From Memphis, with Love: A Model to Protect Protesters in the Age of Surveillance

By Bara, Farrah | Duke Law Journal, October 2019 | Go to article overview

From Memphis, with Love: A Model to Protect Protesters in the Age of Surveillance


Bara, Farrah, Duke Law Journal


Abstract

In 1978, after two years of contentious litigation, the City of Memphis entered into a unique agreement with its citizens: it signed a consent decree, stipulating that it would halt its interference with First Amendment-protected activities. More specifically, the Consent Decree barred the City from surveilling protesters--the very conduct that triggered litigation.

Fast forward forty years. In 2018, narratives of police brutality dominated the nation's headlines. Consequently, protesters demonstrated from the streets of Ferguson, Missouri to Oakland, California. And in Memphis, Tennessee, those who protested were often met with an all-too-familiar response--surveillance by the Memphis Police Department. That is until the Western District of Tennessee found that the City had violated the terms of its own agreement. The court's message was undeniably clear--the Memphis Consent Decree is alive and well.

Memphis is by no means an outlier in police-civilian relations. After all, police departments across the country surveil protesters. But Memphis is an outlier in terms of the method it has chosen to address this issue. As the surveillance of protesters and the capacity to surveil protesters grow, the Memphis Consent Decree offers a model for future legislation that better safeguards First Amendment values. This Note accordingly narrates the story of Memphis, its successes and failures, and the lessons it holds for hundreds of cities, for decades to come.

"MPD has the opportunity to become one of the few, if only, metropolitan police departments in the country with a robust policy for the protection of privacy in the digital age. The Court recognizes this may be a heavy burden; being a pioneer usually is." (1)

INTRODUCTION

Two hundred protesters gathered outside FedExForum in Memphis, Tennessee on the evening of July 10, 2016. (2) In the wake of heightened police brutality across the country, the protesters arrived with a simple message: they were "tired of the senseless killings of black people." (3) Half an hour later, the protesters marched north, climbed the ramp to Interstate 40, and shut down the 1-40 bridge. (4) By 6:30 p.m., several hundred protesters had assembled on the bridge; at its peak, more than a thousand protesters; and by 10:45 p.m., zero. (5)

At some point over those four hours, Memphis Police Department ("MPD") Interim Director Michael Railings appeared, accompanied by a fleet of officers. (6) Some protesters worried that violence would tread on the heels of the officers' arrival. (7) What followed was quite the opposite. In a powerful moment of solidarity, Railings locked arms with the protesters and prayed. (8) "I was truly concerned about the legacy of Dr. Martin Luther King Jr.," he later explained. (9) "I thought I heard his voice saying get up there and try to get this resolved." (10)

That was about as wholesome as the story got. The day after the protest, Memphis Mayor Jim Strickland made this statement: "As Memphis mayor, I respect the Constitution and the right to assemble peacefully in protest.... [But] [l]et me be clear: you can exercise your First Amendment rights without breaking the law." (11) Mayor Strickland's professed adoration for the Constitution notwithstanding, MPD's Office of Homeland Security ("OHS")--originally created after 9/11 to combat terrorism--implemented a program to surveil protesters. (12) Officers tracked individuals who attended protests, monitored their social media activity, and recorded protesters' names and activities on OHS spreadsheets. (13) Some protesters also ended up on "blacklists," which banned them from entering City Hall unless they received police escorts. (14) One protester even reported being followed by the police. (15)

MPD is far from alone in its surveillance of protesters. Police departments across the country, from Oakland, California to Ferguson, Missouri, also monitor protesters. …

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