An Arizona lawmaker who shared the whereabouts of federal immigration officers on social media sparked a national debate, but First Amendment attorneys said what she did was legal.
Yes, the public has a right to post about what law enforcement is doing, said Gregg Leslie and James Weinstein, attorneys at Arizona State University's First Amendment Clinic.
"The public has a right to report on publicly observable events or data about a law enforcement's official duties," Weinstein said.
Where actions can become illegal, he said, is if a person starts to physically interfere or obstruct an officer from their work.
The dispute in Arizona comes after a right-wing social media account called "Libs of TikTok" called out state Sen. Analise Ortiz, a Democrat, for posting the location of U.S. Immigration and Customs Enforcement. The account accused Ortiz of "actively impeding and doxxing" the agents' efforts and said she should be charged.
U.S. Department of Homeland Security Assistant Secretary Tricia McLaughlin said Ortiz was "siding with vicious cartels," endangering agents and weakening national security.
"This certainly looks like obstruction of justice," she said.
But the notion that Ortiz's speech isn't protected or obstructs justice is just "absolutely irresponsible and lawless," Weinstein told The Republic.
"I think it would be a very odd definition of interfering with law enforcement to say something (Ortiz) saw in the street that she feels is illegal activity by the government, she still has an obligation to keep quiet," Leslie said.
It's similar to apps that alert drivers when speeding cameras or red-light cameras are ahead, Leslie and Weinstein said.
The exceptions would be if Ortiz had physically blocked or stopped ICE agents from their duties or if she had illegally obtained the information, they said.
"If you were working as a file clerk in ICE and you saw a list where the next raids would be and you posted that, that could be a crime," Weinstein said.
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But if Ortiz hadn't played a role in the theft and instead got the information from someone else who obtained it illegally, her speech would still be protected, Weinstein said.
The First Amendment protects the disclosure of illegally intercepted information, according to the U.S. Supreme Court's decision on the 2000 case Bartnicki v. Hopper. A union negotiator and union president's phone call had been wiretapped by an unidentified source and leaked to a radio station, which aired the call. The union sued the radio station.
But the court said, "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."
Reporting ICE agents' publicly observable duties is "by defintion, public concern," Weinstein said, but without evidence or reason to think Ortiz came by the information illegally, he questioned the need for an investigation.
Nonetheless, Sen. President Warren Petersen, a Republican running for attorney general in 2026, called for a federal investigation of Ortiz. Pinal County Attorney Brad Miller, a Republican, volunteered to conduct the investigation.
Arizona Attorney General Kris Mayes condemned Petersen and Miller, saying Ortiz's posts were protected by the First Amendment. She also suggested an investigation could run afoul of Arizona's anti-SLAPP law, meant to clamp down on strategic lawsuits against public participation.
Ortiz could assert the anti-SLAPP law as a defense if Miller were to investigate and prosecute her, Leslie said. A judge would then have to decide if Miller was trying to suppress Ortiz's protected free speech.
A federal investigation of Ortiz would be conducted by the U.S. Department of Justice or the FBI. The DOJ declined to comment when The Arizona Republic questioned whether Ortiz was under investigation, citing a policy to neither confirm nor deny the existence of an investigation. The FBI had no comment when contacted by the Republic.
Taylor Seely is a First Amendment Reporting Fellow at The Arizona Republic / azcentral.com. Do you have a story about the government infringing on your First Amendment rights? Reach her at [email protected] or by phone at 480-476-6116.
Seely's role is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.
This article originally appeared on Arizona Republic: How the First Amendment protects Sen. Ortiz’s ICE posts
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