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Protestor Privacy and Free Expression Rights

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Introduction to Protestor Privacy

The United States has a distinctive history of protest, which has helped to shape many of the values we hold today. The Independence movement, the Women's Suffrage movement, and the Civil Rights movement all gained strength through various forms of protest.

The First Amendment to the United States Constitution preserves free expression and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." These rights are necessary to ensure the effective functioning of democracy. Today, as protest continues to play a vital role in the social and political landscape of the United States, the right is endangered by a "system of public surveillance," particularly in Nation's capital.

The Right to Protest Threatened

A Pattern of Increasing Surveillance

Following the September 11, 2001 attacks, U.S. policymakers and security forces implemented video surveillance, relying upon claims that the technology would protect against terrorism and improve security. In public places across Washington D.C., the number of surveillance cameras steadily increased. A response to a Freedom of Information Act, made to the United States Park Police by EPIC, revealed that public demonstrations and protests are indeed being monitored. Specifically, the documents affirmed government monitoring of the following activities:

Surveillance logs maintained by the Park Police reveal that the aerial camera used to conduct surveillance was mainly targeting public protests. The increasing implementation of inconspicuous, often hidden street cameras will facilitate surveillance of protest activity. Such surveillance severely jeopardizes the First Amendment freedoms guaranteed to public protestors by the United States Constitution.

Restricting the First Amendment Freedom of Expression

Government surveillance of public protests chills the exercise of the First Amendment freedoms of speech, assembly, and association. The great potential of negative consequences from surveillance deter protestors from expressing their political views, a right that is the basis of any democratic society. Images obtained by police during protests may be used for retailiation against individuals for their political views.

In the political climate following September 11, government officials have increased use surveillance mechanisms within homes and libraries in order to distinguish possible terrorists. The threat that surveillance records of protests will be used in a similar manner is a significant deterrent of expressive conduct. At a time when dissent with the government is often perceived as lack of patriotism, the presence of surveillance technologies during protests is likely to inhibits protestors from exercising their constitutional rights.

As civil liberties groups continue to seek information on the number and use of the cameras used to monitor protestors, the exact of consequences of government surveillance on protest activity cannot be immediately determined. However, we need only look to history in order to determine the negative effects of surveillance on the right to protest.

A Lesson from History: The Civil Rights Movement

Important social movements throughout this nation's history have been subject to government monitoring. For example, during the Civil Rights movement, protestors faced government attempts to intimidate and suppress. In NAACP v. Alabama, the Supreme Court held that compelling disclosure of membership lists of the of the National Association for the Advancement of Colored People of Alabama would violate members' First Amendment freedom of association rights.357 U.S. 449 (1958). The Court recognized the direct link between associational privacy and the preservation of the freedom of association.

Two years later, the Court again affirmed the rights of association and expression in Talley v. California. 362 U.S. 60 (1960). In that case, a city ordinance barred distribution of any hand-bill that did not include the names and addresses of the people who prepared, distributed, or sponsored them. The Court reversed the lower court's guilty finding for violation of the ordinance, noting that there are times and circumstances when states cannot compel members of groups engaged in the dissemination of ideas to be publicly identified because identification and fear of reprisal might deter peaceful discussions of important public matters.

Throughout the Civil Rights movement, the FBI monitored key leaders of the campaign, engaging in coercive tactics. An ACLU Report, released in January 2002, documents the "illegal harassment and surveillance" of Dr. Martin Luther King and other Civil Rights leaders. FBI abuses and targeting of dissident groups and individuals during the Civil Rights movement became the topic of Congressional hearings, which eventually resulted in guidelines regulating FBI surveillance activity. These guidelines establish that political dissent cannot be the sole basis for FBI surveillance and investigation. The Dangers of Domestic Spying by Federal Law Enforcement, ACLU Report (January 2002).

Applicable Constitutional Law

The current rule, reiterated in a recent U.S. Court of Appeals decision, provides that in public forums, government restrictions must be limited to time, place, and manner regulations that are not based on the content of the speech and that are necessary to further a significant governmental interest. Lederman v. United States of America, 351 U.S. App. D.C. 386 (2002). In that case, the court held that a ban on demonstration activity on the public grounds of the United States Capitol was unconstitutional because less restrictive methods to promote safety were available to the government.

Although government surveillance of protestor activity does not constitute a direct ban on the protected activity, surveillance deters protestors nonetheless. The chilling effect of protestor surveillance implicates the freedoms of speech, assembly, and association guaranteed by the First Amendment. Essentially, surveillance of protestors is a means of compelling disclosure of the identities of such individuals.

In Gibson v. Florida Legislative Investigation Committee, the Supreme Court stated that the petitioner's First Amendment rights included protection of privacy of association in organizations such as the NAACP. 372 U.S. 539 (1963). The Court further recognized the "deterrent and 'chilling' effect" of membership disclosure requirements on the free exercise of the constitutional rights of free speech, expression, and association.

Compelled disclosure through surveillance cameras is more even more pervasive than that at issue during the Civil Rights movement. Until camera surveillance of protests is ceased and strict safeguards implemented, the freedom of expression of protestors will remain at risk.

News Related to Protestor Privacy

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Cases Relevant to Protestor Privacy