People whistle and film as federal agents block an alley near 35th Street and Chicago Avenue while they break a car window to detain a man and his young daughter Thursday, Jan. 22, 2026. (Photo by Nicole Neri/Minnesota Reformer)

Less than an hour after the Saturday morning killing of Alex Pretti by federal agents in south Minneapolis, conservative influencer Cam Higby took to social media with a sensational claim: Higby had “infiltrated” the group chats fueling local resistance to Operation Metro Surge.

On Monday, FBI director Kash Patel said he had “opened an investigation” into the chats. Many are said to be hosted on Signal, the encrypted messaging app.

“You cannot create a scenario that illegally entraps and puts law enforcement in harm’s way,” Patel said in a podcast interview with Benny Johnson, another conservative influencer. Johnson’s title for the episode’s YouTube stream, “Kash Patel Announces FBI Crack-Down of Left-Wing Minnesota Terrorist Network LIVE: ‘Tim Walz Next…’,” left little to the imagination.

In response to emailed questions about the nature of its investigation, the FBI declined to comment. 

First Amendment lawyers and national security experts expressed deep skepticism that any charges stemming from it will stick, however. 

“As a general proposition, reporting on things you are observing and sharing those observations is absolutely legal,” Jane Kirtley, professor of media ethics and law at the University of Minnesota Law School, said in an interview.

A guide that Higby described as “the watered down opsec version” of a “TRAINING MANUAL for domestic terrorist patrols chasing ICE agents in Minneapolis” instructs observers to draw attention to suspected ICE activity using whistles and car horns — but specifically warns against impeding officers.

Kirtley said Patel’s statements to date have been too vague to support firm conclusions about what the FBI will actually investigate or what charges, if any, the United States Department of Justice would bring as a result. The sorts of loaded terms that influencers like Higby and President Trump himself have used to describe organizers’ activities — such as “conspiracy” or “insurrection” — are formal legal concepts that require certain standards to be met, she added.

Jason Marisam, a constitutional law professor at Mitchell Hamline School of Law, said any prosecution would likely need to pass a two-part test established in a nearly 60-year-old U.S. Supreme Court ruling, Brandenburg v. Ohio.

Brandenburg prohibits speech only if it is “directed to inciting or producing imminent lawless action,” such as violence against law enforcement officers, and “is likely to incite or produce such action,” according to a summary by Cornell Law School’s Legal Information Institute. 

Brandenburg is “a very high bar,” Marisam said. Speech that only indirectly led to “lawless action,” such as coordinating a protest that later turned violent, would likely not meet it, he added.

Marisam said Brandenburg, incidentally, is the same standard that former special counsel Jack Smith would have needed to meet had his January 6th prosecution against President Trump gone to trial, Marisam added. That case was mooted after Trump won a second term and subsequently oversaw a campaign of professional retribution against the career prosecutors on Smith’s team. 

Marisam said narrowing or overturning Brandenburg has not yet been a priority for conservatives in the judiciary, despite self-evident benefits for Trump’s efforts to quell dissent and consolidate power. But he acknowledged that the “politics of free speech” can change depending on who’s in charge in Washington.

For instance, Trump supporters castigated what they perceived to be limits on free speech during the Biden years, but have remained silent in the face of a student’s deportation for writing an op-ed. 

Still, Patel’s apparent interest in Twin Cities observers’ encrypted chats is likely less the opening move of a well-thought-out legal strategy than an effort to discourage legally permissible activity, Marisam said.

“It seems to me that (Patel’s) announcement is meant to chill speech ahead of time,” he said.

In a blog post published Tuesday, Patrick Eddington, a senior fellow with the libertarian Cato Institute, said federal prosecutors would likewise struggle to make hay out of Twin Cities observers’ use of the encrypted messaging apps themselves. 

Trump officials and right-wing pundits have pointed to Signal’s popularity within the observer networks as evidence that participants want to evade legal accountability for their actions. Signal uses end-to-end encryption, meaning messages sent on properly secured devices kept in their owners’ possession are effectively impossible for third parties to see. Signal itself can’t access messages or calls sent over the app, the company says, though messages on a user’s device can be read if it is hacked or stolen. (Or, if the wrong person is added to a Signal chat, as when senior national security figures in the Trump administration — including Secretary of Defense Pete Hegseth — sent information about military operations to the editor of The Atlantic magazine after he’d been accidentally included.) 

Eddington, who works on homeland security and civil liberties issues for Cato, said the Ninth Circuit Court of Appeals’ 1999 ruling in Bernstein v. United States Department of Justice established ordinary citizens’ rights to use encrypted channels for communication they wish to keep private. Government efforts to curtail encryption could impede individuals’ rights under the Fourth Amendment to the U.S. Constitution, which prohibits “unreasonable search and seizure.”

Eddington cited a much earlier precedent that may well have informed the Constitution’s privacy protections, though its contemporary legal relevance is unclear. Thomas Jefferson, James Madison and other members of America’s founding generation used “codes and ciphers” to communicate before, during and after the Revolutionary War, Eddington wrote. 

“The use of encryption to keep government authorities from getting access to our private communications is literally as American as apple pie,” he wrote.