First Amendment Blues

The article went on to quote Sarah Bardwell of Denver, a 21-year-old intern of American Friends Service Committee who was visited: “The message I took from it was that they were trying to intimidate us into not going to any protests, to let us know that,’hey, we’re watching you.’” The FBI interviewed dozens, and three St. Louis, Missouri men represented by the local American Civil Liberties Union (ACLU) said they were trailed by agents. An FBI spokeman explained, “We vetted down a list and went out and knocked on doors and had a laundry list of questions to ask about possible criminal behavior. No one was dragged from their homes and put under bright lights.” An April 2006 report by the FBI’s Office of the Inspector General dismissed the idea that the agency had done anything improper or encroached on people’s First Amendment rights.

Sometimes the pre-emptive policing tactics are a bit more immediate, as with the steelworkers trying to get to Miami. During the February 2003 anti-war demonstration on the east side of Manhattan, police detained people in unheated vehicles who were heading for the event, preventing them from attending, as a lawsuit by the New York Civil Liberties Union (NYCLU) demonstrated. Police set up a patchwork of crowded pens, then slowed people’s ability to enter them by searching bags, creating logjams in a demonstration that attracted at least 750,000; some frustrated people turned back and never made it to the rally.

One of the most frightening examples of pre-emptive policing involves the gathering of evidence from people merely because of their political opinions. Local police have stopped by activists’ homes requesting DNA for their files, and the NYPD detained hundreds of peaceful protestors for mass fingerprinting during the 2004 RNC. The NYPD only destroyed the fingerprints – which can legally be taken only from people charged with a violation and whose identity is in question – after the NYCLU sued.³

In Washington, D.C., a secret FBI intelligence unit and local police detained a group of protesters in town in April 2002 to demonstrate against the invasion of Iraq. Officers took them to a downtown parking garage where they were questioned on videotape about their political and religious beliefs as well as about protests they had attended and whom they spend time with.⁴ Police records reveal that the protesters were targeted because they were all wearing black clothing and were thus believed by police to be anarchists. In response to efforts by the activists’ lawyers at the DC-based Partnership for Civil Justice, the police expunged their arrest records. Still unresolved is their lawsuit charging that local and federal law enforcement violated the U.S. Constitution by singling out people for arrest based on their perceived political ideology, targeting people the government perceived by their clothing to be anarchists.

Although officers cannot legally collect purely political information unless they suspect criminal activity, this case shows agents doing exactly that.

The targeting of anti-war demonstrators goes well beyond this incident, as activists themselves have long known. Within the past two years, Freedom of Information Act suits and whistleblowers have documented spying on the pacifist Thomas Merton Center in Pittsburgh, on Oakland’s Direct Action to stop the war, on anti-war groups on the Santa Cruz and Berkeley campuses and scores more, plus the existence of a secret Pentagon database tracking 186 antiwar protests and hundreds of groups in 20 states.⁵

Police Tamper with Evidence

One of the most disturbing under-the-radar techniques used to impede free speech is police tampering with evidence in order to justify roundups of peaceful protestors. Once again, the NYPD is the leader in this area. During the 2004 Republican National Convention, police doctored video evidence to justify the unlawful arrests of peaceful bystanders and protesters, giving those altered tapes to defense attorneys and the courts, and engaging in perjury and evidence tampering. Alexander Dunlop was one person exonerated after it came out that the police had given his lawyer a video of his arrest during the RNC which had been edited to justify their claim that he had resisted.⁶ An unedited version clearly showed Dunlop asking a police officer for directions and that he was not involved with a nearby demonstration.

The extent to which such evidence tampering is occurring in police departments around the country is difficult to know. Had it not been for the volunteer-based group, I-Witness Video, the doctoring would likely not have been discovered. Over 200 I-Witness volunteers documented arrests and police activity at the protests, making sure that their video evidence would be usable, if needed, in later court proceedings. Working in alliance with legal observers from the National Lawyers Guild who monitored most of the RNC demonstrations, their videos helped vindicate several people who were falsely arrested on disorderly conduct charges, and were used in the defense of approximately 400 of the 1,806 people arrested during the Convention. Eileen Clancy was the I-Witness Video volunteer who discovered the tampering on Dunlop’s tape:

In addition to physical evidence proving video tampering, other examples of police perjury are now out in the open, thanks to litigation. At a February 2006 Critical Mass ride, NYPD assistant chief Bruce Smolka pulled graduate student and Guild Legal Observer Adrienne Wheeler off her bicycle, pinning her to the ground and causing several injuries. He did not identify himself as a police officer, nor did he ask her to stop her bicycle before hauling her to the ground. Police issued a traffic ticket to Wheeler, based on police testimony that she was riding the wrong way on a one-way street.

As was proven later in court, the officer who gave a sworn statement saying she personally say her riding the wrong way, had lied. In September 2006, a traffic court judge dismissed charges against Wheeler after NYPD Officer Alfred Ortiz admitted he gave false statements under oath. The National Lawyers Guild New York City Chapter provided videotapes of the incident to the Civilian Complaint Review Board (CCRB) in March showing clearly that Smolka did not identify himself as an officer nor issue any warning beforehand.

Infiltration and Provacateurs

Beyond police perjury, police infiltration and provocation continues to be a difficult-to-monitor constraint on free speech. Infiltration and provocation change the tone of protest by initiating violence falsely attributed to protesters. Using provocateurs, police can actually change the speech that political groups are trying to communicate.

Jim Dwyer of the New York Times drew on Clancy’s forensic video analysis to reveal police sparking confrontations by arresting police officers who were disguised as activists, both at the RNC and at Critical Mass bicycle events.⁸ Bystanders objected to the false arrests, and the police thus succeeded in creating a conflict and an unruly situation. As history has shown, during the McCarthy period and other moments in U.S. history, knowing that political activities could be under scrutiny can intimidate people and stop them from stepping forward with their political opinions. Yet infiltration has become widespread, at least in New York City and California, where the ACLU of Northern California catalogued numerous examples in a July 2006 report.⁹ In California, Camille Russell, a Fresno schoolteacher, discovered Peace Fresno was infiltrated while reading an obituary of a sheriff’s deputy killed in a motorcycle accident who was a member of the group under another name.¹⁰ Campus anti-war activists at Fresno State, a United Food and Commercial Workers at a labor rally protesting Safeway supermarkets in Contra Costa, and other activists have also stumbled over plainclothes or undercover officers at events.

In March 2007, Jim Dwyer of the New York Times broke the story of the secret surveillance going on, as New York City police detectives traveled the world to spy on and infiltrate groups that might attend RNC protests.¹¹ Recently released records show they were even interested in the FTAA protest where Miles Swanson was arrested.

Since 2003, New York police officers posed as activists and attended meetings of political, artistic, and church groups, made friends and exchanged email messages, and, during the RNC confrontations, reported daily with the NYPD Intelligence Division. They also spied on a city councilman, Sean Combs, Jay-Z, Alicia Keys, and other stars connected with the Hip Hop Voters Summit. The pages of intelligence reports – with many sections blacked out and unreadable – were only released this spring, leaving you wondering how they saw a threat in the comedy troupe Billionaires for Bush, or Brooklyn Parents for Peace.

The new chairman of the House Homeland Security Committee, Bennie Thompson, met with the NYPD in May 2007 to express his concern that police spying had violated civil liberties and gone into states and countries outside of its jurisdiction.¹² The New York Police Commissioner continues to say the RNC was his department’s finest hour, and continues to ignore a federal court order to release its intelligence records from that period in response to an NYCLU lawsuit.¹³

Weakening Old Limits on Surveillance

The NYPD widened its spying on political groups and people in 2003 despite a court ruling restricting its power to do so. It burst the bounds of limits placed on it by the courts following the exposure in the 1970s of decades of spying abuses, not just by cities but by the FBI’s COINTELPRO (counterintelligence program). Police departments across the country faced consent decrees – agreements to modify unconstitutional surveillance and other policies – that were diluted or dropped before but especially after 9/11 under Democratic and Republican administrations. Police returned to the bad old days, once again instilling a fear in people’s minds that their antiwar or other political activities are being watched.

Soon after September 11th, the NYPD asked U.S. District Court Judge Charles Haight to lift the guidelines for investigating religious, political or other “associational” activity set out in 1986 in the wake of the lawsuitHandschu v. Special Services Division.¹⁴ The settlement prohibited, among other things, creating files on groups or individuals based solely on their political, religious, sexual, or economic preference. It required police to submit a request for spying to a three-person panel and to show that the group or person had “criminal intent.” Haight agreed that the new threat of terrorism justified changing the consent decree – dropping the need to go to the panel or demonstrate criminal content – and he instructed the police instead to adopt guidelines modeled on new ones created by Bush’s Justice Department to govern the FBI’s political investigations. What that means legally has been in dispute in the courts since early 2004. Nonetheless, the police took the modified decree as an open door for widespread infiltration and surveillance of political groups.

Another longstanding consent decree – Chicago’s Alliance to End Repression Consent Decree, or the Red Squad federal consent decree – was modified in January 2001 after Chief Judge Richard A. Posner for the Seventh Circuit U.S. Court of Appeals wrote that it essentially left the police helpless to protect the public. Signed in 1981, the original agreement prohibited police from spying on or disrupting a political group unless it is engaging in criminal activity. Now police can spy on demonstrators as long as the intelligence gathering is documented and audited to monitor compliance with the court order. The police admit that they videotape demonstrations with the express purpose of identifying individual protesters for later action.

Denver, the location of the upcoming Democratic convention, has its own sordid history to tell. Its police were spying on the local Amnesty International chapter, American Friends Service Committee, and Chicano activists for years until it came out late in 2002 when someone leaked a printout of some of the records. Following an ACLU lawsuit, the Denver police agreed to purge their files and stop spying. Yet officials worked hard to save funding for Colorado’s “fusion center,” where Denver police, along with federal and state agents, sift through local and national intelligence and other information to find signs of terrorist threats. Even as local police go tocourt to remove themselves from judicial constraints over their spying, the feds poured millions of dollars to set up such intelligence centers outside of these courts’ jurisdiction from coast to coast.

Subpoenas as Intimidation

In the past eight years, we have seen authorities intimidating activists by issuing them subpoenas to appear before a grand jury. Environmental and animal rights activists but also anti-war activists have found themselves hauled before these chambers. The FBI has actually admitted that it uses both email monitoring and subpoenas to gather information on activists.

Here is only one example that hit close to home to one of the authors, who is executive director of the National Lawyers Guild. In October 2003, the NLG received word from a member in Des Moines, Iowa that local authorities had told her that her e-mail was likely being monitored. On February 3, 2004 that same member, Sally Frank, a law professor and an advisor to the Guild chapter at Drake University, called to say that the authorities had issued subpoenas for four antiwar protesters in Des Moines to appear before a grand jury. Federal prosecutors also subpoenaed Drake University for records of its National Lawyers Guild chapter, including names of officers, information relating to an antiwar training in November 2003 entitled “Stop the Occupation! Bring the Iowa Guard Home,” and reports dating back two years. The government also issued a gag order on employees of the University. These actions puzzled the locals, mobilized the Guild, and quickly attracted national attention, because they seemed to target individuals based on their political activity. After the U.S. Attorney’s Office took the unusual step of issuing a statement confirming its investigation, the Guild won its motion to quash the subpoena on First Amendment grounds.

Preparing for 2008

Long drawn out lawsuits to defend civil liberties may be victorious, eventually, but rarely soon enough to allow the people to have their say, when they want to say it. So lawyers are working with activists to prepare ahead of time for possible police responses to the next party conventions.

In St. Paul and Denver, Guild and ACLU lawyers are already negotiating with public officials to prevent demonstrators from being channeled into cramped, fenced off “free speech zones” distant from events. As one lawyer reported, “In a free society, a security zone that corrals all dissenting voices and treats us all like criminals cannot substitute for true law enforcement…responding to specific articulable facts that amount to reasonable suspicion that a crime is being committed.” From previous experience, the lawyers have learned to go to court as soon as a so-called free speech zone is proposed.

“In the past, federal judges have expressed concern over the legality of restrictive protest zones but claimed it was too late for them to do anything about it. We have to seek relief sooner,” says NLG member Thomas Cincotta of the law firm Kurtz & Peckham. “But how do you ask a court to enjoin a protest zone that hasn’t even been put in place? We must make the case that these restrictive plans are in place now, despite the government’s refusal to disclose them to us.”

In both cities, the permitting process is being manipulated by authorities. The Twin Cities NLG is prepared for any quick rules change; for instance St. Paul may refuse to even consider demonstration permits until six months before the event, and civil liberties lawyers are prepared to sue. Denver embarked on a review of its permitting policy, and then suspended an application deadline for a permit, saying it had not yet finished its review.

Denver is following New York in its refusal to issue summons to protestors who break the law committing civil disobedience, rather than arrest them. The City Attorney recently enacted a policy of no “cite and release” for protestors, which allows them to be detained and indeed punishes them for exercising their free speech rights. The city already used it at an October Columbus Day protest, where police arrested 83 people and held them overnight although they posted cash bond. And to transmit the idea that these demonstrators were dangerous, police, like those in Miami, New York, and indeed at a November anti-war protest in Seattle, appeared armed in full riot gear. In Seattle, the police brought tanks.

Stonewalling by officialdom has already begun, despite regular meetings. In Denver, says Cincotta, “My frustration… stems from the lack of true dialog concerning security preparations for the DNC. Information-sharing has been a one-way street.” As we’ve seen in New York at the RNC, an incommunicative police force violates laws in their mistreatment of demonstrators, secure that any redress will come long after the event. For citizen’s free expression, the damage will be done.

None of these threats to free speech and the First Amendment could take root without the President of the United States setting the standard. The decision by George W. Bush to authorize warrantless spying on Americans stands as the supreme example of government disregard for the First and Fourth Amendments.