FindLaw's Writ - Barr: Chilling Political Speech. . .

FindLaw's - Barr: Chilling Political Speech
The FBI's Pre-Emptive Interrogations Of "Possible" Demonstrators

The FBI's Pre-Emptive Interrogations Of "Possible" Demonstrators: Chilling Political Speech By BOB BARR - Wednesday, Aug. 25, 2004

The FBI, no longer content with working to maintain order at political events, is now preemptively identifying and interrogating ("interviewing") possible demonstrators. It has summarized this strategy in a memo.

To make matters worse, the Department of Justice blessed the FBI strategy in its own memo - suggesting that no First Amendment concerns are raised by the interrogations.

As I will explain in this column, however, the truth is quite to the contrary: The strategy, as outlined in the memo, is a serious threat to free speech.

Back When Politics Was Fun, Protest Was Part of It

Throughout the Reagan and Clinton presidencies, and even to some extent during the Nixon years, politics was fun. At least, political protesting had its lighter moments. (Nothing was really fun during the dour Carter Administration, and George H.W. Bush's presidency was, well, pretty boring except for the First Gulf War.)

Who can forget the great costumes and Nixon face masks that appeared at many political rallies and other events during the 1960s and early 1970s? Reagan and Clinton masks, the latter sometimes adorned with long, Pinocchio-type noses, added color and a bit of levity to political demonstrations throughout most of the 1980s and 1990s. There was, in a word, tolerance.

Reagan, with his constant good humor, almost always disarmed protesters with his wit. Conservatives wearing anti-Clinton T-shirts frequently showed up at Clinton rallies. The worst they might face from the then-president's supporters were scowls.

This atmosphere didn't mean security was absent; it was very present. In the 1960s through the end of Clinton's second term in January 2001, everyone knew if you caused disruption, Secret Service agents would be on you in an instant, as they should be.

But during that period, you didn't feel you were doing something criminal if you simply decided to show up at a rally with a protest T-shirt on, or lugging around a sloppy paperboard sign criticizing the president. You didn't feel intimidated.

The Bush Administration: Squelching Disagreement and Dissent

Now, things are very different. The Administration and campaign of George W. Bush is squelching any possible hint of disagreement or protest at every political rally or gathering.

For example, people with T-shirts that hint at disagreement are not allowed anywhere near the events, nor even on the route traveled by the presidential motorcade. Think what they'd do to you if you showed up in a - shudder -- mask.

But it's gotten even worse than that.

The FBI's Preemptive Interrogation Memorandum

As the New York Times has reported, in an October 2003 memorandum to law enforcement agencies, the FBI expressed great concern over the possibility that marches and rallies in Washington, D.C. and San Francisco might become "violent, destructive, or disruptive."

The memo went on to urge law enforcement to monitor the Internet, because "protesters often use the Internet to . . . coordinate their activities prior to demonstrations." It also urged law enforcement to watch out for protesters who use cell phones to "coordinate . . . or update colleagues."

In the memo, law enforcement agencies at all levels of government are warned to be aware of "possible indicators of protest activity." Moreover, even though the memo does not cite any evidence of violence likely to take place at "possible protests," the Bureau's memo concluded by telling law enforcement agencies to "report any potentially illegal acts to the" FBI (italics added).

The Department of Justice Memo Blessing the FBI Memo

Doubtless, the Department of Justice, aware of the FBI memo, was concerned that it would be seen as urging law enforcement to begin monitoring persons who might be contemplating staging political protests protected by the First Amendment. So several months later, in April 2004 - as the New York Times also reported -- the Department of Justice, which oversees the FBI, issued its own memo - addressing, and dismissing, these constitutional concerns.

The memo came from DOJ's Office of Legal Counsel (OLC). In the memo, OLC concluded, not surprisingly, that the monitoring, interrogating and gathering of evidence on potential political protesters raised no First Amendment concerns. In addition, it went on to conclude that even if, hypothetically, such activities did raise concerns, any "chilling" effect would be "quite minimal" and would be far outweighed by the overriding public interest in maintaining "order."

Evidence Suggests Protesters Are Subjected To Home and Office Interviews

No chilling effect? In the last few months, evidence has been mounting that special agents are showing up at the homes and offices of potential protesters - casting suspicion upon them in front of bosses, colleagues, family, friends and neighbors. This activity apparently has increased as the Republican Convention and the November election draw near.

If that's not a chilling effect, I don't know what is. The price of free speech should not be a high-profile FBI visit that makes all who know you wonder if you may be a criminal.

During these visits, the special agents "interview" the potential protesters to determine if they -- or anyone they know -- might be planning any political demonstrations. Of course, the "anyone they know" is especially worrisome - hints of McCarthyism.

Also according to the New York Times, the final question the FBI agents ask is this: Does the interviewee know that withholding information on whether they know anyone else who might be planning a demonstration or "disruption" is itself a crime?

One can only imagine how this parting shot plays out: "Oh, by the way, ma'am, before me and my armed partner here leave your house, we'd like to remind you that if you haven't told us if you know someone else who might be planning a demonstration, you have committed a crime and we can prosecute you for not telling us that. Have a good night, ma'am."

This, of course, is pure intimidation.

DOJ's Absurd Stance: Interrogation in Home or Office Is Not Interrogation

The FBI, seemingly, takes an absurdly narrow view of what kind of tactics would, in fact, chill speech - a view that excludes its own plainly chilling measures.

For instance, Joe Parris, an FBI spokesman, told the New York Times that, because "no one was dragged from their homes and put under bright lights," interviews of potential demonstrators are not "chilling."

So now we know the Administration's new First Amendment standard: So long as the government agents don't "drag you from your home" and interrogate you "under bright lights," you have nothing to complain or worry about.

The fact of the matter is, tactics such as those contemplated in last year's FBI memo, and approved by the Justice Department this past spring, do chill free speech. They do intimidate.

And, self-justifying memos by government lawyers notwithstanding, such tactics usher in an era of intolerance and fear that has no place in American politics.

Bob Barr served in the U.S. House of Representatives from January 1995 to January 2003. He was a senior member of the Judiciary Committee. He now practices law, writes extensively, works with the American Conservative Union, and consults on privacy matters with the ACLU.