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Decision in Chicago case could erode protections for political dissenters

Commentary

By Douglas Lee
Special to freedomforum.org

01.24.01

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Every time we look away when law enforcement cracks down on unpopular protesters, the police steal a little of our freedom. Every time we choose comfort over dissent, we surrender a piece of our security. And every time we remain silent when minority rights are attacked, we end up sacrificing our own right to speak.

It happened recently in Chicago, where a three-judge panel of the 7th U.S. Circuit Court of Appeals announced its decision in Alliance to End Repression v. City of Chicago. Admittedly, the ruling doesn't shake the core of the First Amendment. Nor does it immediately threaten picketers or peaceful protesters. But the decision, which erased 20 years of recognized protection for what a decree called "First Amendment conduct" in Chicago, demonstrates how easily judges can strip away important minority rights.

The minority rights at issue in Alliance to End Repression are rooted in litigation filed in 1974. In that lawsuit, a number of individuals and organizations alleged that the FBI's Chicago office and the Chicago Police Department routinely violated First Amendment rights when investigating potentially subversive activities. Of particular concern were the techniques of the "Red Squad," the intelligence division of the Chicago Police Department. By all accounts, the Red Squad spied on, infiltrated and harassed a wide variety of political groups. While some of these groups were potentially dangerous, many were harmless advocates of unpopular political speech.

In 1981, the federal government and the city of Chicago settled the case before trial by agreeing to a consent decree that restricted their investigatory powers. The heart of the consent decree is its definition of "First Amendment conduct," which includes the right to hold and communicate political views and the right to advocate unlawful behavior in support of those views, except when the advocacy is likely to incite imminent lawless action. This exception, as the consent decree recognized, is based on the U.S. Supreme Court's 1969 decision in Brandenburg v. Ohio.

In 1999, the city asked the federal district court to modify the decree. Under the decree, the city claimed, it could not adequately monitor terrorist organizations and gangs or investigate hate crimes.

The judge hearing the city's petition disagreed.

First, she noted, the city did not cite any provision of the decree that restricted its ability to investigate terrorism. In fact, the judge said, the city's only role in investigating terrorism had been assigning officers to the FBI's terrorism unit.

The judge also rejected the city's claim that the decree limited its ability to investigate gangs and hate crimes, as the decree permitted investigations into ongoing criminal enterprises and violence. The judge also ruled, despite the city's argument to the contrary, that substantial evidence existed that the city had violated the decree on several occasions. The district court, therefore, refused to modify the decree.

On appeal, the 7th Circuit reversed, revising both history and the trial court's ruling. Nowhere in its ruling, for example, did the appeals court acknowledge the city's alleged violations of the decree. Nor did it identify any provision of the decree that had restricted or could restrict the police department's investigation of potential terrorists. Instead, it deferentially accepted the city's claim that the decree prevented it from monitoring and infiltrating terrorist groups.

In its understandable rush to allow the Chicago police to prevent terrorism before it occurs, the appellate court drew fine — and unsupportable — distinctions between the political dissent of yesterday and today.

"The era in which the Red Squad flourished is history, along with the Red Squad itself," the court said. "The instabilities of that era have largely disappeared. Fear of communist subversion, so strong a motivator of constitutional infringement in those days, has disappeared. ...

"Today, the concern, prudent and not paranoid, is with ideologically motivated terrorism. The city does not want to resurrect the Red Squad. It wants to be able to keep tabs on incipient terrorist groups," the judges said. "And if the . . . investigation cannot begin until the group is well on its way toward the commission of terrorist acts, the investigation may come too late to prevent the acts or identify the perpetrators."

From a First Amendment perspective, no distinction exists between "communist subversion" and "ideologically motivated terrorism." As long as First Amendment conduct does not directly incite imminent illegal action, it is protected, whether it advocates communism or some other anti-democratic message. Conduct falling outside the freedoms of speech and assembly never has been protected by the First Amendment and was not protected by the decree. The effect of modifying the decree, therefore, can only be to permit investigation of pure First Amendment conduct.

Don't worry, the 7th Circuit said. A violation of First Amendment rights is still a violation, with or without the decree. "First Amendment rights," the court assured us, "are secure."

Don't be surprised, however, if political dissenters in Chicago disagree.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.

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NYPD seeks more leeway to monitor political groups
Citing a climate altered by terrorist threats, department asks federal court to sharply curtail powers of three-member panel that oversees its surveillance of domestic activists.  09.26.02

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