important nuance there is that you do have the right to film and observe law enforcement.”
Terr noted that the administration has allegedly expanded definitions of obstruction and doxing to include filming public officials performing their duties in public spaces, a move he characterized as contrary to established First Amendment protections.
He also recommended tactical caution even when facing potentially unlawful orders.
“Even if you’re being given an unlawful law order by a police officer, it may be wise in the moment to comply because if you want to avoid arrest or being assaulted or anything like that. But you want to try to remember everything that happened, document everything that happened, and then you can reach out to an organization like FIRE or the ACLU or another civil liberties organization if you think that your rights have been violated.”
How to Get Involved
Those interested in supporting FIRE’s work can visit fire.org, where the organization publishes information about ongoing cases and advocacy efforts. The group maintains a presence on major social media platforms including X, Facebook, and LinkedIn.
