The Volokh Conspiracy
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Court Refuses to Order Pam Bondi to Delete Tweeted Booking Photos in Prosecution for Interference with ICE in Minneapolis
From Magistrate Judge Elsa Bullard (D. Minn.) Wednesday in U.S. v. Doyle:
On January 26, 2026, the Government filed a complaint alleging that Defendant Joshua Doyle "did forcibly assault, resist, oppose, impede, or interfere with … Victim 1, a United State[s] Homeland Security Investigations Special Agent" performing official duties, and made physical contact with the victim, in violation of 18 U.S.C. § 111(a)(1)….
Mr. Doyle moves for a "gag order" based on two posts that he alleges former Attorney General Pam Bondi made "regarding Mr. Doyle" prior to his initial appearance. Mr. Doyle asks me to "prohibit[ ] the Government from making further statements about [him]" and to direct Bondi to remove the two posts.
On January 28, former Attorney General Pam Bondi allegedly made two posts on the social-media platform, X.
In the first post, made at 12:53 pm., she stated:
I am on the ground in Minneapolis today. Federal agents have arrested 16 Minnesota rioters for allegedly assaulting federal law enforcement—people who have been resisting and impeding our federal law enforcement agents. We expect more arrests to come. I've said it before and I'll say it again: NOTHING will stop President Trump and this Department of Justice from enforcing the law."
In the second post, made at 1:10 p.m., Mr. Doyle alleges that Bondi posted a "'booking' style photo" of him….
Mr. Doyle's briefing suggests three separate grounds for a gag order.
First, he suggests that a gag order should issue based on his compelling privacy interest in the booking photos. He relies on a civil, Freedom of Information Act ("FOIA") case, Detroit Free Press Inc. v. United States Department of Justice (6th Cir. 2016) (en banc). There, a newspaper asked the Government to disclose booking photos of defendants in an active criminal prosecution. When the Government denied its request, the newspaper sued, arguing that FOIA required disclosure. The Government argued that nondisclosure of the booking photos was permissible under FOIA's Exemption 7(C).
The court's extensive Exemption 7(C) analysis considered whether the defendants had a privacy interest in the photos and, if so, whether the privacy interest outweighed "the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." The court agreed with the Government that defendants generally have "a non-trivial privacy interest" in booking photos. It remanded to the district court to assess whether public interest in understanding government operations or activities under FOIA outweighed the defendants' privacy interests in that particular case.
Mr. Doyle plucks from Detroit Free Press's lengthy analysis the holding that defendants have a privacy interest in booking photos; he notes that this is consistent with policy and regulations recognizing that booking photos are sensitive information. But as Mr. Doyle seems to acknowledge, a privacy interest alone doesn't authorize me to issue a gag order. Indeed, even Detroit Free Press indicates that booking photos may be disclosed under some circumstances. Mr. Doyle certainly has some privacy interest in his booking photo. But the parties do not provide fulsome discussion of Mr. Doyle's privacy interest weighed against the Government's interests. I therefore reject any suggestion that I can restrain the Government from publicizing the booking photo based solely on Mr. Doyle's privacy interest in it.
Second, Mr. Doyle argues that a gag order should issue because Bondi's X posts violate his Sixth Amendment rights to a fair trial, undermining the presumption of innocence and "creat[ing] an unacceptable risk of prejudice" by tainting "'the minds of the jurors at trial.'" He claims that Bondi deleting her posts would "minimize[ ] the ongoing damage that the Government has already done."
Mr. Doyle relies on Beck v. Washington (1962), which concerned a high-profile criminal case that received significant, lengthy pre-trial publicity. During jury selection, venire "members were examined by the court and counsel at length." Those admitting bias or "preformed opinion" were excused. The defendant used all his peremptory challenges.
The Court's "study of the voir dire indicate[d] clearly that each juror's qualifications as to the impartiality far exceeded the minimum standards this Court established in its earlier cases." Thus, the Court could "[ ]not say the pretrial publicity was so intensive and extensive or the examination of the entire panel revealed such prejudice that the court could not believe the answers of the jurors and would be compelled to find bias or preformed opinion as a matter of law."
Beck concluded: "While this Court stands ready to correct violations of constitutional rights, it also holds that it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality." It held that the defendant there hadn't met this burden.
Beck thus teaches that even with significant pre-trial publicity, a robust jury-selection process can safeguard against essential unfairness. Here, the two X posts are far less intensive and extensive than the prolonged media campaign in Beck. Rigorous jury selection can safeguard against any potential prejudice caused. Therefore, I find that Mr. Doyle has not met his burden under Beck to demonstrate the "reality" that Bondi's publication of the two X posts will cause essential unfairness at trial in violation of his Sixth Amendment rights.
Third, Mr. Doyle suggests that a gag order should issue because former Attorney General Bondi was a legal representative in this case when she made the posts. Mr. Doyle acknowledges that prior restraints on speech are strongly disfavored as a serious infringement on the First Amendment rights of the public and the press. But he relies on Gentile v. State Bar of Nevada, (1991), to argue that these concerns are lessened when the speech being constrained is that of the case's lawyers.
In Gentile, the Court considered a challenge to a Nevada Supreme Court rule prohibiting an attorney from commenting about a case to the media if the attorney knew or should have known the comments would "have a substantial likelihood of materially prejudicing an adjudicative proceeding." The Court's earlier opinions "expressly contemplated that the speech of those participating before the courts could be limited," indicating that "a less demanding standard than [the clear-and-present danger standard] established for regulation of the press" applied to legal representatives. Gentile therefore held that the "substantial likelihood of material prejudice" standard was constitutionally sufficient to justify proscribing an attorney's extrajudicial comments under the state rule.
Here, neither party addresses the fact that Bondi is no longer a lawyer in this case [since she was dismissed as AG on April 2] or what impact her now-non-legal-representative status has on the applicable standard. But even under Gentile's relaxed standard for lawyers, I find that Mr. Doyle has not met his burden.
Bondi's two posts do not amount to a prolonged, overly divulgent, inflammatory mainstream media campaign against Mr. Doyle. And if Bondi's posts were reposted by others (a point Mr. Doyle doesn't address), ordering her to delete her original posts wouldn't resolve the problem of potential prejudice. Thus, Mr. Doyle has not shown that prejudice is substantially likely or that the requested remedy could alleviate any likely prejudice. As discussed, jury selection is the best guard against this risk.
