~Photo by Niv Singer, (public domain – https://unsplash.com/photos/LkD_IH8_K8k)
By: Wilson Greene
Director Spike Lee’s newest film, BlacKkKlansman, dramatizes the true story of how Ron Stallworth, the first African-American detective on the Colorado Springs Police Department, led a police infiltration of a local branch of the Ku Klux Klan. The operation was simple: Stallworth contacted local Klan leaders posing as a white supremacist who wished to join, designated a white detective in his unit to attend Klan meetings, and gleaned information concerning any planned violent acts against community members.
The undercover work was largely successful in hampering the Klan’s presence in Colorado Springs – so successful that Stallworth even developed a close relationship via phone with the Ku Klux Klan’s Grand Wizard, David Duke.
In many respects, Stallworth’s investigation exhibits police infiltration at its best. In order to prevent future violence, local law enforcement plants an undercover officer in one of the most universally recognized hate groups. However, the operation equally seemed to be an exception to the rule that police surveillance is and has historically been premised upon unwarranted or misguided presumptions regarding political figures and movements.
Indeed, as argued in a recent United Nations Special Rapporteur report, police infiltration in America is commonly “based upon racial or religious profiling” in order to “gather intelligence, creat[e] disruption, seek informants, and, more worryingly, to incit[e] and enabl[e] members to commit crimes, vilify the groups and movements as a whole, often under the banner of . . . security.” Such surveillance, the UN reporter argues, has the propensity to “chill and undermine the right to peaceful assembly.” Nonetheless, this suggestion has not prevented use of the tactic by American law enforcement.
Nearly fifty years after Dr. Martin Luther King was closely surveilled by Memphis police upon landing in Tennessee to support a labor strike in April 1968, the Memphis Police Department has again been accused of spying on political activists. In a recently filed lawsuit, the ACLU of Tennessee alleges Memphis investigators created a fraudulent Facebook profile intended to deceive Black Lives Matter organizers into providing information about their organization and future demonstrations.
Similar accusations were recently raised in Chapel Hill, North Carolina where ongoing protests surrounding the recently toppled Silent Sam (a monument erected to memorialize Confederate dead in 1913 on the northern end of the University of North Carolina) have been met with police backlash. Notwithstanding reports of vigorous arrests, use of pepper bombs to disperse activists, and the $390,000 local and campus police spent during the 2017-2018 fiscal year to provide security around the monument, many students and community members were especially disturbed by the surveillance activities conducted by Chapel Hill officers. Last year, officer Hector Borges went undercover posing as a local auto-mechanic sympathetic to and supportive of those protesting Silent Sam. Borges was later confronted and outed as a campus police officer. Many activists quickly denounced the ploy as one employed “against free speech” that carries “a serious risk of chilling speech.”
Such tactics surely have the propensity to quell demonstration and the planning thereof. Even more troubling, police surveillance can also take a deep emotional toll on those simply wishing to express their own inclinations.
An Air of Unconstitutionality
While police infiltration may feel, as the U.N. reporter described, “unfathomable” or, as other civil liberties groups have characterized the practice, “unconstitutional,” undercover infiltration has largely been upheld in the United States – even by the country’s highest court.
In Laird v. Tatum, the United States Supreme Court dismissed a suit brought by political activists claiming their First Amendment rights were violated by a U.S. Army surveillance program, which they alleged chilled their freedom of speech. Under the program, undercover intelligence officers were deployed into a local community to gather information in order to quell suspected future civil disruption. Rather than rule on the lawsuit’s merits, the Supreme Court held any chilling effect resulting from the program was a nonjusticiable issue as it arose “merely from the [activists’] knowledge that a governmental agency was engaged in certain activities.”
The Court determined since the operation did not result in “direct injury” to the activists, their suit lacked judicial standing. Furthermore, without indicating what a “direct injury” would be in this context, the Court unilaterally adopted a restrictive standard of First Amendment standing: mere claims of dissuasion from exercising First Amendment rights in light of government surveillance did not constitute an injury.
Courts quickly adopted this precedent and claims of chilled First Amendment rights by way of law enforcement surveillance have consequently rarely been examined on their merits; rather, they are frequently dismissed for lack of standing. Accordingly, political activists in Memphis, Chapel Hill, and beyond who lead and partake in protests and movements at large are left with little to no recourse in bringing claims against law enforcement.
This is an especially troubling notion considering the recent proliferation of new, large-scale public activism in the age of social media. With the rise of movements such as Occupy Wall Street, Black Lives Matter, and recent gun control protests, students, professionals, and community members alike have become more politically vocal across the country. While local and state law enforcement have the avowed duty to provide for the public’s safety, the fact that many recent social movements have explicitly adopted platforms of peace makes it more and more difficult to justify surveillance and infiltration.
Justice William O. Douglas dissented in Laird v. Tatum, calling government sanctioned surveillance a “cancer” and “a measure of the disease which afflicts us.” He continued: “But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people.” Indeed, the very notion of police infiltration seems to run completely contrary to First Amendment freedoms. Nonetheless, as long as over forty years of judicial precedent continues to hold that activists lack sufficient injury to challenge the practice, the power to penetrate political groups and movements will remain unchecked.