Administration lawyers say First Amendment protections “may not apply” to citizens who observe federal agents. Civil liberties groups disagree.
Legal experts are divided on the definition of domestic terrorism after DHS Secretary Kristi Noem labeled a woman shot by ICE agents in Minneapolis a “domestic terrorist” for stopping to observe an immigration enforcement action. Former federal prosecutor Joyce Vance analyzed the legal questions in her newsletter, noting that the administration’s position represents “a new law enforcement strategy” that could criminalize “doing nothing more than exercising their First Amendment rights.”
The administration disagrees.
What The Policy Says
Under NSPM-7, the September 2025 presidential memo on “Countering Domestic Terrorism and Organized Political Violence,” the FBI’s Joint Terrorism Task Forces are directed to investigate Americans who exhibit “anti-Americanism,” “hostility towards those who hold traditional American views,” or “extremism on migration.” Legal scholars note the memo does not define these terms. Administration lawyers say the flexibility is intentional.
“The definition of domestic terrorism has always evolved with the threat landscape,” a DOJ official explained, speaking on condition of anonymity. “What constitutes a threat is ultimately a determination made by law enforcement in the moment.”
The Legal Questions
Constitutional law experts point to established First Amendment protections for observing police activity in public spaces. The administration’s lawyers counter that immigration enforcement presents “unique operational security concerns” that may override traditional constitutional considerations.
“The Constitution is not a suicide pact,” one senior DOJ attorney noted. “The Founders could not have anticipated organized interference with federal immigration operations.”
When asked whether standing on a public sidewalk constitutes “organized interference,” the official said determinations are made “on a case-by-case basis” and declined to elaborate.
The January 6 Comparison
CNN’s Jake Tapper pressed Secretary Noem on an apparent inconsistency: the administration pardoned January 6 defendants who attacked law enforcement officers while labeling a bystander who observed ICE agents a terrorist. Noem declined to address the comparison directly, instead emphasizing that “the President is enforcing all the laws equally.”
Legal analysts note the two situations involve different federal agencies. “You’re comparing apples and oranges,” a White House official explained. “January 6 involved the Capitol Police. This involves ICE. Completely different statutory frameworks.”
When pressed on whether attacking police is more or less serious than watching them, the official said the question was “not constructive” and ended the call.
Oversight Restrictions
Separately, Noem signed a new policy requiring seven days’ advance notice before members of Congress can visit ICE detention facilities, citing “safety concerns.” A federal judge ruled in December that such restrictions violate appropriations law. Noem wrote that she “disagrees with this decision.”
Representative Dan Goldman called the policy “about cover-ups, not safety.” The administration says congressional oversight remains robust. “Members of Congress are welcome to visit,” a DHS spokesperson clarified. “They simply need to provide a week’s notice, submit a detailed itinerary, and receive approval from facility leadership. That’s transparency.”
Legal experts are divided on whether the policy will survive court challenge. The administration says it is confident in its legal position. Similar confidence preceded other recent policy reversals.
Developing.
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