The Wisconsin Assembly passed a bill to protect against lawsuits intended to discourage news coverage and quiet speech, as well as measures requiring schools to adopt policies on appropriate communications between staff and students and establishing a definition of antisemitism during a Tuesday floor session.

Assembly lawmakers plan to meet again on Wednesday and Thursday to vote on legislation with the intention of wrapping their work up this legislative session by the end of the week. Lawmakers did not complete votes on every bill they had scheduled before recessing for the State of the State address in the evening. 

Anti-SLAPP legislation passes

AB 701, to protect people from Strategic Lawsuits Against Public Participation (SLAPP), passed on a voice vote. It now goes to the Senate for consideration. 

Rep. Jim Piwowarczyk (R-Hubertus), who is the co-founder of the right-wing publication Wisconsin Right Now, said the bill would strengthen protections for free speech and civic participation and ensure that citizens aren’t silenced through “abusive litigation.” 

“The bill creates a clear, efficient process for courts to quickly dismiss lawsuits that target protected speech or participation in government proceedings. It requires a prompt hearing and stays constant discovery while the motion is pending. It also allows prevailing parties to recover attorney fees,” Piwowarczyk said. “These protections help prevent the chilling effect prolonged and expensive litigation can have on free expression.”

The bill is based on model legislation developed by the nonprofit Uniform Law Commission. 

“It’s a legal tactic … designed to punish someone through stressful, time consuming and expensive litigation,” Rep. Andrew Hysell (D-Sun Prairie) said about SLAPP legislation on the floor, adding that these types of lawsuits target people “simply because they choose to exercise their First Amendment rights to speak.” 

“It’s overdue that an anti-SLAPP statute be added to Wisconsin laws. We need to protect our citizens’ First Amendment rights and protect those rights from legal retribution,” Hysell said. 

School communication policies

Lawmakers concurred in SB 673 in a 92-7 vote. It would require public school districts and private schools to adopt policies related to appropriate communications between staff and students. The bill will now go to Gov. Tony Evers for consideration. 

Schools would need to adopt new policies by Sept. 1, 2026 under the bill. 

The bill is one of several that lawmakers introduced in reaction to a November report from the CapTimes that found over 200 investigations into teacher licenses due to allegations of sexual misconduct or grooming from 2018 to 2023.

Rep. Amanda Nedweski (R-Pleasant Prairie) said the bill would protect staff and students. The bill includes requirements that the policies include standards for appropriate content and appropriate methods of communication as well as training in identifying, preventing and reporting grooming and professional boundary violations.

The bill, Nedweski said, will protect students from “potentially predatory behavior with clear proactive protections, while also protecting well-intentioned employees who work every day with integrity and professionalism — protecting them from finding themselves in compromising situations where a misunderstanding or a false allegation could cause serious reputational harm.” 

The bill also requires that policies include consequences for employees or volunteers who violate the rules.

Private schools were included through an amendment to the bill. 

“As a parent of two public school kids, we should be doing whatever we can to make sure that our kids are safe in schools,” Rep. Mike Bare (D-Verona). said. “One of the most troubling things we heard in the series of legislative hearings on this topic is that kids who were in private schools are less safe than those who are in public schools. That’s because educators in private schools are not required to be licensed.” 

Antisemitism definition

AB 446 passed 66-33 with 11 Democrats joining Republicans in favor. The controversial bill would codify the definition for antisemitism adopted by the International Holocaust Remembrance Alliance in 2016. It states that antisemitism is “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

The bill would require local and state governmental agencies to consider the IHRA definition and its examples when investigating allegations of racial, religious or ethnic discrimination.

Rep. Supreme Moore Omokunde (D-Milwaukee) said he was concerned that the bill would infringe on people’s First Amendment rights. 

“Many Jewish and Muslim work groups have come together to use this definition to establish a framework to help understand what antisemitism is,” Moore Omokunde said. But, he added, the intention was not for the definition to be codified into law.

Moore Omokunde said he is worried that the bill could be used to punish people for speaking out against  the actions of the Israeli government.

Rep. Lisa Subeck (D-Madison), who is Jewish, said she was frustrated with the opposition to the bill. 

“Antisemitism is real. We hear again and again, particularly since October 7th, that when acts of antisemitism occur, they’re not really antisemitic,” Subeck said. “I don’t spend a lot of time when somebody tells me about an act of homophobia, I don’t debate whether it was really homophobic. When somebody who has been a victim of bias, discrimination and worse, tells me what happens to them, I believe it.”

Subeck said the bill is the Legislature’s opportunity to take a “firm stand” against antisemitism.

The bill is now in the Senate.

The Assembly also passed a bill that would prohibit people from serving as a state Supreme Court justice or as a judge of a court of record after the age of 75; AB 640 passed on a 54-45 vote along party lines. 

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The Wisconsin Assembly will vote Tuesday on a bill that would define antisemitism and that has prompted deep divisions — including among Jewish leaders, who are found among both the supporters and opponents of the measure.

Proponents of the legislation contend it is needed to take a stand against a surge in antisemitic actions, on college campuses as well as in other contexts.

Critics, however, argue that the bill would criminalize political speech critical of Israeli actions, most recently in the ongoing conflict in Gaza — which has also divided the Jewish community.

The bill would codify in Wisconsin law a definition of antisemitism that was adopted by the International Holocaust Remembrance Alliance in 2016.

The definition states: “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

The IHRA has also published a list of bullet points as “contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere…”

The legislation, AB 446, requires local and state governmental agencies to consider the IHRA definition “including its examples” when investigating allegations of racial, religious or ethnic discrimination. Its Senate companion is SB 445.

The definition would also be used to determine “enhanced criminal penalties for criminal offenses” if a defendant is found to target a victim “because of the victim’s or group of victims’ actual or perceived race, religion, color, or national origin.”

The bill “doesn’t create any new criminal penalty or compel any legal proceeding to be initiated,” testified its Assembly author, Rep. Ron Tusler (R-Harrison), at public hearings on the measure. “Rather, it provides a standard to be used in evaluating whether an alleged criminal act as provided for under current law was motivated by antisemitism.”

Both the IHRA’s examples and the bill’s criminal penalty language have become key points of criticism for the legislation’s opponents, however. Rabbis have testified both in favor of the legislation and against it.

“Nothing about this bill would prevent me, or anyone else, from rebuking Israel for its actions when conscience demands it,” said Rabbi Noah Chertkoff, who serves a congregation in the Milwaukee suburb of Fox Point, testifying in support of the bill at its Jan. 28 state Senate hearing.

At the same hearing, Rabbi Dena Feingold, the retired leader of a Kenosha congregation, called the IHRA definition “highly controversial and problematic in a number of respects” in her opposition testimony.

“It is far from universally accepted within the Jewish community, and many scholars and leaders have outright rejected it,” Feingold said.

The number of examples offered by the IHRA treating “anti-Israel rhetoric as antisemitism gives the impression that anti-Israel critics and protesters are by far the most likely sources of antisemitism in America,” Feingold added. “On the contrary, I believe that racists and white nationalists are the largest sources of antisemitism in this country.”

The legislation’s sponsor list is heavily Republican. A handful of Democrats in both chambers have signed on, but some have subsequently withdrawn their support.

At both the Assembly public hearing in October and the state Senate hearing in January, witnesses supporting the bill described increased antisemitic violence and actions, particularly since the massacre of more than 1,200 people in an attack on a music festival in Israel by the Palestinian political and military group Hamas on Oct. 7, 2023.

Ari Friedman, executive director of the Jewish Security Network, said at the January hearing that an audit by the Milwaukee Jewish Federation’s Jewish Community Relations Council found a 192% increase in antisemitic incidents in Wisconsin and similarly a national escalation in anti-Jewish hate crimes, according to the FBI.

The legislation “is not about suppressing free speech or political disagreement. Those rights are fundamental,” Friedman said. “But when expression crosses into harassment, intimidation and threats of violence directed at people because they are Jewish, it ceases to be abstract debate and becomes a public safety issue.”

The IHRA’s definition of antisemitism “explicitly does not criminalize speech,” testified the Jewish Community Relations Council’s chair, Jill Plavnick. “It provides clarity; helping schools, workplaces and courts recognize when hate crosses the line into discrimination.”

But Hannah Rosenthal, a former CEO of the Milwaukee Jewish Federation who served as a special envoy on global antisemitism during the Obama administration and also led the national Jewish Council for Public Affairs, testified in opposition to the bill in January, describing it as part of a Trump administration push to target critics of the administration’s Middle East policy.

She said the White House appears intent on using the IHRA definition of antisemitism “to identify individuals or organizations that disagree with the administration’s goal to fight any pro-Palestinian efforts as part of a Hamas network, and therefore antisemitic or even a terrorist.”

The IHRA definition “does include some very important examples of antisemitism,” Rosenthal testified. “But it is silent on conspiracy theories, the great replacement theory, white nationalism, Christian nationalism, deicide, blaming Jews for funding opposition efforts, and the like.”

(The “great replacement theory” is a conspiracy theory that “Jews and some Western elites are conspiring to replace white Americans and Europeans with people of non-European descent,” explained Rodney Coates, a Miami University professor, in a 2024 article for The Conversation.)

Advocates have pointed to language stating that the bill may not be construed to infringe on constitutional rights under the First Amendment or to conflict with federal or state antidiscrimination laws.

“It affirms that nothing in this bill may be used to infringe on free expression,” Chertkoff testified.

But Amanda Merkwae, advocacy director of the American Civil Liberties Union of Wisconsin, said that the bill incorporates the IHRA definition and its examples into Wisconsin’s antidiscrimination law — making what she called the “First Amendment savings clause” meaningless.

“Although the ACLU of Wisconsin appreciates the sentiment expressed by this provision, it cannot override the bill’s plain terms,” Merkwae said.

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The Trump administration is using a law Congress passed in the 1990s after a wave of deadly violence at abortion clinics to prosecute demonstrators and reporters who were at a immigration-related church protest in Minneapolis last month. 

Independent journalists Don Lemon and Georgia Fort, along with several activists, are accused of violating a 1994 law that made physically obstructing access to reproductive health clinics and places of worship a federal crime. Lemon pleaded not guilty Friday, while Fort is set to be arraigned next week and has denied any wrongdoing. Other plaintiffs have vowed to fight the charges — they’re also accused of conspiring against churchgoers’ right to worship — and maintained they were exercising their First Amendment rights. 

Some abortion opponents say the law should be repealed entirely, even though the statute also protects access to anti-abortion crisis pregnancy centers. Reproductive rights advocates say getting rid of the law altogether could spur more attacks on clinics and providers, which already increased in recent years. 

“It would give an even stronger signal to the zealots who would wish to shut us down to intimidate and harm our clinic folks and patients,” said Julie Burkhart, who owns clinics in Wyoming and Illinois. 

The Minnesota indictment is only the second time that the Department of Justice has brought charges under the religious provision tucked in the Freedom of Access to Clinic Entrances Act. In September, the federal government filed a civil complaint against pro-Palestinian groups and demonstrators, accusing them of violating the FACE Act after they protested outside a New Jersey synagogue in 2024.

During a news conference announcing the charges, Harmeet Dhillon, the assistant attorney general for the DOJ’s civil rights division, said the New Jersey case was the “first time in history” the FACE Act was used to “prosecute an attack civilly on a house of worship.”  

While the Trump administration has started to use the FACE Act in religion-related cases, it has also relaxed enforcement of the law against people who interfere with access to abortion clinics. 

Republican President Donald Trump pardoned 23 anti-abortion protesters convicted of violating the law within weeks of taking office in January 2025, and the DOJ released a memo that stated abortion-related cases should only be pursued in “extraordinary circumstances,” such as death, serious bodily harm or severe property damage. 

“This sent a very clear signal to anti-abortion extremists that this administration was OK and even encouraged anti-abortion violence, and we’ve seen the same people that were pardoned within Trump’s first week in office go right back out and start harassing abortion providers and their patients, whether that is putting together blockades or clinic invasions,” National Abortion Federation President and CEO Brittany Fonteno told States Newsroom. 

FACE Act followed murder of abortion provider, clinic sieges 

Tactics by the anti-abortion movement were starting to reach a fever pitch in the U.S. before the FACE Act’s passage. In 1988, hundreds of protesters were arrested in Georgia during the “Siege of Atlanta,” where abortion opponents staged routine clinic blockades over a three-month period. In 1991, thousands of anti-abortion protesters were arrested by local officials for invading abortion clinics in Kansas during the “Summer of Mercy.” 

“We were literally unable to do our jobs,” said Burkhart, who worked in Wichita that summer with Dr. George Tiller, a provider who was later killed by an anti-abortion extremist. 

In 1993, Dr. David Gunn was murdered by an anti-abortion protester outside a Florida clinic, and six months later, Tiller was shot outside his Kansas clinic. Tiller survived that attack, but he was assassinated at his church in 2009.  

Sen. Ted Kennedy and then-Rep. Chuck Schumer, both Democrats, introduced the FACE Act in Congress alongside former Republican Rep. Connie Morella, and President Bill Clinton signed the legislation the following year. 

Legal experts said the religious part of the reproductive health law was added to broaden legislative support for the bill. 

The law protects reproductive health clinics and places of worship from being physically obstructed or damaged, and makes it a federal crime to intentionally injure, intimidate or interfere with access to those places. Violators face up to a year in prison or a $10,000 fine, and up to six months in prison for nonviolent obstruction. A defendant could face 10 years if they inflicted bodily harm or life behind bars if someone is killed.  

Mary Ziegler, an abortion historian and professor at the University of California, Davis School of Law, said the measure was modeled on other civil rights laws, which typically include protections for religious institutions. She said Congress already had a Democratic majority at the time, but the religious part of the law could have been added to avoid accusations of viewpoint discrimination. 

“Even people who saw themselves as pro-life were disturbed by some of the violence,” Ziegler said. 

After the law took effect, violence against abortion clinics declined by 30%, according to the National Abortion Federation. 

The power of anti-abortion groups like Operation Rescue, known for orchestrating mass clinic blockades, waned. 

“The FACE Act was created to suppress civil disobedience at abortion centers, so it’s had a massively negative impact on the anti-abortion movement,” said Terrisa Bukovinac, the founder of Progressive Anti-Abortion Uprising. 

Bukovinac’s group along with Students for Life of America and Alliance Defending Freedom have called for the law’s demise since the U.S. Supreme Court overturned the federal right to an abortion in June 2022. 

Trump reconfigures enforcement while abortion opponents call for repeal

Violence against abortion clinics increased after the Dobbs v. Jackson Women’s Health Organization decision. From 2021 to 2022, clinics saw a 100% increase in arsons, a 25% increase in invasions and a 20% increase in death threats or threats of harm, according to the National Abortion Federation. 

The Biden administration pursued enforcement of the FACE Act by prosecuting people convicted of blocking access to abortion clinics in Michigan, Tennessee and Washington, D.C. 

Trump pardoned all of those defendants. But for some abortion opponents, the Republican administration’s narrow use of the FACE Act does not go far enough. 

“It should be repealed because it’s a draconian law,” Bukovinac said. “There are local laws that address trespass, disorderly conduct, disruptions of churches, and various other violations of statutes, but the FACE law adds the full weight of the federal government in these situations.” 

Ziegler said the law isn’t a trespassing statute, it’s about conduct and obstruction. No legal challenges against the law have held up in court before or after Dobbs, she said. 

“If you’re shooting someone in the head because they’re trying to go to a synagogue or they’re trying to go into an abortion clinic — or you’re threatening to kill them or you’re physically blocking all the entrances — that’s not speech protected by the First Amendment,” Ziegler said. 

Matthew Cavedon, a criminal justice and religious liberty expert at the libertarian CATO Institute, has written that the law may be unconstitutional. He said the federal government has typically defended the FACE Act’s constitutionality based on the Commerce Clause and the 14th Amendment.

“Pro-lifers have made the point that in order to defend the FACE Act under the 14th Amendment, you have to have some sort of federal constitutional right to have an abortion,” Cavedon said. “Back in 1994 when the act passed, the Supreme Court said that you did have that right. It doesn’t anymore. That’s been reversed. So I think that’s a very strong argument.” 

U.S. Rep. Chip Roy, a Texas Republican, introduced a bill last year that would repeal the law. The House Judiciary Committee advanced the measure in June, States Newsroom reported. 

Roy did not respond to requests for comment, but during a hearing for the bill, he said he has been criticized by Trump administration officials who wanted to use the law to defend churches. 

“That’s not what my goal is,” he said. “My goal is to alleviate the politicization in the first place.”

Renee Chelian, the founder and CEO of Northland Family Planning Centers in Michigan, testified before the committee about the importance of the FACE Act and the invasion of one of her clinics during the first Trump administration. 

“Once the law went into effect, the violent blockades immediately stopped. This all ended when President Trump took office for his first term, emboldening extremists to resume their attacks,” she said. 

In August 2020, a group of protesters blocked the entrance to Chelian’s Sterling Heights clinics, preventing patients and staff from entering the clinic. 

“Patients were stuck in their cars, including three women who were coming in for abortions following the detection of fatal fetal anomalies,” Chelian said. One of those patients was losing amniotic fluid and needed to get to her appointment for the second day of her procedure, but protesters surrounded her car and chanted at her, her mother and her husband, according to the DOJ. 

Trump’s decision to pardon seven people who invaded her clinic “left us reliving our trauma and feeling abandoned by the government that is supposed to protect us,” Chelian told lawmakers. 

Last month, the Center for Reproductive Rights sued the Trump administration after the government did not respond to Freedom of Information Act requests about “selective enforcement” of the FACE Act and Trump’s pardons of 23 anti-abortion protesters convicted under the law. 

“This is straight out of the anti-abortion movement’s playbook,” said Sara Outterson, the center’s chief federal legislative counsel. “They know they can’t ban abortion outright in a number of states, so they’ll try everything they can to restrict access to care, including allowing criminals to harass people as they try to go in to get care.” 

WASHINGTON — A federal judge issued a preliminary injunction Thursday, blocking the Department of Defense from downgrading Arizona Democratic Sen. Mark Kelly’s rank as a retired Navy captain for appearing in a video where he and other lawmakers reminded members of the military they aren’t required to follow illegal orders. 

Senior Judge Richard J. Leon of the District of Columbia District Court wrote in the 29-page ruling that Defense Secretary Pete Hegseth and others named in the lawsuit have “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.”

In his scathing opinion loaded with emphasis and exclamation points, Leon wrote, “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’ To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!” 

The senior judge ruled that Kelly is likely to succeed on the merits of his case. The preliminary injunction will block Pentagon action while the case proceeds through the courts.

 

 

Leon conceded that while active military personnel are subject to “well-established doctrine” limiting First Amendment rights, “(u)fortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military.” 

“This Court will not be the first to do so!”

Leon was nominated by former President George W. Bush.

Leon concluded the ruling with a biting passage suggesting that “Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years.” 

“If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department’s approach to these issues,” Leon wrote.

‘This case was never just about me’

Kelly said in a lengthy statement following the ruling that the federal court “made clear that Pete Hegseth violated the constitution when he tried to punish me for something I said.” 

“But this case was never just about me. This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out. That’s why I couldn’t let it stand,” Kelly said.

Kelly said the nation is at a “critical moment” to defend free speech.

“The First Amendment is a foundation of our democracy. It’s how we demand better of presidents like Donald Trump – whether they are jacking up the cost of groceries with tariffs or sending masked immigration agents to intimidate American communities.  

  “But Donald Trump and his administration don’t like accountability. They don’t like when journalists report on the consequences of their policies. They don’t like when retired veterans question them. And they don’t like when millions of everyday Americans peacefully protest. That’s why they are cracking down on our rights and trying to make examples out of anyone they can.”

The Department of Defense pointed to Hegseth’s X account as official comment on the matter.

The secretary wrote about the case: “This will be immediately appealed. Sedition is sedition, ‘Captain.’”

DOD investigation

Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander, all Democrats with backgrounds in the military or national security, posted the video on Nov. 18

President Donald Trump reacted on social media a few days later, falsely claiming the video represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

The Defense Department announced on Nov. 24 that it had opened an investigation into “serious allegations of misconduct” against Kelly. Officials wrote the senator could face “recall to active duty for court-martial proceedings or administrative measures.” 

Hegseth wrote in a social media post on Jan. 5 that he had started the process to downgrade Kelly’s retirement rank as a Navy captain and his pay. 

Hegseth wrote Kelly’s “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

Kelly filed a lawsuit against the Department of Defense and Hegseth on Jan. 12, asking a federal judge to declare the effort “unlawful and unconstitutional.”

“Pete Hegseth is coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator whose job is to hold him—and this or any administration—accountable,” Kelly wrote in a statement at the time. “His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.”

Court hearing

Leon held a hearing on Kelly’s request for a preliminary injunction on Feb. 3, where he asked the attorney representing the Department of Defense how any retired member of the military who is later elected as a member of Congress, especially one that sits on the Armed Services Committee, like Kelly does, could challenge any actions taken by the Defense Department. 

John Bailey, the Justice Department attorney, contended that Congress has determined that certain retired military members are still subject to the Uniform Code of Military Justice. 

Benjamin Mizer, one of the lawyers on Kelly’s team, told the judge the Defense Department’s actions represented a “clear First Amendment violation.” 

Grand jury non-indictment

The other Democratic lawmakers in the video aren’t subject to the military’s judicial system but rebuked the Justice Department Wednesday for seeking a grand jury indictment against them for publishing the video, where they told Americans in the military and intelligence communities they “can” and “must refuse illegal orders.”

“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”

Slotkin, a former CIA officer, posted a video on Feb. 5, saying she had informed U.S. Attorney General Pam Bondi and U.S. Attorney for the District of Columbia Jeanine Pirro that she wouldn’t be sitting for an interview. 

Slotkin said her letter to Bondi and Pirro also told them “to retain their records on this case in case I decide to sue for infringement of my constitutional rights.”

“To be honest, many lawyers told me to just be quiet, keep my head down and hopefully this will all just go away. But that’s exactly what the Trump administration and Jeanine Pirro want,” Slotkin said. “They are purposely using physical and legal intimidation to get me to shut up. But more importantly they’re using that intimidation to deter others from speaking out against their administration.

“The intimidation is the point and I’m not going to go along with that.”

House members 

Houlahan released her own video the same day saying she would not sit for an FBI interview and that the Democrats’ video “told the truth, it stated facts, it reiterated the law and it exercised speech explicitly protected by the First Amendment of the United States Constitution.” 

“Free speech is not a favor that the government can revoke,” Houlahan said. “It is a right and I will not surrender it, for myself or for anyone else.” 

Deluzio wrote in a social media post the following day that he would “not be intimidated by any harassment campaign” and does “not intend to sit down for a voluntary interview with DOJ or FBI officials sent to interfere with the important work I’m doing for my constituents.”

Goodlander wrote in a statement that the “Justice Department is targeting us for doing our jobs, and the aim here is clear: to intimidate, coerce, and silence us. It will not work. I will not bend the knee in the face of lawless threats and rank weaponization — I will keep doing my job and upholding my oath to our Constitution.”

Crow told CNN’s Pamela Brown last week that he was treating the FBI’s investigation as “an attempt to try to threaten, harass and intimidate political opponents.”

“(Trump’s) trying to make an example out of me and Mark Kelly and others because if he can make an example out of a member of Congress or a senator then why would everyday Americans stand up and protest and dissent? But he has chosen the wrong people.”

Arizona Democratic Sen. Mark Kelly outside the District of Columbia federal courthouse where his lawsuit against the Department of Defense was heard on Feb. 3, 2026. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — The federal district court judge overseeing the lawsuit Arizona Democratic Sen. Mark Kelly filed against the Department of Defense said during a Tuesday hearing he expects to issue a ruling before Feb. 11. 

Kelly has asked the judge to issue a preliminary injunction blocking the Pentagon from demoting his rank as a retired Navy captain for appearing in a video where he and other members of Congress reminded members of the military they do not need to follow illegal orders. 

Senior Judge Richard J. Leon of the District of Columbia District Court said toward the beginning of the one-hour hearing that he planned to issue his decision “as quickly as possible” and told the lawyers that he didn’t “want to get too lost in the weeds” of the case at this earlier stage. 

Instead, he asked several questions about First Amendment rights in general, what protections a lawmaker holds, and whether the Trump administration was trying to expand previous court decisions regarding the military justice system to retirees. 

Leon was nominated by former President George W. Bush.

Kelly’s lawyers see a ‘First Amendment violation’

Benjamin Mizer, one of the lawyers on Kelly’s team, said “a lot about this case is unprecedented,” and urged the judge to reject the Department of Defense’s assertion that it has the legal right to demote any retired military member if they say something critical of its actions. 

Defense Secretary Pete Hegseth’s censure letter and efforts to demote Kelly, he said, represented a “clear First Amendment violation.” 

“Secretary Hegseth demonstrated bias and that he is not a decision maker who has kept an open mind,” Mizer said. 

Mizer also said that all of the cases the Trump administration had cited in briefs to the judge addressed active duty service members, not retired members of the military. He contended that the federal district court does have jurisdiction to decide this case since it addresses constitutional claims. 

Trump administration battles back

John Bailey, the Justice Department attorney representing the Defense Department in the case, said that there is “at least a military clause to the First Amendment.”

Leon interjected to ask Bailey if it wasn’t “a bit of a stretch” to ask him to expand previous court rulings about active duty service members to cover retired members, like Kelly. 

“You’re asking me to do something the Supreme Court and D.C. Circuit haven’t done,” Leon said. 

Bailey also contended that Kelly should have exhausted administrative avenues within the Department of Defense to contest Hegeth’s move to add a censure letter to his file and begin the process of demoting his retirement rank and pay. 

Leon also questioned how any retired member of the military who is later elected as a member of Congress, especially one that sits on the Armed Services Committee, like Kelly does, could challenge any actions taken by the Defense Department. 

Bailey said that Congress has determined that certain retired military members are still subject to the Uniform Code of Military Justice. 

Later in the hearing, Bailey conceded that there are “perhaps a few unique First Amendment” aspects to the case, but said one important aspect is that Kelly hasn’t stopped speaking out against Trump administration policies he disagrees with, meaning there hasn’t been any “chill’ of his First Amendment rights. 

Leon said it may not be just Kelly who feels a chilling effect but also other military retirees who decide not to question Defense Department actions over concerns they may experience the same demotion Kelly faces. 

Leon wrapped up the hearing saying he would decide whether to grant Kelly a preliminary injunction in the “very near future … so it can be appealed.”

Kelly cites freedom of speech for military retirees

Kelly, who attended the hearing, said afterward the case is not just about his constitutional rights but the rights of “millions of retired service members.”

“There’s nothing more fundamental to our democracy than the freedom of speech and the freedom to speak out about our government, and that’s what I’m fighting for,” Kelly said. “I appreciate the judge’s quick and careful consideration in this case, given what is at stake here.”

Kelly rebuked Hegseth for trying to punish him for telling members of the military they didn’t need to follow illegal orders. 

“Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States senator,” Kelly said. “And this isn’t happening in isolation. Since taking office, this administration has repeatedly gone after First Amendment rights of many Americans. That’s not how we do things here in the United States.”

Reading Time: < 1 minute

As media outlets that regularly report on newsworthy events, we, the undersigned, vigorously condemn the recent arrests of journalists Don Lemon and Georgia Fort. 

Lemon and Fort were arrested after covering a January 18 protest at a church in Minneapolis. They were conducting the constitutionally protected activities of a working journalist: observing, recording and documenting a newsworthy event and attempting to obtain quotes from participants. 

Their arrest on charges of allegedly obstructing a place of worship, and even worse, under federal conspiracy law, alarms all of us who believe in the First Amendment and seek to do our jobs without fear of obstruction by law enforcement or retaliation by agents of the government. 

The principle of a free press animated the founding of the United States of America 250 years ago, and countless Americans have fought valiantly for it. We cannot allow colleagues to be subjected to spurious and unwarranted arrest for committing acts of journalism.

We call on federal authorities to drop all charges against Lemon and Fort and to publicly affirm their unqualified support for the work of professional journalists in this critical time.

SIGNATORIES:

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Wisconsin Watch joins media outlets in condemning arrests of journalists Don Lemon and Georgia Fort is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

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.

Demonstrators gather outside of the Henry Whipple Federal Building, shouting at federal vehicles and recording their plates Saturday, Jan. 17, 2026. (Photo by Nicole Neri/Minnesota Reformer)

A Minneapolis-based human rights group is suing the Department of Homeland Security, accusing DHS officials and agents of illegally and systematically preventing detained immigrants from meeting with their lawyers.

The proposed class action lawsuit, filed Tuesday in U.S. District Court of Minnesota, was brought on behalf of the Advocates for Human Rights and a St. Paul woman referred to by the initials “L.H.M.”

According to the complaint, L.H.M., who has lived in Minnesota since 2019 and has a pending asylum claim, was arrested Monday after a routine check-in at ICE’s Office of Intensive Supervision in Bloomington.

After L.H.M.’s family contacted her attorney, the lawyer immediately travelled to the Bishop Henry Whipple Federal Building but was unilaterally refused access to L.H.M.

L.H.M. recently underwent cranial surgery, the lawsuit states, and “has significant medical needs that may be severely adversely affected by detention conditions or involuntary transfer out of state.”

According to the claim, federal agents at the Whipple Building — and at least one ICE attorney — have repeatedly told frustrated lawyers that “no visitation between detainees and attorneys is or has ever been permitted at Whipple.”

“This is false,” the complaint continues. “Whipple has rooms labeled ‘ERO Visitation,’ where attorneys have met with clients held at Whipple for years.”

Nowadays, when lawyers attempt to arrange visits at Whipple, phone calls and emails allegedly go unanswered.

According to the suit, one lawyer was recently threatened with arrest at the Whipple Building, despite having received prior permission from agency officials. Another attorney attempting to speak to a client was “confronted by six armed security personnel, one of whom said, ‘We’re not having a debate here, turn your car around and get the hell out of here.’”

The lawsuit asserts claims under the First Amendment, the Fifth Amendment, the Administrative Procedures Act and the Immigration and Nationality Act. 

A spokesperson for Homeland Security responded: “Any allegations people detained by ICE do not have access to attorneys are false. Illegal aliens in the Whipple Federal Building have access to phones they can use to contact their families and lawyers. Additionally, ICE gives all illegal aliens arrested a court-approved list of free or low-cost attorneys. All detainees receive full due process.”

(Homeland Security has a burgeoning record of providing false information to the public, as detailed in a recent Stateline story; after the recent killing of Alex Pretti by Border Patrol, a Homeland Security spokesperson claimed Pretti “wanted to do maximum damage and massacre law enforcement” even though he never drew his gun, for which he had a permit.)

This is not the first time DHS has been sued for impeding detainees’ access to counsel. Similar suits in New York and Illinois have resulted in court orders.

DHS also has a recent history of defying court orders.

On Tuesday, U.S. District Judge Patrick Schiltz, chief judge of the Minnesota district, issued an order in a habeas petition in which he identified 96 court orders that ICE has violated since January 1 – a tally that he said is likely an undercount because it was assembled in haste.

“This list should give pause to anyone — no matter his or her political beliefs — who cares about the rule of law,” wrote Schiltz, who was appointed to the bench by George W. Bush and clerked for Antonin Scalia, the late Supreme Court justice and conservative icon.

“ICE has likely violated more court orders in January 2026 than some federal agencies have violated in their entire existence,” Schiltz wrote.

U.S. Sen. Mark Kelly, an Arizona Democrat, speaks with attendees of Kamala Harris for President campaign event in Phoenix in November 2024. (Photo by Gage Skidmore | Flickr/CC BY-SA 2.0)

WASHINGTON — The Trump administration on Thursday asked a federal judge to deny Arizona Democratic Sen. Mark Kelly’s request to halt efforts within the Defense Department to punish him for appearing in a video where he urged members of the military not to follow illegal orders.

Attorneys for the Department of Justice asserted in a 52-page brief that the administration doesn’t believe federal courts hold jurisdiction over the matter, writing “the Judiciary does not superintend military personnel decisions.”

Kelly, a retired U.S. Navy captain, “is not a private citizen and does not enjoy the First Amendment freedom of speech as if he were one when being assessed by the military in military proceedings to determine whether his conduct comports with his obligations as a retired servicemember,” the brief states. 

Kelly’s lawsuit asked a federal judge for an emergency ruling declaring the Defense Department’s attempts to demote him and reduce his military retirement pay are “unlawful and unconstitutional.”

The lawsuit alleges the Pentagon’s actions against Kelly “trample on protections the Constitution singles out as essential to legislative independence.” 

“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit states. ”Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces.”

Video rankled Pentagon

Defense Secretary Pete Hegseth announced earlier this month that he had started the process to downgrade Kelly’s retirement rank and pay, writing in a social media post that his “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer. 

The video at the center of the debate featured Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander, all Democrats with backgrounds in the military or intelligence community.

They said that Americans in those institutions “can” and “must refuse illegal orders.”

“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”

First Amendment doesn’t apply, DOJ says

Attorneys at the Justice Department, representing DOD in the case, argued in the brief they filed Thursday that no emergency relief is warranted, in part, because they believe Kelly’s First Amendment rights have not been violated. 

“Plaintiff is unlikely to succeed on his First Amendment claim because, as a retired servicemember, he has no First Amendment right to encourage other servicemembers to question the legitimacy of their military orders or to impugn their superior officers when such conduct violates his ongoing duties and obligations to the military,” the DOJ brief states. “The First Amendment is not a shield against the consequences of such violations in military personnel matters.”

Kelly’s constitutional protections as a member of the U.S. Senate under the Speech and Debate Clause of the Constitution also don’t apply in this instance, the DOJ legal team wrote. 

“A legislator’s public statements in interviews and on social media are not legislative acts protected by the Speech or Debate Clause,” DOJ wrote. 

The judge doesn’t need to issue emergency relief, the DOJ brief states, because there isn’t a separation-of-powers issue between the Executive Branch, where the Defense Department exists, and Kelly’s role as a senator in the Legislative Branch, which are considered separate but equal under the Constitution. 

Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush, has scheduled a hearing on the issue for Wednesday. 

Leon could rule from the bench during those proceedings or issue a written order anytime afterward. 

Arizona Democratic Sen. Mark Kelly speaks with reporters in the Mansfield Room of the U.S. Capitol building in Washington, D.C., on Monday, Dec. 1, 2025. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — Arizona Democratic Sen. Mark Kelly sued Defense Secretary Pete Hegseth and the department on Monday for trying to demote Kelly’s retirement rank and pay after he appeared in a video where he and other lawmakers told service members they didn’t need to follow illegal orders. 

Kelly’s suit, filed in the federal district court for the District of Columbia, says attempts by the Trump administration to punish him violate the First Amendment, the separation of powers, due process protections and the Speech and Debate clause of the Constitution.

“Pete Hegseth is coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator whose job is to hold him—and this or any administration—accountable,” Kelly wrote in a statement. “His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.”

Kelly appeared in the video alongside Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander — all of whom are former members of the military or intelligence agencies, though none of the others are still subject to the military’s legal system.

President Donald Trump was irate after seeing the video, posting on social media that he believed it represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

DOD investigation

The Defense Department announced in late November that it was looking into “serious allegations of misconduct” against Kelly, a retired Navy captain, for participating in the video. 

Kelly said during a press conference on Capitol Hill in December the Defense Department investigation into him, along with one by the FBI into all of the lawmakers in the video, marked “a dangerous moment for the United States of America when the president and his loyalists use every lever of power to silence United States senators for speaking up.”

Hegseth, who originally threatened to court-martial Kelly, said in early January the Defense Department would instead downgrade his retirement rank and pay. 

“Captain Kelly has been provided notice of the basis for this action and has thirty days to submit a response,” Hegseth wrote in a social media post. “The retirement grade determination process directed by Secretary Hegseth will be completed within forty five days.”

Kelly said at the time he would challenge Hegseth’s course of action. 

First Amendment cited

The 46-page lawsuit marks the next step in the months-long saga, with Kelly asking a federal judge to declare the effort to demote him “unlawful and unconstitutional.”

“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the lawsuit states. “That prohibition applies with particular force to legislators speaking on matters of public policy. As the Supreme Court held 60 years ago, the Constitution ‘requires that legislators be given the widest latitude to express their views on issues of policy,’ and the government may not recharacterize protected speech as supposed incitement in order to punish it.”

The lawsuit alleges that the Pentagon’s actions against Kelly “also trample on protections the Constitution singles out as essential to legislative independence.” 

“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit states. ”Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces.”

Kelly’s legal team asked the judge to grant “emergency relief” in their favor by Friday, Jan. 16.

The case was assigned to Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush.