Columbia University alumni demonstrate at a campus entrance in support of the pro-Palestine students in New York City on June 2, 2024.Photo: Selcuk Acar/Anadolu via Getty Images
Newly unsealed records provide new details about the Trump administration’s failed effort this spring to obtain a search warrant for an Instagram account run by student protesters at Columbia University.
The FBI and federal prosecutors sought a sweeping warrant, the records show, that would have identified the people who ran the account along with every user who had interacted with it since January 2024.
Between March 15 and April 14, the FBI and the Department of Justice filed multiple search warrant applications and appeared numerous times before two different judges in Manhattan federal court as part of an investigation into Columbia University Apartheid Divest, or CUAD, a student group. A magistrate judge denied the application three times in March, a decision which a district court judge later affirmed in April.
“The government is trying to criminalize constitutionally protected political expression.”
“The government is trying to criminalize constitutionally protected political expression associated with the pro-Palestine protest movement,” said Brian Hauss, a senior staff attorney at the American Civil Liberties Union.
It’s rare for judges to deny a search warrant application, civil liberties watchdogs told The Intercept, much less to deny it multiple times.
“It is unusual for a magistrate judge to reject a search warrant application from the government,” said F. Mario Trujillo, a staff attorney at the Electronic Frontier Foundation, in an emailed statement. “And it is even more unusual for the government to try and appeal that decision to a district court judge, who again rejected it. That speaks to the lack probable cause in the warrant application.”
The records — which include transcripts of hearings with the judges as well as the government’s filings — provide a rare blow-by-blow of the search warrant application process, which, in line with normal procedure, was initially conducted under seal. The materials were unsealed on Tuesday as part of a court action originally filed by the New York Times in May, which The Intercept supported.
Columbia University declined to comment for this story and CUAD did not immediately respond to an inquiry.
The government first sought a search warrant on March 15, the records show. The Times previously reported that the Department of Justice sought the search warrant after a top official, Emil Bove, ordered the department’s civil rights division to find a list of CUAD’s members.
For a month, the government argued to judges that a March 14 post on Instagram from @cuapartheiddivest — the group was banned from Instagram in late March for violating community standards — was a “true threat” against the university’s then-interim president Katrina Armstrong in violation of federal law. The post referred to the university’s use of the New York Police Department to break up campus demonstrations and the targeting of student activists by U.S. Immigration and Customs Enforcement.
Screenshot from the government’s application for a search warrant targeting the Instagram account of Columbia University Apartheid Divest. Source: Court filing
“The people will not stand for Columbia University’s shameless complicity in genocide!” reads the post, in part, next to a photo of graffiti spray-painted onto a Manhattan mansion used as the president’s housing at Columbia. “The University’s repression has only bred more resistance and Columbia has lit a flame it can’t control. Katrina Armstrong you will not be allowed peace as you sic NYPD officers and ICE agents on your own students for opposing the genocide of the Palestinian people.”
“FREE THEM ALL” reads the graffiti in the photo, alongside an inverted triangle, a much-disputed symbol that pro-Palestine protesters in the U.S. and around the world have used. Hamas, the militant group that ruled the occupied Gaza Strip, has also used the inverted triangle to identify bombing targets, the FBI agent — whose name was redacted — wrote in an affidavit accompanying the search warrant application.
The FBI agent wrote that the photograph of the graffiti and message in the Instagram post were sufficient probable cause of an “interstate communication of a threat to injure, in violation of” the law.
The argument, made in multiple hearings over the following weeks, failed to convince two judges.
Reviewing the initial application, Chief Magistrate Judge Sarah Netburn determined it was a “close call” and asked for more information about the “symbolism and context of the posting,” according to a letter from the government. On March 16, Netburn denied the search warrant application, finding the post “seemed like protected speech” under the First Amendment, the government letter said.
The Justice Department quickly appealed the rare denial of a search warrant application.
“Because Judge Netburn’s ruling significantly impedes an ongoing investigation into credible threats of violence against an individual, prompt reversal is necessary,” wrote Alec C. Ward, a trial attorney in the Justice Department’s civil rights division, in a March 20 letter to a district court judge.
Following hearings on March 24 and March 25, which largely concerned the Justice Department’s procedural missteps, District Court Judge John Koeltl referred the search application back to Netburn. During a March 28 hearing, Netburn denied the request for a search warrant application once again.
Netburn criticized the government for failing to “clearly represent what the case law is” around the First Amendment and threats.
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“Words that may reflect heated rhetoric, in the context in which they are made would not reasonably engender fear, do not constitute a true threat,” Netburn said, ruling that the government hadn’t met its burden to establish that the triangle symbol “in the context here and in the context of the statement that the president of Columbia University will not have peace, is a true threat, as the law identifies.”
The government also hadn’t indicated whether Armstrong, the interim Columbia president, herself actually interpreted the statements as threatening. Under binding precedent from the U.S. Supreme Court, for a message to be a “true threat” outside the First Amendment’s protection, a reasonable person must interpret the statement as threatening, and the speaker must have some awareness that the recipient would take it as such.
“We have not had an opportunity to put that question directly to Ms. Armstrong at this point,” Ward told Netburn. The FBI had flagged the post to Armstrong’s office, Ward said at the hearing, “conveying its belief that the threat should be taken seriously from a security standpoint.”
Ward compared the Instagram post to burning a cross outside a residence, which is not protected speech under the First Amendment when done to intimidate. He said the graffiti and cross burning were not “exactly equivalent,” but still comparable as “symbolic threats.”
After denying the application, Netburn ordered that, if the government ever tried to get another court to authorize a search warrant for CUAD’s account, they had to include a transcript of the hearing before her.
“Unlike cross burning, there is no evidence that the inverted triangle is being used to designate targets for violence.”
“Magistrate Judge Netburn’s analysis is spot on,” said Hauss, the ACLU lawyer, in an emailed statement to The Intercept. “A true threat is a serious expression of an intent to commit violence. Unlike cross burning, there is no evidence that the inverted triangle is being used to designate targets for violence in the United States. And there is no evidence that President Armstrong or members of the Columbia community understood CUAD’s Instagram message to convey an intent to commit violence.”
The government appealed Netburn’s third denial of the search warrant application. At an April 14 hearing, Koeltl agreed with Netburn’s ruling.
“Context matters,” Koeltl said at the hearing. “There were no such explicit threats in the Instagram post about what was written on the wall on then-President Armstrong’s residence.”
“As for the explicit message on the wall—’FREE THEM ALL’—that phrase does not convey a threat,” Koeltl said, “nor is there any reason to conclude that the red paint was intended to convey a purported threat.”
“The accompanying text also does not contain an explicit or implicit threat of violence,” he ruled. “It contains political opposition to Columbia’s policy.”
In a final bizarre twist to the search warrant saga, when the New York Times sought to unseal the materials last month, the government did not oppose the request. On Tuesday evening, the Justice Department filed copies with minimal redactions.
“The government sought to unmask an anonymous Instagram poster based largely on the poster’s political speech on the theory that it might uncover evidence of the poster’s subjective intent to communicate a threat,” said Gabe Walters, an attorney with the Foundation for Individual Rights and Expression, by email.
“It’s important that judges, reviewing a search warrant based on speech, provide the breathing space for free speech that the First Amendment requires, even where the speech at issue arguably communicates a threat,” Walters wrote. “By holding the government to its burden on the subjective intent element, these multiple judges performed that essential gatekeeping function.”
Update: June 4, 2025, 2:08 p.m. ET
This story has been updated to include quotes from attorneys with the American Civil Liberties Union and the Foundation for Individual Rights and Expression.
Correction: June 13, 2025
The story has been updated to correct a summary of U.S. Supreme Court “true threats” precedent.
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