Spring 2022 Symposium

Introduction

The First Amendment states that “Congress shall make no law prohibiting the free exercise [of religion] . . . or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble . . . ."[1] The fourteenth amendment incorporates this fundamental right to provide First Amendment protections at the state level as well.[2] Therefore, a state cannot infringe upon its citizen’s fundamental First Amendment rights. The First Amendment may also protect individuals and their rights from a public state employee, such as a police officer. There is a circuit split over how the First Amendment interacts with police officers as several circuit court decisions have found that police officers cannot take away an individual’s First Amendment rights as long as they are not obstructing an arrest or investigation, while other circuits have found that they can infringe on some rights.[3] The confusion over an individual’s First Amendment rights is especially problematic in the digital age. Police departments around the country are increasingly ramping up efforts to monitor the online activity of ordinary citizens through social media.[4] This monitoring can have a chilling effect on the free speech and expression rights of activists, communities of color, and, broadly, all social media users.[5] This raises an important legal question: when would official police surveillance and activity on social media constitute a violation of the First Amendment due to its chilling effect on those rights.

Chilling Speech Doctrine

The Supreme Court has consistently ruled that anything which creates a deterring or chilling effect on the freedom of speech, religion, or the press violates the First Amendment.[6] In Baggett v. Bullitt, the Supreme Court held that the threat of sanctions for violating a law was just as potent in infringing the First Amendment as actually enforcing those sanctions against an individual.[7] The Court elaborated in their discussion of the case that a requirement of loyalty oaths to the United States for public employees was unconstitutional under the First Amendment since it protects an individual’s right to free expression. If a public employee chooses not to associate or swear allegiance to the United States, that expression is protected under the First Amendment.[8] This free expression may be jeopardized or “chilled” by a loyalty requirement. Most of these cases which established a chilling doctrine for the First Amendment were ruled during an era of anti-communist crackdown known as the McCarthyism era.[9] Therefore, the threat of sanctions under a loyalty oath can, itself, create a chilling effect on the exercise of free expression.

The scope of this chilling doctrine is quite broad. In the 1965 case of Lamont v. Postmaster General, the Supreme Court ruled that a statute requiring individuals to sign up at the post office to receive communist literature was unconstitutional even though no sanctions existed under the law.[10] The Court reasoned that during an era of persecution and crackdown on communist ideas as “unamerican” under the FBI, individuals might be reasonably concerned about signing up at a post office to receive literature. The law would have, intended or not, discouraged individuals who wanted the literature but did not want to make their beliefs known to the government.[11] The fear was that the FBI would collect millions of people’s information in a dossier of “unamerican” individuals. The threat of having one’s beliefs known to the government and potentially used against oneself, even if there is no identifiable sanction in the law, still violated the First Amendment.[12] In essence, the Supreme Court has frequently held that government actions that promote self-censorship out of fear of contextual government reprisal (the general anti-communist sentiment present at the time) will likely have a chilling effect on self-expression assured by the First Amendment.[13][14]

These cases demonstrate the types of laws that chill speech and are therefore generally unconstitutional under the First Amendment. However, when it comes to surveillance programs, the Supreme Court requires an additional criteria to show that “concrete harm exists” due to the surveillance that would cause a chilling effect on the First Amendment. In Laird v. Tatum, the Supreme Court ruled that an Army Intelligence Program surveilling civil rights protests did not violate the First Amendment.[15] The Court held that just the existence of a surveillance program that may incidentally chill a First Amendment right does not violate the First Amendment. There needs to be “is in immediate danger of sustaining a direct injury as a result [of government surveillance].”[16]  The Court’s holding becomes clearer in the context of an earlier case: Baird v. State Bar of Arizona. The Court concluded that a requirement to have never been a part of the communist party for admission into the bar association violated the First Amendment.[17] They argued that a civil benefit, such as admission into the bar association, cannot be denied to someone for their association with the communist party without violating the First Amendment right to free association.[18] Supreme Court precedent has shown that surveillance that chills a First Amendment right needs to either directly lead to injury or be used to justify denial of a civil benefit in order to violate the First Amendment.

Lower courts have made exceptions to this additional requirement. In the case of Hassan v. The City of New York, the third circuit found that surveillance of Muslim populations, including mosques, businesses, student groups, and cafes in the post 9/11 era, violated the First Amendment.[19] If the monitoring is racially or religiously biased, then that surveillance can be challenged since it acts as retaliation against marginalized groups for exercising their First Amendment rights.

Police Surveillance of Minorities

Police tools to observe social media are expanding. The police engage in social media monitoring to “gather information for purposes including, but not limited to, identifying potential threats, reviewing breaking news, collecting individuals’ information, conducting criminal investigations and intelligence, and gauging public sentiment.”[20] They primarily use two options to monitor social media accounts, either (1) having individuals scrub social media accounts by utilizing the platform’s search features themselves, which can be tedious and costly, or (2) third-party monitoring tools including artificial intelligence (AI) and algorithms “that use keywords, geographic locations, and data mining to identify trends and networks of association.”[21] However, an issue arises in the efficiency of AI/algorithm tools. The enormous amount of data that exists online would make the probability of running into a false positive - an identification of a potential threat that does not exist in reality- incredibly high.[22] Police can then use information from social media to form the basis of an arrest or warrant for further action. False accusations could be levied pretty convincingly by law enforcement against innocent citizens based on their social media data. Those accusations may deter individuals from freely expressing themselves online to avoid being observed or accused of criminality by police. This situation becomes more worrisome in light of the growing adoption of this technology. Police spending on AI-power systems is expected to increase up to $18.1 billion from $11.6 billion in 2019.[23]

One means of how this surveillance could violate the First Amendment is if it chills the political speech of minorities. Many Black and Hispanic social media users find that social media platforms are essential to giving underrepresented voices a spotlight in shaping political discourse.[24]  Approximately half of Black social media users believe that social media platforms are essential “as a venue for expressing their political views or for getting involved with issues that are important to them.”[25] This would not be a cause of concern if there were not already existing evidence that other branches of government  have used monitoring tools to disproportionately target minorities’ political activity. The FBI has been ranking border protest groups and Black activists as a larger count-terrorism threat than white supremacists or Al-Queda.[26] This has led the FBI to directly investigate the social media accounts of animal rights activists, racial justice proponents, and Hispanic activists. In one instance, the FBI specifically targeted border protestors and justified their actions by labeling them as “anarchist extremists” whose calls for increased protest activity would lead to violence.[27]

In one specific example of law enforcement monitoring social media to disproportionately target minorities, there is evidence that the Los Angeles Police Department, LAPD, has been collecting Twitter tweets and data under broad areas of surveillance such as civil unrest.[28] This category is specifically used for movements that spread disinformation or undermine public safety. Therefore, they help understand how the LAPD views political activist movements. However, the LAPD has been gathering data on tweets containing phrases like “protest,” “solidarity,” and, very blatantly, “lives matter”.[29] This type of word/phrase filtering is likely to place most Black Lives Matter posts in a database of disinformation and threats to public safety. However, the LAPD has not provided any evidence or attempted to show that the Black Lives Matter (BLM) movements present a public security risk.[30] Quite the opposite, BLM protests were overwhelmingly nonviolent.[31] As further proof that the LAPD was specifically targeting minorities, internal LAPD emails show that they considered BLM and “defund the police” movements to be funded by foreign agents and were tantamount to conspiracy theories.[32] This assertion was made, again, with no evidence backing up the claims.

This type of hostile monitoring directly leads to a suppression of social media activity. A Facebook study found that a majority of participants were less likely to voice their unpopular opinions online when they were aware of the surveillance.[33] Participants were shown a fictitious Facebook post about airstrikes on ISIS and were told that the NSA was monitoring them. They were asked if they wanted to share, repost, or comment on the fake post and what they believed to be the majority of Americans' perception of the issue. Most participants declined to share their opinions when they differed from the majority’s views under surveillance.[34] In another study, researchers found that internet traffic to Wikipedia sites relating to terror groups fell fast after Edward Snowden leaked information that the NSA was collecting information from companies (Apple, Google, Wikipedia, etc.) about user interaction with particular website pages.[35] Traffic dropped by 30% and remained at a decreased volume indicating a long-term chilling effect. The author found that the study had “broader implications for . . . U.S. constitutional litigation, and the health of democratic society.”[36] This type of police observance and chilling effect would qualify as a violation of the First Amendment in a similar way that the surveillance of Muslims was unconstitutional in Hassan v. The City of New York.[37] Accordingly, the requirement for a showing of direct injury or denial of a civil benefit is not necessary.

Police Surveillance and Criminal Justice

Another means of violating the First Amendment includes social media monitoring with the threat of punishment/injury under our criminal justice system. As an article in the Oklahoma Law Review demonstrates, the consequences of social media monitoring can be life-altering:

Jelani Henry was a teen who grew up in New York City. He and his brother Asheem were members of a “crew,” which is not a gang but is a sort of affiliation of neighborhood kids who hang out together. While Asheem had committed some crimes as a crew member, Jelani himself had stayed in the background and away from criminal activity. When he was erroneously picked out of a lineup for committing attempted murder, however, he was described in court proceedings as a member of a “violent gang”--on the grounds that he had appeared on social media in pictures with other members of the crew, and had commented on and liked videos of other crew members. In addition, after Asheem was arrested for his crimes, he was also indicted on conspiracy charges, largely on the strength of online pictures showing him with other crew members. Jelani ultimately spent two years on Rikers Island, including roughly nine months in solitary confinement, before his case was finally dropped and he was let out. As it turns out, there was no case against Jelani; despite that, he spent two formative years in jail, largely on the basis of social media “evidence.”[38]

Stories like Jelani Henry’s show that police surveillance can create real consequences for innocent social media posts. It actively discourages users from posting anything relating to their personal lives. Other arrests have occurred, with the only basis being a social media post. Wichita police arrested two men for inciting a riot because they both posted a Snapchat story with the caption “stay tf away from [his hometown].”[39] Police reasoned that he was threatening a warning before engaging in criminal activity that would create a panic/riot. However, neither of the arrested individuals created the story themselves. They reposted a pre-existing Snapchat story.[40] This crucial bit of information was missed. It changes the entire intent of the arrested individuals, showing that they were actually trying to warn friends and family to stay away, not that they were going to incite a riot. Algorithms cannot pick up on contextual factors. The lack of context can mean that individuals are unjustly arrested despite posing no threat or engaging in any illegal activity. This type of surveillance violates the First Amendment since it can cause direct injury, like in Laird v. Tatum, in the form of unjust imprisonment despite not engaging in any illegal activity.[41]

Conclusion

Police monitoring social media constitutes a violation under the First Amendment if it (1) creates a chilling effect on speech, expression, or the free exercise of religion AND (2) if the information gathered from surveillance causes either (a) direct injury OR (b) denial of civil/public benefits UNLESS (3) the surveillance has been discriminately targeted against a religious or racial minority in which case there only needs to be a showing of a chilling effect. The social media surveillance programs monitored by the police can meet this threshold, violating the First Amendment, since these programs create a chilling effect on political speech by minorities and utilize criminal justice sanctions to inflict direct injury against innocent citizens based solely on social media posts. These two uses of the police's monitoring program stand on shaky, unconstitutional ground. As the internet grows to encompass more aspects of daily life and the police continue to expand online monitoring tools, the courts will not be able to ignore this problem. The question is not if the courts will address online surveillance, but when. Without clear guidelines for acceptable monitoring, the rampant potential for abuse and self-censorship is high. The internet, as a whole, may suffer if there is a common perception that everything said online could lead to criminal punishment. It is necessary that the Supreme Court, Congress, or law enforcement departments themselves, set restrictions on online surveillance programs of social media to protect First Amendment rights.

References

[1] U.S. Const. amend. I.

[2] U.S. Const. amend. XIV.

[3] Jay Schweikert, Tenth Circuit Grants Qualified Immunity to Police Who Knowingly Violated the First Amendment, CATO AT LIBERTY (Apr. 12, 2021, 2:04 PM), https://www.cato.org/blog/tenth-circuit-grants-qualified-immunity-police-who-knowingly-violated-first-amendment.

[4] Sidney Fussell, This AI Helps Police Monitor Social Media. Does It Go Too Far?, WIRED (July 6, 2021, 8:00 AM), https://www.wired.com/story/ai-helps-police-monitor-social-media-go-too-far/.

[5] Mary Pat Dwyer, LAPD Documents Reveal Use of Social Media Monitoring Tools, BRENNAN CENTER FOR JUSTICE (Sept. 8, 2021), https://www.brennancenter.org/our-work/analysis-opinion/lapd-documents-reveal-use-social-media-monitoring-tools.

[6] See Baggett v. Bullitt, 377 U.S. 360, 372 (1964).

[7]See Baggett, 377 U.S. at 372.

[8] Id.

[9] Ashley M. Eick, Forging Ahead from Ferguson: Re-Evaluating the Right to Assemble in the Face of Police Militarization, 24 WM. & MARY BILL RTS. J. 1235, 1244 (2016).

[10] Lamont v. Postmaster General of U.S., 381 U.S. 301, 305 (1965).

[11] Id at 307.

[12] Id.

[13] Dearon Dixon, The Chilling Effect of Aggressive Police Responses to Peaceful Protests, 109 KY. L. J. ONLINE (2021), https://www.kentuckylawjournal.org/blog/the-chilling-effect-doctrine.

[14] See also Kia Rahnama, How the Supreme Court Dropped the Ball on the Right to Protest, POLITICO (Aug. 17, 2020, 5:28 PM), https://www.politico.com/news/magazine/2020/08/17/portland-crackdown-freedom-of-assembly-supreme-court-397191. 

[15] Laird, Secretary of Defense, Et Al. v. Tatum Et Al., 408 U.S. 1, 13 (1972).

[16] Id.

[17] Baird v. State Bar of Ariz., 401 U.S. 1, 7 (1971).

[18] Id. at 6.

[19]  Syed Farhaj Hassan, Et Al. v. The City of New York, 804 F.3d 277, 292 (2015).

[20] See Dwyer, supra note 5.

[21] Ibid.

[22] Edwin Chan & Alex Doibuzinskis, U.S. Police Struggle to Uncover Threats on Social Media, REUTERS (Dec. 26, 2014), https://www.reuters.com/article/us-usa-police-socialmedia/u-s-police-struggle-to-uncover-threats-on-social- media-idUSKBN0K40MD20141226.

[23] Kyle Wiggers, AI Weekly: New Poll shows public’s view of facial recognition, DOJ isn’t tracking predictive policing spending, VENTURE BEAT (Mar. 18, 2022, 11:30 AM), https://venturebeat.com/2022/03/18/ai-weekly-new-poll-shows-publics-view-of-facial-recognition-doj-isnt-tracking-predictive-policing-spending/. 

[24] Monica Anderson, Skye Toor, Lee Rainie, & Aaron Smith, Activism in the Social Media Age, PEW RESEARCH CTR. (July 11, 2018), https://www.pewinternet.org/2018/07/11/activism-in-the-social-media- age/.

[25] Id..

[26] Maya Berry & Kai Wiggins, Leaked Documents Contain Major Revelations About the FBI’s Terrorism Classifications, JUST SECURITY (Sep. 11, 2019), https://www.justsecurity.org/66124/leaked-documents-contain-major- revelations-about-the-fbis-terrorism-classifications/; Igor Derysh, Leaked Documents Show FBI Targeted Post-Ferguson “Black Identity Extremists” Over White Supremacists, SALON (Aug. 14, 2019, 10:00 AM), https://www.salon.com/2019/08/14/leaked-documents-show-fbi-targeted-post-ferguson-black-identity- extremists-over-white-supremacists/.

[27] Jana Winter & Hunter Walker, Exclusive: Document Reveals the FBI is Tracking Border Protest Groups as Extremist Organizations, YAHOO NEWS (Sep. 4, 2019), https://news.yahoo.com/exclusive-document-reveals-the-fbi-is-tracking-border-protest-groups-as-extremist- organizations-170050594.html.

[28] Mary Pat Dwyer, Documents Reveal LAPD Collected Millions of Tweets from Users Nationwide,  BRENNAN CENTER FOR JUSTICE (Dec. 15, 2021), https://www.brennancenter.org/our-work/analysis-opinion/documents-reveal-lapd-collected-millions-tweets-users-nationwide.

[29] Id.

[30] Id.

[31] Erica Chenoweth & Jeremy Pressman, This summer’s Black Lives Matter protesters were overwhelmingly peaceful, our research finds, THE WASHINGTON POST (Oct. 16, 2020), https://www.washingtonpost.com/politics/2020/10/16/this-summers-black-lives-matter-protesters-were-overwhelming-peaceful-our-research-finds/.  

[32] Dwyer, supra note 28.

[33] See Elizabeth Stoycheff, Under Surveillance: Examining Facebook’s Spiral of Silence Effects in the Wake of NSA Internet Monitoring, JOURNALISM & MASS COMMUNICATION QUARTERLY 296, 307 (2016).

[34] Id at 301-3.

[35] Jonathon W. Penney, Chilling Effects: Online Surveillance and Wikipedia Use, BERKELEY TECHNOLOGY LAW JOURNAL 119, 161-4 (2016).

[36] Id.

[37] Hassan, 804 F.3d at 292.

[38] Rachel Levinson-Waldman, Private Eyes, They're Watching You: Law Enforcement's Monitoring of Social Media, 71 Okla. L. Rev. 997, 1007–08 (2019).

[39] 2 men accused of inciting riot in social media post, released from jail, KWCH12 (Jun. 3, 2020, 6:10 PM), https://www.kwch.com/content/news/Wichita-police-address-social-media-threat-toward-area-communities-571002331.html.

[40] Id.

[41] Laird, 408 U.S. at 13 (1972).