No. 22-3510 ___________________________

Michael J. Lindell; MyPillow, Inc.

Plaintiffs - Appellants

v. United States of America; Merrick B. Garland, in his official capacity as Attorney General of the United States; United States Attorney, for the District of Minnesota; Christopher Wray, in his official capacity as Director of the Federal Bureau of Investigation

Defendants - Appellees ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: June 14, 2023 Filed: September 22, 2023 ____________ Before LOKEN, COLLOTON, and ERICKSON, Circuit Judges. ____________ ERICKSON, Circuit Judge.

MyPillow, Inc. and Chief Executive Officer Michael Lindell (collectively, “Lindell”) appeal the district court’s denial of their motions for a preliminary injunction and for the return of property—Lindell’s cell phone that was seized by federal agents on September 13, 2022. The basis of Lindell’s action arises from an ongoing federal investigation into the individuals responsible for publishing forensic images of election software used in the 2020 election in Mesa County, Colorado. No charges have been filed. He argues on appeal that the federal investigation violates his First Amendment rights of freedom of speech, freedom of association, freedom of the press, and the right to petition for the redress of grievances. He also contends the search warrant for his phone violates the Fourth Amendment’s prohibition against general warrants. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. I. BACKGROUND

Lindell utilizes various media platforms to advance his theories of election fraud occurring during the 2020 presidential election. More specifically, in spring 2021, the Colorado Secretary of State directed local election officials to install a software upgrade on election machine servers. Lindell believes these upgrades unlawfully deleted unauthorized software used in the 2020 and 2021 elections in Mesa County. See 52 U.S.C. § 20701 (mandating the preservation of election data for 22 months after an election). Before and after the upgrade, a forensic image was made of the election management system servers. The forensic images were made public without authorization, which caused the Colorado Secretary of State to initiate an investigation into the individuals responsible for the security breach.

Meanwhile, the federal government commenced its own investigation into the security breach. According to Lindell’s complaint, the investigation thus far has included residential searches by Federal Bureau of Investigation (“FBI”) agents of several individuals suspected of making and publishing the forensic images. Another facet of the investigation—the subject of this litigation—involved FBI agents serving Lindell with a search and seizure warrant for his cell phone. Lindell’s 18-page complaint brought against the United States, the United States Attorney General, the United States Attorney for the District of Minnesota, and the Director of the FBI challenges the issuance and execution of the search warrant for his cell phone as violating his constitutional rights. For relief, Lindell seeks: (1) a

-2- declaration that the defendants’ actions violated his First, Fourth, and Fifth Amendment rights; (2) a determination that the warrant is invalid; (3) an order requiring the return of his cell phone pursuant to Federal Rule of Criminal Procedure 41(g