FBI Manual: Diminishing First Amendment Rights is Acceptable
The text of the newly revised FBI Manual is out; here’s a snippet from the manual regarding the First Amendment. You know, that bit in the Constitution of the United States having to do with “freedom of speech”:
The First Amendment states:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people to peaceably assemble, and to petition the Government for redress of grievances.
Although the amendment appears literally to apply only to Congress, the Supreme Court made it clear long ago that it also applies to the activities of the Executive Branch, including law enforcement agencies. Therefore, for FBI purposes, it would be helpful to read the introduction to the first sentence as: “The FBI shall take no action respecting…” In addition, the word “abridging” must be understood. “Abridging,” as used here, means “diminishing.” Thus, it is not necessary for a law enforcement action to destroy or totally undermine the exercise of First Amendment rights for it to be unconstitutional; significantly diminishing or lessening the ability of individuals to exercise these rights… is sufficient.
Hey, that sounds pretty good, doesn’t it? The FBI seems to be fully on board in its commitment to civil liberties. But that “seems to be” is really the sticky bit. Notice the ellipsis in the last quoted sentence? I left out a few words. Let me reinsert them and let the FBI manual continue:
Thus, it is not necessary for a law enforcement action to destroy or totally undermine the exercise of First Amendment rights for it to be unconstitutional; significantly diminishing or lessening the ability of individuals to exercise these rights without an authorized investigative purpose is sufficient.
This is not to say that any diminishment of First Amendment rights is unconstitutional. The Supreme Court has never held that the exercise of these rights is absolute.
So the FBI some diminishment of your constitutional rights is acceptable. And the FBI has already hinted about when the diminishment of First Amendment rights is acceptable: when there is “an authorized investigative purpose.” Let’s keep reading:
In fact, the Court has set forth realistic interpretations of what level and kind of government activity actually violates a First Amendment right. For example, taken to an extreme, one could argue that the mere possibility of an FBI agent being present at an open forum (or an on-line presence) would diminish the right of free speech by, for example, an anti-war protestor because he/she would be afraid to speak freely.
The FBI might as well have written a letter to Ann Landers, “I have this friend, see, and this friend goes undercover to anti-war meetings…”. The manual continues:
The Supreme Court, however, has never found an “abridgement” of First Amendment rights based on such a subjective fear. Rather, it requires an action that, from an objective perspective, truly diminishes the speaker’s message or his/her ability to deliver it (e.g., pulling the plug on the sound system).
So short of pulling the plug on a sound system, the FBI concludes that its presence in online forums or at anti-war meetings really isn’t abridging the First Amendment rights to free speech and free assembly. The FBI continues, discussing the Attorney General’s Guidelines for Domestic FBI Operations (AGG-Dom) and introducing new conditions for diminishing citizens’ First Amendment rights to free speech and free assembly, the “sole purpose” and the “authorized purpose”:
As stated above, the AGG-Dom prohibits investigative activity for the sole purpose of monitoring the exercise of First Amendment rights. The import of the distinction between this language and the actual text of the First Amendment language is two-fold: (i) the line drawn by the AGG-Dom prohibits even “monitoring” the exercise of First Amendment rights (far short of abridging those rights) as the sole purpose of FBI activity; and (ii) the requirement of an authorized purpose for all investigative activity provides additional protection for the exercise of Constitutionally protected rights.
Newly released FBI replies to Senate Judiciary Committee questions also place high priority on the notion that if the FBI isn’t only interested in monitoring people’s speech and assembly habits, and if FBI agents have authorization from their supervisors, then it’s acceptable for the FBI to go ahead and monitor people’s speeches and assemblies. (Look for a post on this topic later in the morning).
Just in case you didn’t get the drift that the FBI considers it acceptable to “diminish” Americans’ ability to engage in free speech, let’s hear it from the FBI again:
The exercise of free speech includes far more than simply speaking on a controversial topic in the town square. It includes such activities as carrying placards in a parade, sending letters to a newspaper editor, posting a web site on the Internet, wearing a tee shirt with a political message, placing a bumper sticker critical of the President on one’s car, and publishing books or articles. The common thread in these examples is conveying a public message or an idea through words or deeds. Law enforcement activity that diminishes a person’s ability to communicate in any of these ways may interfere with his or her freedom of speech — and thus may not be undertaken by the FBI solely for that purpose.
The accumulation of caveats here could clog a river. As long as it is not “solely for that purpose” and contains “an authorized purpose” short of “pulling the plug on the sound system,” then the FBI considers it acceptable to engage in actions that involve “diminishment” of your First Amendment rights to free speech and assembly. As long as FBI agents are doing something else as well and have orders from the office, it’s all right by the FBI.