Policing Political Speech or Just Sex Under the Magnolia Tree?

In response to local Occupy protests, Tennessee Safety Commissioner Bill Gibbons said in October that “we don’t have the resources to go out and, in effect, babysit protesters.” But as the Nashville Scene recently reported, that’s exactly what police officers did — and they did so while undercover.

According to the Scene, which received the officers' correspondence from the Tennessee Department of Safety and Homeland Security, state troopers covertly infiltrated the Occupy Nashville encampment for about a month and emailed their observations to superiors.

The Scene’s Jonathan Meador wrote that while the emails show "troopers repeatedly comment[ed] on the peaceful and friendly nature of the protesters" at the start, by Oct. 25 the state government was far more focused on, shall we say, bodily functions. Wrote State Capitol Facility Administrator David Carpenter, quoting an unnamed legislative staff member:

"There is an orgy going on out on the plaza. Celeste just saw a girl give a guy a ——job [sic] right in front of her window. She banged on the window and they just looked at her and kept going. The smokers are saying the smell of urine is so strong out on the WMB plaza that it's unbearable. These people have been smoking pot, defecating and urinating all over the place and from what we understand out security has it's [sic] hands tied...."

The reconnaissance mission turned into a daily log of citations for public urination, sanitation offenses, and what Connie Ridley, director for the Office of Legislative Administration, called one couple's “inappropriate relations behind the magnolia trees.”

Such intelligence gathering is a far cry from that of communist-era Red Squads and the methods of these troopers appear to be on the right side of the law. Still, with the proliferation of Occupy protests, covert government surveillance of political assemblies may be spreading. It’s happening in Nashville, New York, Oakland and presumably other major cities. It’s taking the form of undercover agents, unmarked police cars and attempts to access secure chat rooms.

Apparently undercover police are easy to spot, so why the concern? Because when it comes to the surveillance of First Amendment protected activity, this country has a troubled past. It seems the more power given to law enforcement, the more likely it is to exceed that authority. Known government surveillance of political activity peaked in the mid-1950s with the creation of an FBI program called COINTELPRO, an acronym for Counter Intelligence Program. This program intended to disrupt domestic political organizations through covert and often illegal surveillance. Targets included anti-war and civil rights groups. After documents describing the COINTELPRO operations became public, a U.S. Senate committee convened to investigate. In its 1976 final report, it found that:

"[t]he Government, operating primarily through secret informants, but also using other intrusive techniques such as wiretaps, microphone "bugs", surreptitious mail opening, and break-ins, has swept in vast amounts of information about the personal lives, views, and associations of American citizens... The Constitutional system of checks and balances has not adequately controlled intelligence activities."

Following the investigation into COINTELPRO, several important court decisions led to the overhaul of how major city police departments gathered information. Many of these departments agreed to strictly limit or prohibit outright the investigation of political activity. The New York City Police Department, for example, agreed not to investigate political and religious groups unless they had “specific information” that the organization had committed or was about to commit a crime. See Handschu v. Special Services Div., 605 F.Supp. 1384 (S.D.N.Y. 1985). In contrast, the U.S. Supreme Court found in Laird v. Tatum, 408 U.S. 1 (1972), that the undercover surveillance of political activity alone did not violate the federal constitution. The claim that First Amendment rights are chilled by covert data-gathering lacked ripeness in absence of objective harm or threat of specific future harm. Id. So, these decrees tied the overreaching hands of law enforcement in ways the federal constitution did not.

After 9/11, the decrees changed, or at least weakened. Various courts whittled away the protections granted in the agreements. New York police, for example, no longer needed “specific information” but instead could begin an investigation on facts that “reasonably indicate” a future crime. The repercussions spread quickly in that state where police began to pose as activists and sympathizers of various infiltrated groups. Perhaps most publicized is the NYPD’s collection of data on those planning to protest at the 2004 Republican National Convention in New York City.  According to an August 2010 report by the American Civil Liberties Union, many other states engaged in similar tactics.

“United States law enforcement agencies, from the FBI to local police, have a long history of spying on American citizens and infiltrating or otherwise obstructing political activist groups,” according to the report. “Unfortunately, it appears that these old tendencies have once again come to the fore. Law enforcement agencies across America continue to monitor and harass groups and individuals for doing little more than peacefully exercising their First Amendment rights.”

The ACLU detailed cases in 33 states and the District of Columbia where “Americans have been put under surveillance or harassed by the police just for deciding to organize, march, protest, espouse unusual viewpoints, and engage in normal, innocuous behaviors such as writing notes or taking photographs in public.” The concern in these cases is best explained by Justice Douglas in his dissent in Laird.

"The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance." Laird, 408 U.S. at 29

Unfortunately, this was the losing argument. While some are lobbying to ban the practice, police seem able to monitor First Amendment protected activity with impunity. Under Laird, there is no chilling effect. That doesn’t necessarily mean, however, that those speakers are prohibited from reviewing the surveillance of them. If a protestor cannot stop police from taking notes, a current lawsuit in Massachusetts may at least help that protestor find out what’s being written.

The plaintiffs in ACLU v. Davis seek the disclosure of information about the Boston Police Department’s surveillance operations, including its monitoring of political activities. The ACLU of Massachusetts and the local National Lawyers Guild filed the complaint in August under the state’s public record law and on behalf of several political groups and activists, separate from the Occupy movement.

“We brought this suit because we believe the public should know what information is being collected about political activities, how it is being used, and what policies — if any — are in place to protect privacy and individual liberty,” according to the ACLU. “When police become agents of surveillance, keeping track of political activities, there is a chilling effect on people’s ability to express their political views in public.”

If Justice Douglas's dissent in Laird is to be believed, an ACLU win in Davis and a more transparent view of government surveillance will help keep speech from being chilled. The spying of those practicing their First Amendment freedoms becomes more palatable if the public knows what is being recorded — or in Nashville, knows that the undercover police are focused more on the magnolia tree than the podium.

Justin graduated from Suffolk University Law School in 2011. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Image of "saucer magnolia tree" used and modified courtesy of Flickr user a_soft_world under a Creative Commons BY NC 2.0 license.)


Subject Area: