The Steady State Sends Demand Letter to Department of Homeland Security Over Threats to Protected Speech
MARK S. ZAID, P.C.
Attorney-At-Law
1250 CONNECTICUT AVENUE, N.W.
SUITE 700 – PMB 5287
WASHINGTON, DC 20036
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FACSIMILE: (202) 558-4432
MARK S . ZAID, MA NAG ING P ARTN ER BRADLEY P . MO S S , P ARTNER ( adm i t t ed i n CT , DC, MD, NY) ( adm i t t ed i n DC, I L)
E-MAIL: MARK@MARKZAID.COM E-MAIL: BRAD@MARKZAID.COM K EVIN T. CA RRO LL, P ARTN ER G EO F F REY S . DEWEES E, S P ECIA L O F CO UNS EL ( adm i t t ed i n DC, NY, VA) ( adm i t t ed i n CO, DC)
E-MAIL: KEVIN@MARKZAID.COM E-MAIL: GEOFFREY@MARKZAID.COM ILANA S . G RE ENS TE IN, O F CO UNS EL ANDREW P . BAK AJ, S P ECIAL O F CO UNS E L ( adm i t t ed i n MD) ( adm i t t ed i n DC, NJ )
E-MAIL: ILANA@MARKZAID.COM E-MAIL: ANDREW@MARKZAID.COM January 27, 2026
The Honorable Kristi Noem
Secretary, U.S. Department of Homeland Security
2801 Nebraska Avenue NW
Washington, DC 20528
Via electronic mail and U.S. Mail, and through counsel
Re: Gregory Bovino, U.S. Border Patrol
Dear Madam Secretary:
We represent The Steady State, an organization of former U.S. national security professionals across the intelligence, defense, diplomacy, and homeland security sectors, committed to their oath to defend the Constitution against all enemies, foreign and domestic. The Steady State seeks to promote democracy, the rule of law, and a secure America grounded in shared civic values.
The Steady State carries out its mission primarily through the exercise of core First Amendment–protected activity, including writing, speaking, analysis, and public education. That work necessarily includes forthright discussion of the actions of federal agencies and officials, including the conduct of Department of Homeland Security paramilitary elements. To fulfill its mission credibly, The Steady State must write and speak honestly, clearly, and without euphemism about matters of public concern. The following demand arises in the context of Department of Homeland Security activity in Minneapolis that responded to constitutionally protected speech with overt violence, chemical weapons, physical assaults, and arrests, carried out by DHS paramilitaries. This activity culminated in the killings of Renee Nicole Good and Alex Pretti.
These events reasonably appear designed to operationalize the “consequences” for dissent referenced by U.S. Border Patrol official Gregory Bovino. Our client is certainly not alone in facing the chilling effect of Mr. Bovino’s words, which are just one of many demonstrations of the Trump Administration and DHS’ efforts to chill speech.
Mr. Bovino’s public warning, issued in his official capacity, that those who engage in certain forms of criticism will face “consequences” makes clear that such speech may trigger retaliation by the very agency whose conduct is being examined. In light of those statements and the surrounding context, The Steady State has already been forced to take steps to avoid or mitigate the risk of adverse consequences, including modifying how and when it communicates, thereby chilling its protected expression.
We write regarding recent public statements made by Mr. Bovino, acting in his official capacity as a Department of Homeland Security officer and while visibly armed and in uniform, warning that individuals who refer to DHS personnel as “Gestapo” or “kidnappers” will face unspecified “consequences.” 1 Mr. Bovino continued to state that “When politicians, community leaders, and some journalists engage in that heated rhetoric we keep talking about, when they make the choice to vilify law enforcement calling law enforcement ‘Gestapo’ or using the term ‘kidnapping,’ that is a choice and there are actions and consequences."
As made, this statement was an official pronouncement by a senior DHS official, speaking on behalf of the Department. It is therefore attributable to DHS itself. That statement constitutes a clear and serious violation of the First Amendment to the Constitution.
The Supreme Court has long held that government action violates the First Amendment when it is intended to, or would reasonably be understood to, chill protected speech. See Laird v. Tatum, 408 U.S. 1 (1972); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). The controlling inquiry is whether a reasonable person would interpret the government’s words or actions as a threat of retaliation for engaging in protected expression. The law does not require proof that retaliation has already occurred. It is enough that the statement would deter a person of ordinary firmness from speaking.
Mr. Bovino’s statement easily meets that standard.
Community leaders or private persons calling government officers “Gestapo” or “kidnappers,” however harsh or offensive some may find such language, is core political speech. Journalists using such language also exercise the freedom of the press, elected officials doing so may be exercising rights under the Speech and Debate Clause, and citizens listening to such statements may be exercising duties as jurors or voters, for example. It is rhetorical criticism of
1 Available at
https://www.reddit.com/r/minnesota/comments/1qn141v/bovino_says_if_you_call_ice_names_te re_will_be/. The Gestapo was the Geheime Staatspolizei, or state secret police, of Germany from 1933-45. Kidnapping includes the unlawful seizure, transport in interstate commerce, and holding of a person. See 18 U.S.C. § 1201.
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government conduct and law enforcement power. Such speech lies at the heart of the First Amendment’s protections and cannot be penalized, threatened, or deterred by the government.
An armed, uniformed DHS official warning of “consequences” for such speech is not a neutral observation. It is an explicit threat of state retaliation. When issued by an agency that wields arrest authority, detention authority, and armed force, the chilling effect is obvious and severe. A reasonable person would understand the statement as a warning that criticism of DHS could result in adverse action by the Department or its officers.
That danger is not theoretical.
In the past week, DHS officers under Mr. Bovino’s direct authority shot and killed Mr. Pretti during an encounter that, according to publicly available reporting, arose in the context of Mr. Pretti’s expressive conduct directed at federal officers. This homicide is under criminal investigation by federal, state, and local law enforcement. Regardless of how DHS may later characterize that incident, the fact remains that a citizen is dead following an encounter with DHS personnel after exercising expressive rights. Against that backdrop, a public warning that speech critical of DHS will have “consequences” carries extraordinary coercive force.
The Constitution forbids this.
Government officials may defend their actions. They may respond to criticism. They may speak. What they may not do is threaten punishment, explicitly or implicitly, for protected expression. When they do, the speech is unlawful, and the Department is exposed to substantial legal liability. We acknowledge that per public reports, on January 26, 2026, DHS relieved Mr. Bovino of his duties in Minneapolis. However, the chilling effect on The Steady State of his words as a DHS official remains.
Accordingly, we demand the following:
1. A prompt public retraction of Mr. Bovino’s statement, making clear that DHS does not threaten or impose consequences for protected speech, including harsh or offensive criticism of the Department or its officers;
2. Written assurance that DHS will not retaliate against any individual for engaging in constitutionally protected speech, including criticism of DHS, ICE, or other DHS components;
3. Immediate instruction to DHS personnel clarifying that First Amendment protected activity may not be treated as a basis for enforcement action, investigation, detention, or use of force; and
4. Your written response to whether the Department, or any of its units, agencies, officers, employees, or persons acting under its direction or control, have collected, maintained, or shared information about the exercise of First Amendment rights by individuals, as defined in 5 U.S.C. 552a, except as expressly authorized by statute.
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This demand arises in the context of DHS activity in Minneapolis that paired the policing of constitutionally-protected speech with overt violence—chemical weapons, physical assaults, and arrests—culminating in the killing of Mr. Pretti and Ms. Good, events that reasonably appear designed to operationalize the “consequences” for dissent referenced by Mr. Bovino. Our client is certainly not alone in facing the chilling effect of Mr. Bovino's words, which are just one of many demonstrations of the Trump Administration and DHS’ efforts to chill speech.
Preservation Notice
You are hereby placed on notice of your obligation to preserve all documents, communications, recordings, and electronically stored information that may be relevant to this matter. This includes, but is not limited to:
• All communications involving Mr. Bovino concerning public statements, media appearances, or guidance regarding criticism of DHS or its officers;
• All internal DHS communications referencing the terms “Gestapo,” “kidnappers,” “consequences,” protest activity, or expressive conduct directed at DHS personnel;
• All records relating to the incident involving Mr. Pretti, including body-worn camera footage, reports, internal communications, and command directives;
• All policies, guidance, or training materials concerning public speech, protest activity, or criticism of DHS; and
• Any record related to the collection, sharing, or maintenance by the Department, or any of its units, agencies, officers, employees, or persons acting under its direction or control, regarding the exercise of First Amendment rights by any individual except as expressly authorized by statute.
This preservation obligation applies to all formats and media and extends to personal devices and accounts used for official business. We request a written response within ten days of receipt of this letter. Absent a satisfactory response, our clients will consider all available legal remedies. Nothing in this letter should be construed as a waiver of any rights or claims, all of which are expressly reserved.
Sincerely,
Kevin Carroll
Partner
Counsel for The Steady State
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cc: The Honorable Pamela Bondi
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
The Honorable Rand Paul, Chairman
The Honorable Gary Peters, Ranking Member
U.S. Senate Committee on Homeland Security and Government Affairs 340 Dirksen Senate Office Building
Washington, DC, 20510
The Honorable Charles Grassley, Chairman
The Honorable Dick Durbin, Ranking Member
U.S. Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
The Honorable Andrew Garbarino, Chairman
The Honorable Bennie Thompson, Ranking Member
U.S. House of Representatives Committee on Homeland Security H2-176 Ford House Office Building
Washington, DC 20515
The Honorable Jim Jordan, Chairman
U.S. House of Representatives Committee on the Judiciary
2138 Rayburn House Building
Washington, DC 20515
The Honorable Jamie Raskin, Ranking Member
U.S. House of Representatives Committee on the Judiciary
2142 Rayburn House Office Building
Washington, DC 20515
James Percival, Esq.
General Counsel, U.S. Department of Homeland Security
245 Murray Lane, SW, Mail Stop 0485
Washington, DC 20528-0485