Government Interference in Protesting

My Article of the Day, by Geoffrey Stone from the Guardian [photos added]:

You've decided to participate in an anti-Iraq war demonstration. Perhaps you've never done such a thing before. But you're troubled by the way things are going in Iraq and you want to express your concern. After bundling up against the cold and marching several blocks side-by-side with your protesting comrades you come upon a platform on which a burly man wearing a dark blue FBI jacket is videotaping the event. What is your reaction?

For many, perhaps most, people, this would generate a sense of anxiety. Why is he there? What's the point of videotaping the protest? Sure, channel 6 might do this, but why the Federal Bureau of Investigation? In all likelihood, you will begin to wonder whether this might land you in a file. At this point, you might begin to second-guess your decision to march. After all, whether you protest or not will have absolutely no effect on national policy. One marcher more or less is a matter of no consequence. But what if the FBI turns this photograph over to the Internal Revenue Service, or to your employer, or to your landlord? The next time someone asks you to march in a protest, sign a petition, or attend a lecture by a government critic, you just might think twice.

Such participation is a fundamental aspect of free speech. It is easily discouraged ("chilled") because our individual act of expression is unlikely to make a difference. But if many people are individually chilled, the overall impact on public discourse can be quite dramatic. This is why courts formulating First Amendment doctrine generally pay special attention to the dangers of chilling effect.

Unfortunately, courts generally pay attention to chilling effect only when the government is actually doing something to harm an individual because of his speech - for example, criminally prosecuting him, firing him or allowing him to be sued. In such circumstances, courts try to ensure that the law protect not only the person being prosecuted, fired or sued, but also those who might be deterred from speaking by the fear of being prosecuted, fired or sued.

Note, however, that in my demonstration hypothetical, the government isn't necessarily doing anything to directly harm anyone. It's only filming the event. And, so far as we know, the government isn't using the information to do anything improper. The fear is only that the government might do so. In this situation, which is quite common, courts are usually reluctant to allow individuals to challenge the government's conduct. If they can't prove the government has misused the information against them, they have nothing to complain about. Mere chilling effect is not enough. That you might never again exercise your First Amendment right to sign a petition or march in a demonstration because of your fear that the government will misuse the videotape is not a legally cognizable harm.

This is a very bad doctrine. It is why the government can usually get away with videotaping political demonstrations, demanding that bookstores and libraries turn over information about book buyers and borrowers, recording the names of those who attend particular mosques, and wiretapping phone calls when no single individual can prove that he was wiretapped. All of these techniques have been used by the Bush administration; all of them have a serious chilling effect; and under existing law it is very difficult for anyone to challenge the constitutionality of the government's conduct. The very fact that the government keeps secret what it does with the information prevents anyone from suing, even though the information gathering can have serious consequences for First Amendment activity.

There is one ray of hope. On February 15, federal Judge Charles S Haight, Jr ruled that the New York City police cannot - in the absence of any reason to believe that unlawful activity might be afoot - constitutionally videotape individuals who are peacefully exercising their First Amendment right to demonstrate against government policy. More than thirty years ago, Attorney General Edward Levi recognized this same principle. He adopted a Justice Department guideline prohibiting any FBI investigation of a political or religious organization or activity in the absence of reasonable grounds to believe that unlawful conduct was involved. Unfortunately, the Bush administration repealed that guideline. Hopefully, Judge Haight's decision will be a significant step toward fixing this glaring deficiency in American constitutional law.