Decision in Chicago case could erode protections for political dissenters
By Douglas Lee
Special to freedomforum.org
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.
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
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
"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
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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