America Does Not Arrest People for Exercising Their First Amendment Rights

By Lucretia Hughes Klucken

MINNEAPOLIS — The Council on American-Islamic Relations is calling for a criminal investigation after conservative journalists James O’Keefe and Cam Higby entered Minnesota polling places wearing Muslim clothing, using foreign accents and pretending to be registered voters during an undercover investigation of the state’s election laws.

Let us establish one principle before emotions take over: America does not arrest people merely because their speech is offensive, controversial, embarrassing or politically inconvenient.

The First Amendment protects freedom of speech, freedom of the press, religious expression, peaceful assembly and the right to petition government.

It does not protect only polite speech.

It does not protect only liberal journalists.

It does not disappear because an advocacy organization objects to how a journalist dressed or spoke.

But the First Amendment is also not a license to violate generally applicable criminal laws. If investigators find evidence of voter impersonation, perjury, unlawful interference with an election or another specific offense, that conduct may be investigated independently of any political message.

That distinction matters in this case.

O’Keefe and Higby visited several Minneapolis polling places during Minnesota’s Aug. 11 primary. They wore what they described as Muslim clothing, imitated foreign accents and secretly recorded conversations with election workers.

Their stated purpose was to test Minnesota’s “vouching” system, which allows a registered voter from the same precinct to confirm another eligible voter’s residence.

In the released video, poll workers explained that one registered voter may vouch for as many as eight people.

The video prompted claims that eight unregistered foreigners could vote without identification simply because another person vouched for them.

That description leaves out important parts of the law.

Vouching establishes a person’s residence within the precinct. It does not eliminate every other eligibility requirement. A person registering on Election Day must still affirm eligibility and provide identifying information, such as a Minnesota driver’s license or identification card number or the last four digits of a Social Security number.

The voucher must be registered in the same precinct and must sign an oath under penalty of perjury stating that the person being vouched for lives there.

O’Keefe and Higby argue that their video exposed how easily dishonest people could exploit the system.

Higby said the team never cast a ballot, touched a ballot or signed an affidavit.

“The intention of this video was NEVER to actually vote,” Higby wrote online. “The intention was only to expose flaws in the system.”

Minnesota Secretary of State Steve Simon accused the group of impersonating Minnesota voters, falsely claiming to be registered and using concealed cameras to record polling-place employees.

Simon called the conduct “outrageous and totally unacceptable” and said law enforcement was reviewing the situation.

As of Wednesday, authorities had not publicly announced criminal charges against O’Keefe or Higby.

CAIR-Minnesota Executive Director Jaylani Hussein also called for an investigation, arguing that using fake Muslim identities, accents and religious stereotypes was not a harmless political stunt.

“If someone believes Minnesota’s voting laws are vulnerable, there are lawful ways to raise those concerns,” Hussein said in a statement.

CAIR asked for prosecution if investigators determine that Minnesota law was violated.

That is more precise than saying the organization demanded that the men be arrested solely for wearing Muslim clothing or using accents. Still, the public must remain alert whenever demands for prosecution become entangled with objections to protected expression.

Wearing religious clothing as part of a political demonstration may be offensive to some people. Imitating an accent may be disrespectful. Using stereotypes may be crude.

Offensive is not automatically criminal.

The government cannot arrest someone simply for mocking a religion, criticizing a faith or portraying members of a religious group in an unflattering way. The First Amendment protects criticism of Christianity, Islam, Judaism and every other religion.

That protection must apply equally.

Christians routinely see their faith ridiculed in television programs, movies, political demonstrations and public art. We are told the First Amendment protects those expressions, even when believers find them deeply offensive.

The same constitutional rule applies here.

Government cannot maintain one standard for speech involving Christianity and another for speech involving Islam.

If O’Keefe and Higby committed an actual crime, prosecutors should identify the law, present the evidence and prove the charge in court. The offense cannot simply be that Muslim advocates disliked their clothing, accents or conclusions.

The investigation also raises questions about undercover journalism.

Reporters have long concealed their identities when investigating government corruption, unsafe workplaces, criminal activity and consumer fraud. Undercover reporting sometimes requires a journalist to play a role, use a fictitious name or create a scenario designed to test how an institution responds.

That does not grant journalists immunity from the law. Trespassing, perjury, theft and actual election fraud do not become lawful merely because someone calls the conduct journalism.

But officials must be careful not to weaponize vague allegations against reporters because their work embarrasses the government.

Minnesota officials should address what the video showed.

Could a dishonest registered voter falsely vouch for eight people? How does the state detect a fraudulent oath? Are voter registrations verified before a ballot is counted or only after the election? How often do post-election checks uncover discrepancies? What penalties apply when someone lies?

Simon’s office said fewer than 0.6% of ballots cast in Minnesota’s 2024 general election involved vouching. Approximately 71% of those voters were already registered but needed to update a name or address.

That may show the system is rarely used. It does not answer whether the safeguards are sufficient.

Instead of attacking the messengers, election officials should demonstrate why the system is secure. They should release procedures, verification data and enforcement statistics.

O’Keefe and Higby should also release the complete, unedited recordings so the public can judge the encounters in context.

Transparency should apply to both sides.

CAIR has every right to condemn the stunt. Muslim Americans have every right to say they found it insulting. O’Keefe and Higby have the right to defend their work.

None of those opinions determines whether a crime occurred.

Evidence does.

America does not arrest people merely for exercising their First Amendment rights. Nor should journalists receive immunity if they commit provable crimes while gathering a story.

The constitutional line is straightforward: Investigate conduct when there is evidence of a specific offense, but never criminalize a person’s viewpoint, clothing, satire or criticism.

If Minnesota’s election system is secure, officials should prove it.

If a law was broken, prosecutors should name it and produce the evidence.

But “we were offended” is not a criminal charge in the United States of America.