The Flawed Foundations of Article III Standing in Surveillance Cases (Part IV)
In my first three posts, I’ve opened a critical discussion of Article III standing for plaintiffs challenging government surveillance programs by introducing the 1972 Supreme Court case of Laird v. Tatum. In today’s post, I’ll examine the Court’s decision itself, which held that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.
It didn’t take long for courts to embrace Laird as a useful tool to dismiss cases where plaintiffs sought to challenge government surveillance programs, especially where the complaints rested on a First Amendment chill from political profiling by law enforcement. Some judges took exception to a broad interpretation of Laird, but objections largely showed up in dissenting opinions. For the most part, early interpretations of Laird sympathized with the government’s view of surveillance claims.
For example, about a month after the Supreme Court handed down its decision denying Article III standing to the plaintiffs in Laird, the United States Court of Appeals for the Fourth Circuit cited the decision in a case involving the open surveillance of demonstrations and meetings by the Richmond, Virginia police, which included the photographing of participants for the purposes of establishing and maintaining police files, which were then shared with other law enforcement agencies. The plaintiffs in Donohoe v. Duling, 465 F.2d 196 (4th Cir. 1972), objected to the police surveillance, arguing that the presence of police officers and use of police photographers violated their First Amendment rights by inhibiting their ability to freely speak and associate. The Richmond police argued that they had a duty to “know who the leaders (of the demonstrations) are” in order to determine whether any demonstrators were “dangerous.” The police further pointed out that they only attended meetings held on public streets and spaces, and did not attend a series of protest meetings held at a local church (although they did park a police car outside the church to take photographs of everyone entering and leaving the meeting).
The Donohoe plaintiffs asserted that, despite (and because of) the fact that the Richmond police were conducting their surveillance in the open, participation in these demonstrations and meetings was chilled. The court, however, disagreed, observing that the plaintiffs made no claims that could provide a basis for standing, and stated that just because the police presence and photography made the participants “nervous” or “frightened” was not enough to establish any First Amendment harms under Laird. The court also dismissed the testimony of a meeting attendee who stated that the FBI told his employer that he had participated in a demonstration, stating that “[i]t is common knowledge … that the FBI maintains its own surveillance of demonstration groups” and there was “no evidence that the FBI had actually secured this information from the Richmond police department.” The Donohoe court cited Laird, holding that standing cannot arise “merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” To put it plainly, “allegations of a subjective ‘chill’” from the presence of government agents photographing meeting participants for inclusion in police files “will not suffice.”
Not every judge agreed with this interpretation. In Fifth Ave. Peace Parade Committee v. Gray, 480 F.2d 326 (2d Cir. 1973), Judge James Oakes dissented from the majority opinion following Laird, observing in rather understated tones that “[t]here has been detected a tendency in recent times to justify invasion of constitutional rights on the basis of national security.” These rights, which include the “right . . . peaceably to assemble, and to petition the Government for a redress of grievances . . . necessarily implied a right to freedom in political associations.” Judge Oakes floated the premise that
a group, even a huge group, of people who want to go to the seat of government to protest a war and who do so peaceably have the right not to have their name (and hence their views against the administration of the Congress or the courts or the policies of any in relation to the war) listed in some dossier or table or catalog of protesters and disseminated throughout all the major branches of the ‘security system’ of the United States.
Judge Oakes distinguished Laird on the basis that the Supreme Court’s decision should be “narrowly limited to general surveillance without specific misuse of data.”
That is to say, the Laird majority, Judge Oakes’s words, “seriously underestimated the size and scope of [government] intelligence activities which included gathering public and private information on hundreds of thousands of ‘politically suspect’ persons,” and might have decided differently had they the benefit of Senator Ervin’s hearings and “Watergate-allied events” at the time of their decision. One could make an argument that the Burger Court would not have decided differently in Laird, even if the caustic repercussions of COINTELPRO, Watergate, and the many post-Cold War government intelligence abuses were made public at the time. But perhaps we should take a page from the Obama Administration, and “look forward, not backward”–we should be asking these same questions of the Roberts Court. In that spirit, I will conclude this series with a look at Laird‘s influence on post-Snowden surveillance cases.