Pete Hegseth Crossed a Clear, Bright Line. Will He Pay a Price?

But an even deeper problem lies beneath the surface. Modern First Amendment law recognizes that the government can violate the Constitution not only by prosecuting speech but by investigating it. Investigations impose stigma, chill future expression, and signal that certain viewpoints will draw state scrutiny. That is why the Supreme Court in the 1957 case Watkins v. United States cautioned that investigative power is “not unlimited,” and it’s why courts have scrutinized government surveillance and information gathering directed at political or religious advocacy even absent prosecutions.

When a government faces credible allegations of unlawful force and responds not with transparency but with investigations into those who restated the law, something fundamental has gone wrong. Indeed, it’s apparent that’s the reason for the FBI visits. The “evidence” of sedition, such as it is, is the tape itself; the visits chiefly carry the administration’s message of intimidation.

And it’s an all too familiar—and invariably regretted—story in American constitutional life. From World War I sedition prosecutions to McCarthy-era investigations to parts of the post-9/11 surveillance apparatus, some of the country’s worst civil liberties violations began with the assumption that dissent was a threat. In nearly every case, the government insisted at the time that extraordinary circumstances justified extraordinary measures. In nearly every case, history delivered a harsher verdict.