Picketers, Protesters, and Police
The First Amendment and Investigative Activity
By Carl A. Benoit, J.D.
Americans not only cherish the fundamental rights of religion, speech, press, assembly, and petition guaranteed by the First Amendment to the U.S. Constitution but regularly exercise these rights. Searching the headlines of any major newspaper or watching the evening news regularly uncovers stories about protests, pickets, or demonstrations that can surround religious, political, social, or economic issues and include people from all segments of society.
They involve war protestors, death penalty protestors, persons participating in labor disputes, and political protestors and take the form of marches, rallies, and boycotts. And, in the year of a general presidential election, political rallies and conventions seem to take center stage, where candidates, supporters, and opponents seek to express their own messages.
The United States’ national commitment to the freedom of speech is so strong that its laws protect speech even when a majority of citizens finds it offensive. That is why, for instance, protestors can burn American flags at demonstrations or church members can picket outside military funerals holding signs that many people believe contain deplorable messages.1 While the First Amendment provides a wide zone of protection for individuals who convey these messages, the protections are not absolute. Under certain circumstances, protected First Amendment activity still may generate legitimate law enforcement attention. Many times, this police activity is not controversial or, even, newsworthy. For instance, the public expects a police presence to maintain order and ensure safety at a protest or march. However, on occasion, law enforcement officers take additional steps by conducting surveillance on groups of protestors, collecting information or intelligence about protestors, or commencing an investigation directed at members of a group. Although, in many situations, these law enforcement activities may be permissible, they carry the potential to raise important constitutional and public concerns to which law enforcement agencies should be sensitive.
The challenge to those who have sworn to uphold the law is in finding the proper balance between using investigative techniques to protect the public from harm while not unlawfully interfering with the exercise of constitutionally protected rights. In a 2008 congressional hearing before the Senate Intelligence Committee, then FBI General Counsel Valerie Caproni made the following statement regarding this common law enforcement dilemma:
The FBI has the responsibility of protecting the country from national security and criminal threats while upholding the Constitution.We fail as an agency if we safeguard the country from terrorism but sacrifice the privacy and civil liberties that make us the country we are today.2
Striking the proper balance means determining when and under what circumstances investigative techniques can be used to gather information about the activities of individuals or groups to ensure that they are not conspiring, planning, or engaging in unlawful activity. The boundaries of First Amendment protection in this area, however, are not precise, are frequently driven by facts and circumstances, and are subject to varying levels of scrutiny in the courtroom and in the public arena. For its part, the FBI is not without guidance in balancing constitutional guarantees with its law enforcement and intelligence roles. FBI decisions on these challenging issues currently are guided by procedures set forth in the 2008 Attorney General’s Guidelines for Domestic FBI Operations (hereinafter the Guidelines). While the Guidelines are binding on the FBI only, law enforcement agencies seeking guidance in this area may be well served in consulting them and adopting the underlying principles to help ensure their investigative activity is consistent with constitutional protection and to instill a sense of confidence with the public they serve that investigative priorities do not overtake constitutional guarantees. This article discusses the general legal principles governing investigative activity that implicates First Amendment interests, a history of the Guidelines, and, then, sets forth the basic principles within the Guidelines designed to safeguard First Amendment freedoms.
Special Agent Benoit serves as a legal instructor at the FBI Academy.
The First Amendment provides:
Congress shall make no law respecting the establishment of religion,or prohibiting the free exercise thereof; or of abridging the freedom of speech,or of the press; or of the right of the people peaceably to assemble,and petition the government for a redress of grievances.3
By its very terms, the First Amendment protects several rights that are thought essential to a free and democratic society. In an open society that values the exchange of ideas, the First Amendment guarantees that the rights of speech and association may be exercised with limited government intrusion. Most times, the right of speech and association are used to further legitimate social, political, economic, or other goals. Sometimes, however, the aims of a group or its members are criminal. While the First Amendment permits a significant amount of freedom in the expression of messages and the forming of groups to support and convey these messages, these rights are not absolute.4 The challenge for law enforcement is determining at whom and at what point to draw this line. There is some degree of uncertainty in how a law enforcement agency should proceed. This uncertainty is a function of the desire to provide a wide zone of protection around speech and expression, as well as recognition that there are few Supreme Court cases on these issues. One such case before the Court in 1972 addressed government monitoring of First Amendment protected activity.
In Laird v. Tatum, the Supreme Court addressed a challenge to the lawfulness of government surveillance of political protests and protestors.5 In Laird, the particular issue before the Court was whether a surveillance program by the U.S. Army that collected information about lawful domestic protests violated the First Amendment rights of the protestors. The Court noted that certain governmental action that has only an indirect effect on First Amendment rights may be subject to a constitutional challenge if there is “a claim of specific present objective harm or a threat of a specific future harm.”6 Here, however, the protestors claimed only that their knowledge of the existence of the surveillance program “chilled” the exercise of their First Amendment rights. The Supreme Court decided that the mere “knowledge that a governmental agency was engaged in certain activities” or the fear that “the agency might in the future take some other and additional action detrimental to that individual” were insufficient to state a valid legal claim.7 Therefore, the Court dismissed the case. After Laird it was clear that those seeking to challenge the actions of the government on First Amendment grounds must show substantial or concrete harm and more than the mere existence of a program or a subjective “chill.”
Seizing on the language in Laird that a First Amendment claim could be established by showing some objective harm to protestors, lower federal courts permitted lawsuits challenging police action when there was an allegation of specific harm or allegations that police action went beyond mere surveillance.8 While various federal courts have addressed some of these issues, there remains a lack of clear legal guidance on important questions, such as the level of information required before police activity can go beyond surveillance or what types of investigative techniques are permitted. As one First Amendment expert recently commented, “Lower courts have been anything but uniform in their approach to First Amendment claims attacking investigations that are based on the protected expression of the targets.”9 The Guidelines were designed to fill this void and provide clear and specific guidance to the FBI with respect to its use of investigative activities.
Before The Guidelines
From its inception in 1908, the FBI has been charged with the collection of domestic intelligence and the investigation of matters concerning domestic security. In its early years, the authority for this mission came from various sources, including directives from the attorney general and from U.S. presidents. Intelligence-gathering programs that started in the 1930s and 1940s focusing on those posing a threat to America’s national security transformed into investigations directed at antiwar and civil rights protestors in the 1960s.
Many of these FBI investigations and the methods used to conduct them came to light in 1975 when Senator Frank Church chaired hearings now known as the “Church Committee Hearings.”10 Over the course of its investigation, the Church Committee examined and revealed several aspects of FBI operations conducted under the agency’s Counterintelligence Program, or COINTELPRO, and, in particular, the FBI’s use of informants in Ku Klux Klan investigations; the opening of over 500,000 domestic intelligence files on U.S. citizens; and the use of investigative techniques to disrupt individuals or groups holding extreme viewpoints for purposes other than investigating criminal activity or threats to national security.
Two significant findings became clear throughout the hearings. First, the FBI used its resources to go beyond investigating groups and individuals and began to use its resources to discredit groups and individuals and undermine their lawful activities. Second, the FBI lacked clear internal guidance on how to operate in these areas.11 At the conclusion of the Church Committee investigation, Senator Church stated that the purpose of his hearings into FBI domestic investigations was to:
[E]valuate domestic intelligence according to standards of the Constitution and the statutes of our land. If fault is to be found, it does not rest in the [FBI] alone. It is to be found also in the long line of Attorneys General, Presidents, and Congresses who have given power and responsibility to the FBI, but have failed to give it adequate guidance, direction, and control.12
“Striking the proper balance means determining when and under what circumstances investigative techniques can be used….”
As a result of these findings and other similar hearings, the need for clear and specific guidelines was evident. The first set of Attorney General’s Guidelines for Domestic FBI Operations was issued in 1976 by Attorney General Edward Levi. At the time, the attorney general testified before Congress that the guidelines “proceed from the proposition that Government monitoring of individuals or groups because they hold unpopular or controversial political views is intolerable in our society.”13 While the Guidelines have gone through several revisions since 1976 (most recently in 2008 by Attorney General Michael Mukasey), its role in safeguarding the rights and liberties of U.S. citizens remains the same. The 2008 Guidelines form the basis for the discussion below.14
2008 Attorney General’s Guidelines
Civil Rights March, 1963.
The 2008 Guidelines represent an attempt to reconcile the FBI’s need to be proactive in a post-9/11 world with the need for clear direction and control. Toward these ends, the Guidelines provide for two different levels of FBI information gathering or investigative activity. The first level of investigative activity is an assessment, and the second level is the predicated investigation.15 The Guidelines set forth the purpose of each activity and the investigative methods authorized for each. Regardless of whether it is conducting an assessment or predicated investigation, an essential element is common for all FBI investigative activities under the Guidelines—the requirement of an authorized purpose.
Under the Guidelines, an authorized purpose exists for the FBI when the goal of the information gathering activity is to “detect, obtain information about, and prevent and protect against federal crimes and threats to the national security and to collect foreign intelligence.”16 Although the Guidelines do not govern state, local, or tribal law enforcement agencies, they can be instructive. Police agencies that seek to collect information about individuals or groups who engage in protected First Amendment activities can ensure that their conduct is unrelated to the content of the ideas or expressions of the individuals or groups by documenting the purpose for their information gathering or investigative activity. By taking this action, departments can help ensure that their investigative activity is not only consistent with its law enforcement mission but also that the activities in furtherance of their objectives remain related to and in the scope of the authorized purpose. For example, a state or local agency charged with protecting a community may seek to obtain information about an upcoming protest to plan for traffic disruptions, properly allocate its resources, or protect against the commission of crimes. However, the agency should not engage in the investigative activity if the purpose is to discourage the protestors from lawfully exercising their rights.
Where an authorized purpose can be established, the lowest level of investigative activity permitted under the Guidelines is an assessment. Assessments provide the FBI with the ability to be proactive without having first established a factual predicate. The trade-off is that only a limited number of investigative tools are available under the assessment. Recognizing that a factual predicate has not yet been established, the authorized methods intentionally consist of those considered of low intrusiveness. The flexibility of an assessment permits the FBI to obtain information about, for example, a potential violation of federal law, without having to wait for specific information confirming that the violation actually occurred. Because the detection and disruption of criminal activity early in its inception is an important law enforcement goal, the Guidelines permit the FBI to take the initiative and collect information to determine whether criminal activity actually exists. Beyond the proactive collection of information, the FBI also may use an assessment when it receives allegations about crimes or threats to national security that can be resolved through the methods authorized by the Guidelines for the assessment.
While the Guidelines require only an authorized purpose before the FBI can collect information, strict limitations are placed on the investigative methods that are allowed. As noted above, the methods available under an assessment stage are considered to be of low intrusiveness. These methods are listed in Part II of the Guidelines.17 Authorized methods under the assessment include, for example, permitting the FBI to obtain publicly available information (where there is a diminished expectation of privacy), checking government records (information the government already has in its possession), or seeking information from the public (limited inquiries to which the public is under no legal obligation to respond).
A police department that uses a similar framework for its investigative activity may use an assessment to proactively obtain information to further its mission. For example, a city may plan a large event to celebrate a historical milestone. Aware of this planned event, the police department may use the assessment proactively to review publicly available information, including online resources, to determine whether any protest groups plan on traveling to and attempting to disrupt the event so that it may plan for and allocate its resources as may be necessary.
“As a result of these findings and other similar hearings, the need for clear and specific guidelines was evident.”
Section II of the Guidelines describe predicated investigation as the second level of investigative activity. As discussed below, predicated investigations include both preliminary and full investigations. Unlike assessments, which require only an authorized purpose, predicated investigations require both an authorized purpose and a specific factual basis justifying the investigative activity. When both an authorized purpose and factual basis exist, a predicated investigation may be initiated, and a broader array of authorized investigate methods are permitted.
Preliminary investigations can be initiated, for example, when the FBI receives “information or an allegation” that “activity constituting a federal crime or threat to the national security has or may have occurred, is or may be occurring, or will or may occur….”18 Generally, preliminary investigations may be conducted only for a 6-month period.
During that period, the FBI is permitted to make use of a wide array of authorized investigative methods. According to the Guidelines, “all lawful methods” are permitted with very few exceptions.19 The list of lawful methods is detailed in Section V of the Guidelines. The purpose of the list is to ensure that investigative activity is consistent with the law and to place restrictions on the use of specified techniques. Techniques not authorized under the preliminary investigation include the use of electronic surveillance, such as a Title III or wiretap, or the use of a search warrant. One area of particular concern in the Guidelines is the need for approval to engage in undercover activity. While the Guidelines permit undercover activity, it is permitted only in narrow circumstances and with prior approval.
To open a full investigation, there must be “an articulable factual basis that reasonably indicates that activity constituting a federal crime or threat to the national security has or may have occurred, is or may be occurring, or will or may occur….”20 The Guidelines also permit the initiation of an enterprise investigation if there is “an articulable factual basis for the investigation that reasonably indicates that the group or organization may have engaged or may be engaged in” or planning or preparing to engage in a list of specific federal crimes. This list includes, among other things, international terrorism, domestic terrorism, or the furthering of political or social goals through activities that involve force or violence and a violation of federal criminal law.21
Once a full investigation is commenced, the Guidelines permit the use of “all lawful methods” to conduct the investigation.22 Acts of violence or illegal electronic surveillance are prohibited,23 one need only look at some of the findings of the Church Committee to see why authorization for these particular acts is prohibited.
This requirement of a factual basis for a preliminary or full investigation is significant. While it may be rare for a police department to intentionally use its investigative resources without having a valid law enforcement purpose, good intentions should not act as a substitute for expressly meeting this critical threshold. In addition, documenting the factual basis in writing preserves an opportunity for a review of the information by a responsible law enforcement officer to ensure that articulable facts or circumstances are present to justify the investigative activity. Careful documentation can help protect against any claim that law enforcement attention was based upon some improper motive. Documenting these facts and circumstances also will permit a review and independent evaluation of information from a supervisor or other official.
Law enforcement agencies that seek to collect information about the activities of an individual or a group should consider the guidance found in Section V of the Guidelines. In particular, agencies carefully should specify in advance the techniques that are permitted to be used and those that will be prohibited so as to avoid ad hoc decision making that could result in officers unintentionally exceeding legal authorities. Specifically, agencies that seek to use undercover operations will find the discussion in Section V of the Guidelines instructive in helping them determine the proper use of this technique within their particular jurisdiction.
The Guidelines also recognize that different law enforcement techniques may be available to achieve a goal. To that end, the Guidelines require that in cases where different techniques are operationally sound and effective, the technique that is least intrusive on “the privacy and civil liberties of individuals and potential damage to reputation” should be used.24
Retention and Sharing
The last section of the Guidelines sets forth the FBI’s authority to retain and share information it collects in accordance with the exercise of its authority.25 To that end, the Guidelines describe in detail the entities to which properly collected information may be disseminated. This additional protection recognizes that investigative activity may result in the incidental collection of information that is noncriminal in nature and that this information should not be shared unless dissemination is made to an authorized entity. It is clear that these restrictions within the Guidelines ensure that improper use will not be made of information properly collected. Police agencies that institute similar restrictions within their departments also can ensure that sharing information collected through investigative activity furthers an authorized purpose and is made only to appropriate entities.
This last element does not have its own section within the Guidelines, but, nonetheless, represents a concept that is present throughout. The Guidelines contemplate that supervisory oversight—both internal and external—is a significant component of each section. Thus, the requirements discussed above, such as the necessity of a factual predicate before commencing investigative activity, require supervisory approval at different levels within the FBI.26 The use of authorized techniques or the dissemination of information contain similar requirements. A police department that contemplates incorporating provisions of the Guidelines into its policies and procedures will recognize the need to identify the appropriate supervisory personnel to act as approving authorities. The approving authorities provide a level of oversight within the department and ensure that investigative activities are appropriate and consistent with the mission and resources of the agency.
The provisions of the Guidelines as described above can provide guidance and a framework to be used by police departments that engage in any investigative activity. However, the Guidelines also are well suited for use in sensitive matters, such as investigative activity that may have an impact on protected First Amendment rights.
As an example, the activities of the Maryland State Police and its surveillance of antiwar and antideath penalty protestors from March 2005 to May 2006 provide a real and current example of how the incorporation of provisions within the Guidelines can help avoid claims of abuse of authority by law enforcement agencies and establish that operations are conducted consistent with constitutional protections.
Commencing in March 2005, the Homeland Security and Intelligence Division (HSID) of the Maryland State Police (MSP) conducted covert surveillance of antideath penalty and antiwar activists within the state of Maryland.27 The purpose of the surveillance was to “prepare for any civil disturbance” resulting from the planned execution of two death row inmates.28 Because of an overlap between antideath penalty protestors and antiwar protestors, the HSID began to monitor the antiwar groups for the same purpose. The initial activity consisted of preparing a “threat assessment” about protest activities surrounding an execution of a death row inmate. The threat assessment consisted of collecting information from public sources, but did not identify any information regarding unlawful conduct. However, an MSP analyst monitoring a covert Internet account came across information concerning antideath penalty meetings to organize demonstrations. Based upon this new information, an undercover MSP trooper attended the initial meeting. Over the next 14 months, the trooper attended additional meetings consisting of very small groups of activists. During this period, the trooper exchanged e-mails with other protestors and worked to “gain their friendship and trust.”29 Many of the e-mails sent by the trooper did not attempt to solicit information about protests. After attending a rally outside of a prison in April 2005, the undercover trooper learned that an antideath penalty protestor also was an antiwar protestor. This trooper then exchanged e-mails to learn more about the antiwar groups and attended at least two antiwar meetings. The trooper prepared investigative reports of her activities that contained details of these meetings and protests and included the names of people who attended them.
When these activities of the MSP came to light in July 2008, the public reaction was swift, as was the reaction of Governor Martin O’Malley. By the end of the month, the governor requested an independent review of the “intelligence-gathering operation undertaken by the MSP from approximately March 2005 to May 2006.”30 A discussion of the findings of the independent review as detailed in this report with provisions of the Guidelines is instructive.
The first step taken by the MSP, as documented within the report, was to open a “threat assessment” to determine whether there was a threat of public disturbance at the rallies. Under this, the MSP collected information from public Web sites and government databases to properly evaluate this threat. Because the MSP is charged with “gathering intelligence on, and investigating, threats to public safety,” these findings suggest that the surveillance program was directed at an authorized purpose.31 The report also determined that the purpose of the surveillance was driven by the desire to protect public safety and that there was no indication that the surveillance was intended to suppress the First Amendment rights of the protestors. However, at the conclusion of this stage, the MSP did not identify “any specific threat to public safety or reason to suspect that either pro- or antideath penalty groups would engage in unlawful conduct in connection with the planned executions.”32 Under the Guidelines, the initial collection of information using relatively nonintrusive methods would be consistent with an assessment because it was related to an authorized purpose.
“It is clear that these restrictions within the Guidelines ensure that improper use will not be made of information properly collected.”
Despite the absence of actual information “that would support any reasonable, articulable suspicion that unlawful conduct or civil disturbances were likely to occur,” the MSP decided to assign an undercover trooper to attend antideath penalty meetings.33 The trooper documented each meeting attended and, despite the lack of information indicating the likelihood of criminal activity, continued to attend the meetings for over a year. According to the report, “To the extent the MSP believed there was some need to gather more information, [the undercover trooper’s] observations from the first several meetings should have conclusively eliminated any genuine public safety concerns….”34 Many of the investigative reports filed by the undercover trooper included statements indicating that no problems or disruptions were observed, and no plans for criminal activity were identified.
It is here that the need for both an authorized purpose and a factual predicate becomes clear to permit the opening of a predicated investigation and allow specific investigative techniques. There was no question that the MSP was motivated by the desire to protect the public safety, but that motivation, without any factual basis, would permit investigative activity to be directed at nearly every group. As documented in the report, the MSP initiated and continued undercover surveillance without a factual basis to indicate there was any threat to public safety. The Guidelines do not authorize such activity without a factual predicate, and the Maryland report concluded that “the surveillance undertaken here is inconsistent with an overarching value in our democratic society - the free and unfettered debate of important public questions. Such police conduct ought to be prohibited as a matter of public policy.”35
The report on the MSP activities also included discussions on the dissemination of information collected and the importance of supervision and oversight of operations of this nature. These issues of supervision and oversight are addressed in the Guidelines, and adherence to the Guidelines would help ensure that all aspects of investigative activity help to ensure the legitimacy and legality of such activity.
In an era of increasing public attention and scrutiny directed at law enforcement agencies in the conduct of their investigations, the use of internal guidelines and procedures can ensure that police departments operate consistent with their mission and in compliance with the law. Agencies seeking to develop or enhance their policies can look to the Attorney General’s Guidelines as a valuable source of information. As discussed previously, the Guidelines contain clear and practical directions that can be incorporated into departmental policies. The benefits include, among other things, the assurance that investigative activity is directed at a mission related purpose and that it is conducted in a lawful manner. Adherence to a set of guidelines also will foster a sense of public trust and support.