The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Governmental infiltration of political groups can obviously deter people from joining groups that they think might be infiltrated, and deter them from speaking freely within those groups. The Court in Laird v. Tatum (1972) rejected the argument (largely on procedural grounds) as a basis for challenging such surveillance in federal court, but Justice Douglas dissented, arguing in part:
This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment.
Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage.
The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government.
There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is in the image which Jefferson and Madison designed, but more in the Russian image ….
Here, though, is a different approach, from Justice Douglas's dissent in Dennis v. United States (1951), where Justice Douglas argued against criminal punishment of Communist Party leaders, partly on the grounds that their fomenting of revolution would fail precisely because of surveillance:
If we are to proceed on the basis of judicial notice, it is impossible for me to say that the Communists in this country are so potent or so strategically deployed that they must be suppressed for their speech. I could not so hold unless I were willing to conclude that the activities in recent years of committees of Congress, of the Attorney General, of labor unions, of state legislatures, and of Loyalty Boards were so futile as to leave the country on the edge of grave peril. To believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible.
It is safe to say that the followers of the creed of Soviet Communism are known to the F.B.I.; that in case of war with Russia they will be picked up overnight as were all prospective saboteurs at the commencement of World War II; that the invisible army of petitioners is the best known, the most beset, and the least thriving of any fifth column in history. Only those held by fear and panic could think otherwise.
This is my view if we are to act on the basis of judicial notice. But the mere statement of the opposing views indicates how important it is that we know the facts before we act. Neither prejudice nor hate nor senseless fear should be the basis of this solemn act. Free speech— the glory of our system of government—should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent. On this record no one can say that petitioners and their converts are in such a strategic position as to have even the slightest chance of achieving their aims.
So surveillance can deter speech—but it can also protect speech, by becoming the "less restrictive alternative" that lets us tolerate speech that promotes violence (and revolution or sabotage) while still having confidence that we can largely stop the actual violence. Both of Justice Douglas's analyses, it seems to me, are right, at least to a point and in certain circumstances. But reading them together shows how complicated such questions can be.