Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups

Abstract:     
Nov. 5, 2004

This article maintains that the First Amendment-based right of expressive association, interpreted most recently in Boy Scouts v. Dale, 530 U.S. 640 (2000), can protect political and religious associations from intrusive law enforcement investigations that are unrelated to criminal activity. In the wake of September 11, federal and local police departments have renewed their longstanding practice of conducting surveillance and compiling dossiers on groups holding non-mainstream political views. Recently, targeted groups have included mosques and other gatherings of Muslims, as well as those opposed to the war in Iraq.
The article begins with an overview of political surveillance practices in the 20th Century. It next provides a summary of the right of expressive association as it has developed in caselaw. The following section proposes a standard for initiating investigations of First Amendment activity that balances the compelling state interest in investigating potential terrorist activity against the associational rights of political and religious groups. The outcome of this balancing process is a presumption that investigations cannot begin absent a reasonable suspicion of criminal activity. Deployment of this standard would virtually eliminate the problem of intrusive investigations that disrupt organizations and serve no legitimate law enforcement purpose. The article illustrates its analysis with examples of application of the proposed standard.

Unless restrictions are placed on the government's ability to conduct surveillance of First Amendment activity, such surveillance will increase. The article concludes that the proposed constitutional safeguards of protected expressive activity are necessary to avoid harming fragile associational rights in times of national crisis.

Number of Pages in PDF File: 31

Keywords: Political surveillance, first amendment right of association, law and terrorism, associational privacy

Accepted Paper Series