DHS: Filming or Following ICE Agents 'Sure Sounds Like Obstruction of Justice' — Courts, Advocates Say It's Protected Speech

The Department of Homeland Security (DHS) has suggested that following or recording federal immigration agents "sure sounds like obstruction of justice," a stance that clashes with multiple federal appellate rulings recognizing such activity as core First Amendment speech when it does not physically interfere with officers.

What DHS Said

When asked by Reason whether the department viewed trailing or videotaping a federal law enforcement officer as obstruction, the DHS Office of Public Affairs replied by email through an unnamed spokesperson:

"That sure sounds like obstruction of justice. Our brave ICE law enforcement face a more than 1150% increase in assaults against them. If you obstruct or assault our law enforcement, we will hunt you down and you will be prosecuted to the fullest extent of the law."

Allegations and Evidence

Over recent months, numerous news reports and viral videos have shown federal immigration officers allegedly threatening, brandishing weapons, and detaining people who followed or filmed them in public. David Bier, director of immigration studies at the Cato Institute, collected dozens of such incidents in a report released earlier this month and concluded the incidents, together with agency memos and public statements, suggest "an official, nationwide policy of intimidating and threatening people who attempt to observe and record [DHS] operations."

Legal Context: First Amendment Protections

Civil liberties advocates say treating observation and recording as obstruction violates the First Amendment. While the Supreme Court has not directly decided whether the Constitution protects the right to record federal officers, seven federal circuit courts have held that recording, observing, and warning about police activity are protected speech, provided the observer does not physically interfere and abides by reasonable time, place, and manner restrictions.

Notable appellate rulings include the Fifth Circuit (2017), which found a First Amendment right to record the police; the Tenth Circuit (2022), which let a First Amendment retaliation claim proceed after an officer prevented a man from filming a traffic stop; and the Second Circuit (2023), which ruled that arresting a man for holding a sign warning drivers of police activity violated his First Amendment rights.

As the ACLU's Scarlet Kim put it:

"The right to record publicly visible law enforcement activity is a core First Amendment right. It creates an independent record of what officers are doing... The burning question is why ICE officers feel the need to hide who they are and what they do from the public—masking their faces, lacking visible ID, driving unmarked vehicles, and now attacking those who document their activities."

Constitutional Foundation

The guiding principle behind many of these decisions was articulated by the Supreme Court in Houston v. Hill (1987):

"The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."

DHS Response Timeline

Reason contacted DHS' Office of Public Affairs on December 17 for comment on the Cato Institute report. The office replied on December 18, defending ICE officers and repeating the agency's claim of a 1,150% increase in assaults and stating that ICE does not arrest or deport U.S. citizens absent other criminal conduct. When Reason followed up asking explicitly whether recording or following federal officers constituted obstruction, DHS reiterated that it "sure sounds like obstruction of justice" and warned of prosecution for those who obstruct or assault officers.

Prosecutions And Evidence Issues

Despite the agency's warnings, an unprecedented number of federal prosecutions for allegedly assaulting or impeding federal immigration officers have collapsed in recent months. Some cases were not indicted by grand juries for lack of probable cause; others were dropped by U.S. Attorney's Offices after evidence review or because supporting proof was insufficient.

What This Means

The dispute highlights a broader tension between law enforcement safety concerns and the public's right to observe and record police activity. Legal precedent favors the right to record so long as it does not interfere with officers' duties, but DHS' recent public statements risk chilling lawful, constitutionally protected oversight. The issue may ultimately return to higher courts unless DHS clarifies its policy or the Supreme Court weighs in.

Note: This article summarizes reporting and public statements; quotes are attributed to DHS, the Cato Institute, the ACLU, and court decisions cited in the original reporting by Reason.com.