Picketers, Protesters, and Police: The First Amendment and Investigative Activity
Benoit, Carl A., The FBI Law Enforcement Bulletin
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. 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.' 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 (here-inafter 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. …