No one should have to choose between speaking freely and protecting their immigration status. Yet that’s precisely the choice the Trump administration’s mass surveillance of online speech forces on noncitizens living in the U.S.   

Last fall, we sued on behalf of three major labor unions to stop this surveillance program. And just this month, we won our first major ruling: A federal district court denied the government’s motion to dismiss our lawsuit. This means the case can move forward—a win for free speech and a critical step in protecting our First Amendment rights online. We’ve already explained why this is a big deal for our clients, so let's take a closer look at the court’s reasoning.  

Our Lawsuit 

 Since taking power, the Trump administration has used AI and other automated tools to broadly surveil the social media and online speech of visa and green card holders, with the goal of identifying and punishing people who express views it opposes. The government is targeting a broad range of views, including criticism of the Trump administration; support for Palestine or criticism of Israel; “rationalizing or making light of” Charlie Kirk’s murder; and anything nebulously “hostile” to American culture, founding principles, “traditional American views,” or “our way of life.”  

It has paired that surveillance with a public intimidation campaign. High-ranking officials have explicitly threatened to punish noncitizens for their online speech, then followed through with a series of terrifying viewpoint-driven enforcement actions. This has led to a significant chilling effect on speech, not just for noncitizens, but also for their families, coworkers, and friends. 

In response, three major labor unions—the United Auto Workers (UAW), the Communications Workers of America (CWA), and the American Federation of Teachers (AFT)—sued the Departments of State and Homeland Security alleging that this viewpoint-based surveillance program violates the First Amendment and the Administrative Procedure Act (APA).  The unions are represented by EFF, Muslim Advocates (MA), and the Media Freedom & Information Access Clinic (MFIA). 

The government moved to dismiss our lawsuit, arguing first that federal immigration law prevents federal district courts from hearing the case, and second, that the unions don’t have “standing” to sue. Judge Alvin K. Hellerstein of the Southern District of New York rejected both arguments and allowed the case to proceed. At this stage in the litigation, the court accepted all of the facts in our complaint as true and analyzed the law based on those facts. We will now prove these facts as the case proceeds. 

Federal Immigration Law Doesn’t Block Our Lawsuit 

 The government first argued that the court had no power to hear our case at all. It pointed to three provisions of the Immigration and Nationality Act (INA) that restrict when federal courts can review immigration matters. The district court disagreed and rejected each provision in turn. 

The first provision, 8 U.S.C. § 1252(b)(9), is often called the “zipper clause.” It bars federal courts from hearing challenges that arise from efforts to deport someone, except through review of an individual’s final removal order. The government claimed the zipper clause applies here because our lawsuit is really an effort to stop it from initiating adverse immigration actions. 

 The district court wholly rejected this argument. Relying on the Second Circuit’s decision in Ozturk v. Hyde, it held that the zipper clause bars only challenges to a particular individual’s removal proceedings, not a lawsuit like ours that challenges the constitutionality of the surveillance program itself. That the surveillance program might affect someone’s immigration proceeding down the line doesn’t turn our lawsuit into a removal challenge. 

 The court similarly rejected the government’s argument that § 1252(g) and § 1252(f)(1) prevent federal courts from hearing this case. Our suit, the court explained, “challenges the constitutionality of a government policy that is collateral to any active removal proceedings,” so § 1252(g) doesn’t apply. And § 1252(f)(1) only limits what kind of relief a court can give. So while the court may not be able to stop a particular person’s removal proceedings, it can still block “an unlawful surveillance program that suppresses free speech.” 

 The Unions Have Standing to Sue 

 To sue in federal court, a plaintiff must show that it has “standing” to bring its claims. This requires a plaintiff to show an “injury in fact” that is, among other things, “concrete.” That’s often a high bar in surveillance cases, where plaintiffs can’t easily see what the government is doing behind the scenes. And the Supreme Court has held that a person’s mere subjective fear of surveillance is too speculative to confer standing.  

Even so, our plaintiffs cleared the bar. The court held that the unions alleged concrete injuries, including a chill on members’ speech that is objectively reasonable, not just subjectively felt. It found that the unions had established standing in two ways: “organizational standing,” based on the unions’ own injuries, and “associational standing,” based on injuries the unions’ members have suffered. 

Organizational Standing 

The court first held that our plaintiffs had successfully alleged an injury to the unions themselves (injury was the only aspect of organizational standing the government disputed). The surveillance program has harmed the unions’ ability to carry out their core responsibilities, including “organizing their members and advocating for the unions’ goals.” The court made two key points: 

1. Unions Are Injured When Members Go Silent 

As we explained in our complaint, the surveillance program has caused members to step back from union leadership roles; stop participating in union activities online and in person; remove their names from union webpages; and avoid filling out bargaining surveys. Members who might otherwise spread the unions’ message and raise awareness of union issues are staying quiet, hampering the unions’ ability to organize. The court said this amounts to a concrete injury for purposes of standing. 

2. Surveillance Doesn’t Need to Target Pro-Union Speech  

 The court also rejected the government’s claim that members’ retreat from union activities was “essentially an overreaction,” because the surveillance doesn't target pro-union views. The court said this misunderstands the issue: “the question is whether the Government’s conduct would deter a person of ordinary firmness from engaging in protected activity, not whether the specific expression a member forgoes is itself among the viewpoints the Government disfavors.” 

Here, the surveillance program monitors noncitizens’ online activity indiscriminately, and members “cannot reliably predict which of their activities will be captured” and attributed to a disfavored viewpoint. What’s more, the court noted, the unions’ organizing often happens alongside the very advocacy the government is alleged to target, “including pro-Palestine and anti-ICE activism on college campuses.” That makes members’ retreat from union activity a foreseeable consequence of the program. 

Associational Standing  

 The court also held that the unions established associational standing to sue on behalf of their members. Of the three requirements for associational standing, the government challenged only two. It argued that members lacked sufficiently concrete injuries to sue in their own right, and that the claims aren’t “germane” to the unions’ purpose. 

The court disagreed and found associational standing for every claim but one: members’ right to receive information. That claim survives anyway, because the unions’ organizational standing covers it. Along the way, the court made several important rulings. 

 1. The Ongoing Surveillance Is a Present Injury 

 As a threshold matter, the government argued that our case is a “pre-enforcement challenge,” meaning we sued before the government actually punished anyone. That would trigger a different test, and the government argued we failed it because we hadn’t alleged a sufficiently imminent threat of prosecution. 

The court disagreed, explaining that “Plaintiffs’ allegations are of an ongoing surveillance program that is actively chilling the speech of their members and otherwise causing harm.” That chilling effect is a First Amendment injury even if there isn’t a direct prohibition on speech. And when government conduct is actively chilling speech right now, a challenge to it isn’t pre-enforcement. 

 2. Surveillance + Public Threats Reasonably Chills Speech 

 The court rejected the government’s argument that we alleged only a generalized, subjective, speculative fear of surveillance, explaining that “the chilling effect” of the program can “itself be an injury when the plaintiffs are surveilled.” Here, plaintiffs have alleged that their members are under active surveillance, which has had objective chilling effects on their speech. And the government is targeting certain disfavored viewpoints, making it “viewpoint discrimination” that is “presumptively unconstitutional.” 

The chill is also objectively reasonable, the court held, because the government has extensively publicized the surveillance program through public statements and social media posts, making clear that noncitizens who post disfavored views will be targeted for removal. Notably, the court agreed with us that the “threat of adverse immigration consequences, under a government whose harsh immigration crackdowns has been heavily publicized and reported on, is certainly enough to deter a person of ordinary firmness from the exercise of First Amendment rights.” This is a concrete injury sufficient for standing. 

3. Demanding Social Media Handles Also Causes Harm 

Under the surveillance program, applicants for certain immigration benefits must disclose all social media handles they have used during the preceding five years and, in some instances, maintain public social media accounts. The district court held that this too amounts to a First Amendment injury, undermining the rights to anonymity and freedom of association.  

The judge pointed to one CWA member we identified, a lawful permanent resident with a pending naturalization application who is subject to the five-year disclosure requirement. The member has deleted one social media account, set another to private, and removed past posts expressing disfavored views. These allegations, the court said, show an actual and objectively reasonable injury due to the government’s surveillance program.

4. General, Public Threats Can Still Be Coercive 

We also argued that the Trump administration is waging a campaign of coercive threats to suppress disfavored speech, which the First Amendment prohibits. The court agreed that this campaign can be an actionable injury of its own. 

Notably, the court held that it didn’t matter that the government’s statements were not specifically targeted at certain individuals, and were instead made on social media or to the public. In this case, the court explained, “the number, severity, and high-profile examples of action upon those threats are such that a reasonable person would perceive the communication as coercive.” 

That means it’s reasonable that the unions’ members “would, and did, limit their public speech on disfavored viewpoints” in response. That the threats were made to the general public “does not diminish this injury,” as the very purpose of the challenged surveillance program is to intimidate noncitizens into silence.  

5. Free Speech is Central to Union Functioning 

The court also found that the unions met the second prong of associational standing. It held that the unions’ interests in protecting their members’ rights to speak freely, organize, and advocate, are “germane” to the unions’ missions. The court put it plainly:

The freedom of Plaintiffs’ members to speak, associate, and appear publicly is not incidental to union work, but rather is the mechanism through which unions recruit, organize, communicate, and bargain. A program alleged to silence members and drive them from the unions’ rolls therefore strikes at the unions’ representational function itself.

Next Steps 

When the government surveils what people post online and threatens to punish them for their viewpoints, the result is exactly what our clients have experienced. Members have deleted their accounts, scrubbed posts, and withdrawn from union activities. 

The government must now answer our complaint and we will move forward with the discovery process, in which we anticipate getting more information from the government about its surveillance program. We look forward to continuing to prove our case. 

This week marks four years since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade’s constitutional protections for people seeking abortion care. Anniversaries are a moment to take stock, and over the last four years, EFF has seen firsthand how digital rights and reproductive rights have become increasingly intertwined. One major way this has happened: the fight over abortion has also become a fight over online speech and government censorship as a steady stream of proposed laws, cease-and-desist letters, lawsuits, and government investigations have targeted the websites and online resources that help people find and learn about reproductive healthcare.

This is an effort by anti-abortion government officials to mold the information ecosystem, restrict what people can read, and cut off the ways people communicate with one another. We’ve watched this build for years, and the encouraging news is that many of these efforts have failed. The worrying news is that they keep coming. And if they’re allowed to succeed, this could have repercussions for freedom of expression online beyond reproductive rights.

Targeting Sites That Just Share Information

The clearest tell that this is also a war on speech is that officials have aimed their efforts not just at abortion providers or the entities that prescribe and sell medication abortion, but also at websites that do nothing more than tell people what their options are, how to find a doctor, and where abortion remains legal.

Cease-and-Desists & Takedown Demands

State attorneys general have been hitting these online information hubs with cease-and-desist letters and takedown demands. Just this month, for example, Alabama Attorney General Steve Marshall sent cease-and-desist letters to multiple groups with abortion-related websites, including Plan C, a public health campaign that provides educational resources and research on abortion access. Plan C doesn’t sell or ship abortion pills. It simply provides information. Marshall’s office nonetheless claimed Plan C’s website “facilitates, aids, and abets” illegal abortion. The Arkansas attorney general similarly sent out cease-and-desists to several organizations regarding their websites, including Mayday Health, which, like Plan C, provides only information and does not directly prescribe or mail pills.

What’s especially concerning is that the state doesn’t have to win, or even file, a lawsuit to get what it wants.

In another example from earlier this year, North Dakota Attorney General Drew Wrigley threatened legal action and ordered the Prairie Abortion Fund to scrub information off of its website, not because the fund sold pills, but because its site linked to several outside informational resources. The Attorney General primarily focused on the fund’s link to Plan C, meaning the biggest alleged issue was a link to a website that links to other websites where pills can be accessed.

What’s especially concerning is that the state doesn’t have to win, or even file, a lawsuit to get what it wants. Especially for smaller organizations and funds, a letter threatening legal action can be enough to chill their speech, causing them to remove important content and go quiet.

Censorship Mandates

Legislators in multiple states have also attempted to make it illegal to share resources on how to obtain an abortion, including on purely informational websites with a national or global audience. South Dakota recently passed a law making it a felony to “advertise” anything “described in a manner calculated to lead another to use or apply it for producing an abortion.” Language this broad can easily apply to websites that simply engage in First Amendment-protected advocacy or provide educational resources. Mayday Health, which operates one such website, has since sued the state in federal court to block the law. The lawsuit argues the law could reach something as small as wearing a sweatshirt that carries Mayday’s web address.

Other state legislatures have made similar efforts. Last year, for example, Texas introduced a bill that would have made it illegal to “provide information” on how to obtain an abortion-inducing drug. If you exchanged emails, had an online chat, or created a website that shared information about legal abortion services in other states, you could have violated this bill. Luckily this particular bill did not pass, but Texas has attempted to pass similar laws for several years now.

Dressing Censorship Up as Consumer Protection

A major way anti-abortion officials are targeting online speech is by weaponizing consumer protection and deceptive advertising laws, claiming that providing information about abortion violates them. This tactic is a threat to free speech rights. The First Amendment protects publishing truthful information on a public issue, and the Supreme Court has expressly said that includes providing information about legal abortion in a state where it is illegal.

Yet states like South Dakota have continued to use deceptive advertising claims to go after abortion speech. Last year, South Dakota sent a cease-and-desist and then filed a lawsuit against Mayday Health for running ads that simply read: “Pregnant? Don’t want to be?” with a link to Mayday’s website. The state claimed the ads were “deceptive.” Mayday then counter-sued in federal court, challenging South Dakota’s actions under the First Amendment. Though the federal judge ultimately declined to step in while the parallel state case was pending, she made a point of saying she believed Mayday’s website constitutes “speech subject to protection under the First Amendment.”

Other states have attempted to run the same play. Missouri sued Planned Parenthood in 2025 under its consumer-protection statute, calling a webpage that says abortion pills are safe an “unfair and deceptive” trade practice. Florida went even further, invoking its RICO law—a law typically used for organized crime—over the same kind of statement. Florida leaned heavily on a single study funded by an anti-abortion think tank, even as major medical organizations and decades of research put the serious-complication rate below half a percent. States should not be able to cherry-pick studies in order to erase online speech.

Going After Intermediaries & Erasing Whole Websites

Some officials aren’t content to restrict only certain abortion-related content—they want the websites gone entirely.

Take, for example, the cease-and-desist letters sent by the Arkansas attorney general last year. Letters were sent directly to internet intermediaries (entities that facilitate use of the internet, such as internet service providers, web-hosting providers, or things like search engines and social media platforms). The letters demanded that both a domain registry company and a web host stop supporting a site that discusses abortion drugs. But as we know, if we cut off the host or the domain, the speech disappears for everyone—not just for people in Arkansas.

Likewise, Texas’s 2025 bill would have required intermediaries to take down abortion-related content. It’s worth remembering that the imposition of civil and criminal liability on intermediaries also conflicts with a federal law that protects online intermediaries’ ability to host user-generated speech, 47 U.S.C. § 230 (“Section 230”), including speech about abortion medication.

The push has gone federal, too. In March 2026, Senator Bill Cassidy and colleagues on the Senate Health, Education, Labor and Pensions Committee pressed the FDA to use every tool it has against online sellers, including leaning on the domain registrars that keep these sites online.

Why This Should Worry Everyone

It’s tempting to see this as limited to the fight over reproductive rights. That would be a mistake. For people seeking care, the immediate harm is obvious: the internet is often the only place to find accurate, potentially life-saving information, and every letter, lawsuit, and takedown threat makes that information harder to find and riskier to share.

But the damage doesn’t stop there. We’re witnessing a live experiment in how to use consumer-protection laws, criminal statutes, and pressure on intermediaries to suppress a disfavored viewpoint, pull information offline, and make websites disappear. To think these tactics can only be used against abortion speech would be naïve. 

We hope courts and legislatures will continue to protect free speech online. But the continued drumbeat of threatening letters, lawsuits, and investigations is its own kind of harm. Here at EFF, we’ll keep defending the right to share and read information online—about abortion, and about everything else.