Protestor Privacy and Free Expression Rights
- Screening of Protesters Ruled Unconstitutional.Every year protesters gather to protest the training of the School of the Americas. After the attacks of September 11th, 2001, authorities have required that they pass through metal detectors. On October 15th, however, a three-judge panel of the US Court of Appeals for the 11th Circuit ruled unanimously that the screening of these protesters is unconstitutional. The Washington Post reportsthat authorities had argued that screening of protesters was necessary due to fears of a terrorist attack which the judges found to be an insufficient reason for the search. "We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over," Judge Gerald Tjoflat wrote for the panel. "Sept. 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country." Protesters gathering next month will have the right to free speech with out first having to be screened. (October 17, 2004)
- New York City Sued for Right to Protest.The New York Civil Liberties Union and the Center for Constitutional Rights have filed a lawsuitto protect the rights of protesters of the Republican National Convention in New York City. The groups are sued on behalf of United for Peace and Justice, who has been trying for months to secure a permit for a protest rally in Central Park on August 29th. Despite months of protracted negotiations, the City recently denied the request on the grounds that it would harm the grass and now excuses their position to security precautions. (August 19, 2004)
- New York's Mayor Bloomberg Defines Peaceful Protest.The New York City Mayor's Office has devised a program to reward what the Mayor describes as "peaceful protesters" of the Republican National Convention in New York City. Buttons displaying the Statue of Liberty holding a sign that reads, "peaceful political activists" will be distributed which will entitle a "peaceful" RNC protester to discounts at NY restaurants and museums. But as Bloomberg lamented, "Unfortunately, we can't stop an anarchist from getting a button," he displayed a lack of differentiation between a protester of a certain ideology and a protester who has commited an act of violence. Rather than being the opposite of a protester engaging in violence, Bloomberg's "peaceful protesters" are anyone who doesn't break Bloomberg's rules for the RNC. Of those who won't be lucky enough to sport the "peaceful protester" button: women from Code Pink already arrested for (peacefully) dangling a 40-foot-long banner from a ninth-floor window across from Mr. Bloomberg's news conference; and an expected 250,000 people who will be protesting (most of which peacefully) with United for Peace and Justice in Central Park on August 29, as Bloomberg has repeatedly refused them the right to protest in the park. (August 19, 2004)
- FBI Visits Homes of 'Likely' Protesters of Political National Conventions.The Rocky Mountain Newsreports that FBI officers dropped by the homes of at least two young Denver citizens who had previously been involved in peaceful protests saying they were "doing some preventative measures and investigating." One of the recipients of the housecall, a 21-year-old, said the officers asked three questions: "Are you planning to be involved in any criminal acts at the national conventions? Do you know anybody who is? Are you aware that if you assist or know anybody planning any criminal acts and do not report them, it's a crime?" The FBI officers were from the Joint Terrorism Task Force. (August 15, 2004)
- Right of Public Demonstration Reaffirmed in Georgia.Martha Burk and others protesting the Augusta National Golf Club's all-male membership policy had been banned from demonstrating within 700 yards of the tournament in accordance with an Augusta ordinance. However, an appeals court has ruledthat ordinance unconstitutional, which will enable the demonstrators to gather in the future without being discriminated against based on the content of their speech. This 2-1 decision by a federal appeals court affects more than just golf tournament protests, but also the G8 demonstrations scheduled to take place in Georgia in June. (April 19, 2004)
- DC Council Report Recommends Restrictions on Police Surveillance of Protesters.The D.C. Council's Judiciary Committee approved a report recommending legislation to restrict Metropolitan Police Department surveillance of political organizations and preemptive arrests of protesters. The committee's Report on Investigation of the Metropolitan Police Department's Policy and Practice in Handling Demonstrations in the District of Columbiafound the MPD repeatedly violated its own rules for handling demonstrations including crowd control and mass arrests. The nine month investigation also found the MPD used undercover officers to infiltrate political groups in the absence of criminal activity and Police Chief Ramsey misrepresented his own role in the September 2002 mass arrests at Pershing Park. According to the Council report, the department failed to discipline officers for misconduct, including a plain-clothes detective who chased onlookers with pepper spray during the 2001 Inaugural parade and was exonerated of wrongdoing by both MPD and the U.S. Attorney's office. Speaking to the Washington Post, Chairwoman Patterson said the Mayor needs to turn the police department "away from spying on our residents and away from arresting people because of their political views." (March 12, 2004)
- Officials Question DC Police Handling of Political Demonstrations.The D.C. Council Judiciary Committee is investigating police practices in a two day hearing, "Current Policies and Practices of the Metropolitan Police Department Related to Demonstrations within the District." According to U.S. District Judge Gladys Kessler, "The District of Columbia... seems to be admitting that it maintains widespread, extensive spying operations on the activities and operations of political advocacy organizations... on the basis of their political philosophies and conduct protected under the First Amendment... even in the absence of allegations of criminal activities by the organizations being spied upon." The Washington Post reportsthat Judge Kessler upheld a court order requiring D.C. Police to disclose the identities of undercover officers who had infiltrated organizations exercising their right to free speech and assembly. Now the District Council Judiciary Committee is examining the intelligence-gathering activities, pre-emptive actions to prevent public assembly, mass arrests and detentions, and excessive use of force. EPIC has drafted a lettersupporting these efforts and urging the Council to include in its examination, police use of surveillance in the Nation's Capital. (Dec 17, 2003)
- California Issues New Intelligence-Gathering Guidelines.The California Attorney General's Office recently distributed Guidelines advising local police to observe stricter state limits than those of federal agencies when it comes to spying on the public. The guidelines, entitled "Criminal Intelligence Systems: A California Perspective," were prompted by law enforcement responses to antiwar protests. According to the Boston Globe, in Fresno, a sheriff's deputy serving on an antiterrorist detail posed as a peace activist. In San Francisco, police apologized for videotaping antiwar protesters without first getting the required clearance. In Oakland, there were violent clashes between protesters and police in the early weeks of the Iraq war. The new Guidelines emphasize the importance of boundaries and oversight in the pursuit of both security and protection of Constitutional rights. They state: "Put bluntly, it is a mistake of constitutional dimension to gather information for a criminal intelligence file where there is no reasonable suspicion" of criminal activity. (Nov 30, 2003)
- FTAA Protesters Confront Terrorizing Security Measures in Miami. At demonstrations in Miami organized to protest the Free Trade Area of the Americas, protesters were prevented from joining permitted marches, jailed and attacked with violent force. According to reporter Jeremy Scahill, the Miami a police force looked and acted more like a paramilitary group. "Thousands of soldiers, dressed in khaki uniforms with full black body armor and gas masks, marching in unison through the streets, banging batons against their shields, chanting, "back back back." There were armored personnel carriers and helicopters. The forces fired indiscriminately into crowds of unarmed protesters. Scores of people were hit with skin-piercing rubber bullets; thousands were gassed with an array of chemicals. On several occasions, police fired loud concussion grenades into the crowds. Police shocked people with electric tazers. Demonstrators were shot in the back as they retreated. One young guy's apparent crime was holding his fingers in a peace sign in front of the troops. They shot him multiple times, including once in the stomach at point blank range." Scahill was a rare reporter not embedded with the police. Most reporters were. Many journalists who had not accepted roles as police-representatives were stopped from filming the police violence and arrested. It might not be surprising that the police treated the protesters like terrorists, as the line between political demonstration and terrorism is blurring. The $8.5-million used to fund the police security measures came out of the $87-billion supposed to fight terrorism in Iraq. Chilling accounts from protesters themselves can be found at the Indymediasite as well as the Stop the FTAAsite. (Nov 26, 2003)
- FBI Collecting Information on Antiwar Demonstrators.According to the New York Times, a confidential memorandum sent by the FBI to local law-enforcement agencies last month revealed the FBI is collecting extensive information on the tactics, training and organization of antiwar demonstrators. Sent in advance of antiwar demonstrations in Washington, DC and San Francisico, the Bureau's memorandum advised local law-enforcement officials to report any suspicious activity at protests to its counterterrorism squads. Though the FBI stated it was "not concerned with individuals who are exercising their constitutional rights," they are collecting information on both legal and illegal activities. Even if the FBI does not focus significant attention on law-abiding protesters, their investigative efforts involving collection of data on legal activity can have a chilling effect on the political speech of all who take part. (Nov 24, 2003)
- Police Sued for Tactics Used at Protests.The New York Civil Liberties Union has announcedplans to sue the Police Department in an effort to bar officers from using certain tactics to control large protests. The group plans to file three lawsuits challenging five tactics violating protesters' legal rights used at large demonstrations, specifically the antiwar rally in Manhattan last February. The tactics include the use of mounted police officers to charge and injure protesters and barricades to restrict access to demonstration sites while failing to provide information about alternative means of access. The suits will also cite the department's use of interlocking metal barricades, or pens, in which protesters say they were trapped during the demonstration; and widespread searches, which the group says were conducted without justification. Protesters also report being detained by police for many hours in vans without access to bathrooms or food after arresting them on minor charges. (Nov 21, 2003)
- US Officials Silent British Protesters.When George W. Bush visits London next week, U.S. officials will keep protesters out of sight by demanding a rolling "exclusion zone" around the President. According to the Independent, the Stop The War Coalition reports being told by the police that protesters would not be allowed to demonstrate in Parliament Square and Whitehall next Thursday. The coalition says that it has also been told by British officials that the distance between Bush and protesters is desired both for security reasons and to prevent their appearance in the same television shots. The exclusion zone can be enforced under Sessional Orders if Parliament is in session, though not always used. One MP told the Independent that "the Metropolitan police are having to cope with a hidden hand which stretches from Washington via Downing Street." While a police source noted they "don't want to stop the public from exercising their legitimate right to protest," another MP said that the police are under pressure from the American officials, and the losers appear to be people of Britain who want to show their opposition to the Iraq war." (Nov 12, 2003)
- Police Record and Log Videos of Peace Demonstrators.Chilling effects on First Amendment rights are of concern to many upon realizing that the police are videotaping protestersoutside of President Bush's fundraisers. Police records show that officers fill out a "daily protest report" for every demonstration. The reports, filed by the department's Intelligence Division, list the names of anyone arrested, the types of signs observed and the media outlets in attendance. Some list the types of vehicles driven by protesters and their license plate numbers. On each form, officers must check a box indicating whether the event was videotaped. If it was not, they must explain why. (Oct 2, 2003)
- Secret Service Accused of Keeping Bush Protesters Away.The American Civil Liberties Union has filed a lawsuitagainst the Secret Service on behalf of four advocacy groups who allege discrimination between the treatment of supporters and protesters of President Bush. The ACLU asked the federal courts to prevent the U.S. Secret Service from keeping anti-Bush protesters far away from presidential appearances while allowing supporters to display their messages up close. According to the lawsuit, protesters in cities across the United States are being forced to assemble in "protest zones" blocks away from where the president or vice president was speaking (and blocks away from the media), while supporters of the administration's policy are allowed to hold their signs up in front of the building. (Sept 23, 2003)
- Protestor Database Being Destroyed.A databasethat contains information on hundreds of anti-war protestors is being destroyed by New York Police Department. Detectives apparently questioned anti-war protestors about their political activities and noted information such as where demonstrators attended school and their past involvement in protests. Police Commissioner Ray Kelly stated that he was not aware that the information was being gathered and that such a practice will not be implemented in the future without top officials' approval. (Apr 11, 2003)
- Activists Protest Police Cameras.City police videotaped a demonstrationin Portland, Maine. One week later, a state police trooper took pictures of demonstrators protesting House Minority Leader Richard Gephardt's appearance at a rally in Lewiston, Maine. The Maine Civil Liberties Union (MCLU) executive director stated that people have a right to engage in anonymous political activity and "that the police monitoring who is at a rally could very much chill people's exercise of the First Amendment free speech rights." (Oct 21, 2002)
- Police to Use Cameras to Monitor D.C. Demonstrations.The Metropolitan Police Department announcedplans to use automated surveillance cameras to monitor large demonstrations planned in the nation's capital in January 2003. Specifically, the cameras were intended to monitor anti-war protests and the "March for Life," an anti-abortion demonstration marking the 30th anniversary of Roe v. Wade, the Supreme Court decision legalizing abortion. City officials cited logistical concerns for the measure. However, ACLU officials were concerned that cameras will deter the expression of First Amendment rights to freedom of speech, association and assembly. (Dec 23, 2002)
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.
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:
- On January 22, 2002, the Park Police and the FBI conducted aerial surveillance of the pro-life demonstration at the Supreme Court.
- On April 20, 2002, the Metropolitan Police Department (MPD) recorded demonstration activity at Connecticut and Florida in Washington, DC.
- On April 22, 2002, the United States Park Police conducted aerial surveillance of demonstrators in Washington, DC.
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.
- Spotlight on the Cops, Washington Post, December 17, 2003.
- This is Not America, of "Lost Liberties" series, Salon.com, December 16, 2003.
- New Surveillance Guidelines Fuel Debate in California, Boston Globe, November 30, 2003.
- The Miami Model, ZMag, November 25, 2003.
- FBI Scrutinizes Anti-War Rallies, New York Times, November 24, 2003.
- Police video ready to roll again for Bush protests, Milwaukee Journal Sentinel, October 2, 2003.
- ACLU says Secret Service keeps Anti-Bush Protesters Away, San Francisco Chronicle, September 23, 2003.
- Inside the Capitol, The Oregonian, March 24, 2003.
- Federal Court May Broaden NYPD's Spying Powers, Associated Press, February 14, 2003.
- Anti-war Activists Planning Mass Demonstrations if U.S. Attacks Iraq, Associated Press, December 24, 2002.
- Police to Use Cameras to Monitor D.C. Demonstrations, Associated Press, December 23, 2002.
- ACLU, Other Groups Seek Information about Government Surveillance, Associated Press, October 25, 2002.
- Activists Protest Police Cameras, Kennebec Journal & Morning Sentinel, October 21, 2002.
- ACLU, NAACP Oppose Police Cameras, Washington Times, June 14, 2002.
- Candid Cameras: Activists, Unions, and the ACLU Question Worcester Cops'Practice of Photographing Peaceful Demonstrators, Boston Phoenix, March 28-April 4, 2002.
- What's Wrong with Public Video Surveillance? , American Civil Liberties Union (ACLU) Feature.
- Jay Stanley & Barry Steinhardt, Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society , ACLU (January 2003).
- The Dangers of Domestic Spying by Federal Law Enforcement: A Case Study on FBI Surveillance of Dr. Martin Luther King , ACLU Washington National Office (January 2002).
- David Hudson, The First Amendment: A Wartime Casualty? , The Freedom Forum (February 2002).
- EPIC's Video Surveillance Web site
- EPIC's Observing Surveillance Web site
- First Amendment Center's Civil Rights & First Amendment Web site
- First Amendment Center's Freedom of Association Web site
- Gary T. Marx, Technology and Social Control: The Search for the Illusive Silver Bullet , International Encyclopedia of the Social and Behavioral Sciences (2001).
- Lederman v. United States of America, 351 U.S. App. D.C. 386 (2002). The court held that a demonstration ban, which restricted demonstration activity on Capital Grounds was unconstitutional. The court further held that the government's ability to restrict expressive conduct on the sidewalk area part of the Capital Grounds, a public forum, was limited to content-neutral, narrowly tailored, time, place, and manner regulations.
- Reno v. ACLU, 521 U.S. 844 (1997). The court held that the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. ³223, violated the First Amendment. The court reasoned that the CDA's vague provisions chilled free speech because individuals could not be certain if their speech was prohibited. The court also stated that because the CDA regulated a fundamental freedom, it must be narrowly tailored.
- Laird v. Tatum, 408 U.S. 1 (1972). Plaintiffs argued that army surveillance of their political activity had a chilling effect on the exercise of their First Amendment rights. The Court found that allegations of a subjective chill (the mere existence of the Army's data-gathering system) were not sufficient and that relief required a present objective harm or a threat of a specific future harm.
- Gibson v. Florida Legislative Investigative Committee, 372 U.S. 539 (1963). Petitioner was found guilty of contempt for failure to provide the State with an NAACP membership list. The court held that membership lists were not within the State's power of discovery. The court recognized that the challenged privacy was that of persons holding unpopular beliefs and thus, the deterrent and "chilling" effect on the free exercise of the rights of free speech, expression, and association was more substantial.
- Talley v. California, 362 U.S. 60 (1960). 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.
- NAACP v. Alabama, 357 U.S. 449 (1958). The State issued a civil contempt order against the National Association for the Advancement of Colored People (NAACP) when it refused to provide the State with the names and addresses of all the Alabama members of the organization. The Supreme Court held that compelling the disclosure of membership lists would have a deterrent effect on the members' First Amendment freedom of association rights.
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Communications Law and Policy
Jerry Kang and Alan Butler