One of the most significant challenges for any liberal democracy is ensuring adequate and appropriate transparency and citizen oversight of the nation’s security services. How can we ensure that these services have the tools they need to be effective while remaining accountable to the people they are intended to serve? These are difficult, context-dependent questions that require consistent re-evaluation. In the United States, a period of such re-evaluation is being driven by a new tactic used by Immigration and Customs Enforcement agents: wearing masks while performing immigration enforcement operations.

Immigration and Customs Enforcement, known commonly as “ICE,” is responsible for a wide range of functions suggested by its name, including the identification, detention, and removal of individuals unlawfully in the country. In a nation with a proud (though profoundly uneven) tradition of welcoming “your tired, your poor, Your huddled masses yearning to breathe free” and in which those unlawfully present comprise an estimated 5 percent of the workforce, this portion of ICE’s mission has long been controversial. Nevertheless, President Donald Trump has made removal of undocumented immigrants a cornerstone of his domestic policy agenda, and under a funding bill recently passed by the Republican-controlled Congress, ICE is poised to become the United States’ largest law enforcement agency.

ICE’s aggressive operations during the first several months of President Trump’s second administration have at times been legally dubious, have disregarded due process protections, and have ensnared people lawfully in the United States. For all these reasons, they have drawn substantial criticism. One target of critics’ ire has been the increasingly common practice of ICE agents wearing masks while conducting immigration arrests. Politicians and activists opposed to this practice have argued that it has no place in American policing and have publicly identified some ICE agents involved in such immigration enforcement operations.

In response to these criticisms, the government has doubled down. Todd Lyons, ICE’s acting director, has said agents need to obscure their faces to protect themselves from “doxing”—the practice of sharing an individual’s private information online with the intention of subjecting them to harassment. The Department of Homeland Security—ICE’s parent agency, commonly called “DHS”—has said it will pursue criminal charges against those who dox its employees. And Senators Marsha Blackburn and Lindsey Graham have introduced the Protecting Law Enforcement from Doxxing Act, which would make it a felony punishable by up to five years in prison to publish the name of anyone performing or supervising immigration enforcement operations with the intent of obstructing those operations.

As I explain in a paper that will be published in the UCLA Law Review Discourse, this bill would violate the First Amendment to the United States Constitution. The First Amendment protects “the freedom of speech,” the “freedom . . . of the press,” and “the right of the people . . . petition the government for a redress of grievances.”  While these rights are not boundless, they place substantial limits on the government’s ability to restrict political speech and advocacy.

Courts will strike down a law as violating the First Amendment under what is known as the “overbreadth doctrine” if the law restricts speech in a manner that is “substantially broader than necessary” to achieve the legislature’s purpose. The Protecting Law Enforcement from Doxxing Act presents such a case.

The bill is expansive in scope, making it a crime to name anyone “authorized by law or by a Government agency to engage in or supervise the prevention, detection, investigation or prosecution of Federal … immigration law.” That includes a host of federal officials, ranging from line agents all the way up to President Trump. And while this prohibition is limited to releasing the names of government employees “with the intent to obstruct a[n] … immigration enforcement operation,” neither the bill, nor the statute it would amend, nor the cases interpreting that statute clarify what it means to “obstruct” justice in this context. But the bill’s sponsors have made clear that they intend the term to be interpreted broadly.

The problem is that the bill’s broad sweep would cover a wide range of activities that are plainly protected by the First Amendment. Acts such as writing an op-ed criticizing DHS Secretary Kristi Noem, leading a protest against named ICE agents using excessive force, or writing a report questioning President Trump’s use of the military for immigration enforcement would all be proscribed by Protecting Law Enforcement from Doxxing Act—even though they are protected speech. And because these instances of protected speech substantially outnumber circumstances of unprotected speech covered by the Act, the bill is unconstitutionally overbroad.

Even if it were not, it would still be infirm under the First Amendment. Generally, the Constitution requires that restrictions on speech “further[] a compelling interest and [are] narrowly tailored to achieve that interest.” And while preventing immigration officers from being harassed, injured, or killed is undoubtedly a compelling purpose, the Act is not narrowly tailored to achieve that purpose.  Sharing an immigration agent’s private information such as his or her home address, social security number, or personal phone number is already a crime under federal law. 

But while safeguarding that information is directly related to protecting officials from harassment and violence, the relationship between sharing an official’s name and any criminal activity is much more attenuated. While it is difficult to imagine any lawful purpose for publicly sharing an immigration agent’s social security number, sharing his or her name promotes transparency and accountability. And there is a readily available less-restrictive alternative to criminalize sharing names: Punish any underlying criminal conduct.

The Protecting Law Enforcement from Doxxing Act would violate the First Amendment’s Press and Petition Clauses. The Press Clause protects the right to share lawfully-obtained “truthful information about a matter of public significance.” The Petition Clause, meanwhile, protects the right to “petition the government for a redress of grievances.” Access to the courts is an essential component of this right. The Act violates both Clauses because it would proscribe sharing truthful information about the identities of immigration agents and their supervisors (surely a matter of public significance, particularly as regards senior government officials charged with overseeing immigration enforcement operations) and includes no carve-out for sharing the names of government officials in the course of litigation.

For all of these reasons, Congress should not enact the Protecting Law Enforcement from Doxing Act. And if it does, the courts should strike it down.

Noah Chauvin is an Associate Professor of Law at the University of Oklahoma College of Law.