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every day!Yesterday I got into a discussion with someone about an interesting topic. Apparently, some protesters planned to meet at a book store somewhere in Colorado. The FBI, upon learning this, decided to run all the license plate numbers for the cars in the store's parking lot. She was, probably understandably, bothered by this. My response? Well, maybe it's a little bit 1984, but there's nothing unconstitutional about it. And I think the fact that she didn't tell me what these people were protesting gives me a bit of added clarity on the issue.
Every contra-factual situation (hypothetical) she threw at me to get me to change my mind either elicited the same response or the response that it violated the 4th or the 1st Amendment.
Think about it for a second. There is no 4th Amendment violation. The FBI isn't searching anything, in the constitutional sense. They're only looking through their own records, which they have full right to do. And they're only looking at license plate numbers that are in plain view. They're not interfering with these people's lives by stopping them, so there's no arrest or even a simple stop. So clearly the 4th Amendment isn't violated here.
One hypothetical that particularly bothered me was this: what if the FBI hides somewhere across the street and looks in your window on a full-time basis. This is incredibly bothersome, but they're not searching anything in the constitutional sense. So far as I know, SCOTUS haven't even decided to make this a violation of their generalized "right to privacy." My friend then pointed out that this is a waste of government resources, but so what? That's still not illegal, it's just stupid.
As far as the 1st Amendment, there would only possibly be a violation if the FBI was doing this with the intent of suppressing speech based on viewpoint, and even then I think you have an uphill battle if you take it to court. They have every right to find out if someone has an outstanding warrant for their arrest and to arrest them. Just because you're going to a protest doesn't protect you from crimes that you've committed. I think they also have the right to observe that some groups of speakers are more likely to have criminal records than others and to act accordingly. And they certainly shouldn't be required to blind their eyes to the fact that a particular known criminal is a member of a particular protest group, and those that associate with that criminal may be involved in a joint criminal enterprise.
Sure, I don't want the FBI tracking my every move. But that's not what's going on here. They're only picking either an arbitrary or an incredibly efficient method of looking through their own records. They could certainly look through every fifth name they have in the system, but it's more efficient to look through records when they know where a person is. I don't see any problem with the FBI goig to a Wal-Mart parking lot every day and checking every license plate there. The only way you're going to be harassed here is if you've already committed a crime. Is this a problem? I think not.
Ah, the ole "if you haven't done anything wrong, you have nothing to fear" line.
ReplyDeleteThat's similar to what she said. In cases where the 4th Amendment actually applies, then clearly that's a bad argument. I certainly wouldn't want an officer stopping me without reasonable suspicion or searching me or any of my belongings without probable cause. That's the reason we have the 4th Amendment. But when they're only looking at your car and searching their own records, I see no problem whatsoever.
ReplyDeleteI don't know, Kelly. Just the idea that the FBI might be checking out my license plate number if I were protesting something is intimidating. It would stop me from exercising that right. But then, I scare easily.
ReplyDeleteThat 1st and 4th ammendment argument is just silly. Hippie protesters don't HAVE rights.
ReplyDeleteI'm not sure why that would scare you off, SusieQ, unless you already had a warrant out for your arrest.
ReplyDeleteBut if it does scare you off, as well as a large number of other people, there may be something that they call a "chilling effect" on speech. This still won't be a good argument in court as long as what they're doing isn't aimed at speech.
I do believe you are 100% correct - nothing illegal or unconstitutional about it.
ReplyDeleteHowever, from a policy standpoint, it's a stupid policy. The "public" officials reponsible for it should be fired for their overwhelming stupidity.
Exercising one's consitutional right to dissent (all by itself) CANNOT be an appropriate criterion for initiating an investigation. There is just no good-faith argument in support of the position that people who engage in civil disobedience or protest are more likely to be criminals than anyone else. In fact, a statistical analysis of individuals would probably establish the contrary.
Consequently, the only conclusion one can draw from the practice is that the FBI is seeking to intimidate those who engage in the protest, which is not a legitimate use of police power in a free society.
It'd probably be a riot to see if I have an FBI file, and if so, what's in it ;)
I think I'm mostly with you TG, but I think that conceivably the FBI could have reason to believe that a particular person that they're looking for is a member of a group or that a particular group is likely to have members with criminal records. Take white supremacist groups, for example.
ReplyDeleteOkey-dokey. Guilt (or presumption of possibiity thereof) by association, then?
ReplyDeleteDon't get me wrong - I'm running with your example above. Obviously, anytime law enforcement has a specific reason to think a crime has been committed or that a fugitive is among a group, it's their duty to investigate.
ReplyDeleteRunning license plates, filming crowds during a legitimate exercise of free speech -- that's just a group of overzealous jackasses flexing their muscles.
Sorry, forgot to add:
ReplyDeleteAnd we have *real* threats to our security and real criminals the FBI should be investigating. I certainly hope our public servants on the public payroll aren't using my tax money to conduct surveillance on the "let's stop for a latte at Starbucks once we're done shouting about the war" crowd. What pathetic waste of time and money.
Sorry for showing up late to the party.
ReplyDeleteDoesn't this imfringe the publics right to assemble?
It would seem that getting "blacklisted" because of your license plate or even being abridged from assembling there for fear that you may have the FBI at your doorstep.
imfringe = infringe
ReplyDeleteYeah, I'm not overly fond of the tone of your post and I'd like to clarify a few things..
ReplyDeleteTo begin with, I wasn't intending to engage in a conversation about the constitutionality of license plate checks, I was only expressing indignation at the idea.. I still don't think it's kosher -- it smacks of McCarthyism and the Hoover years..
The facts of the case, as I presented them to you, are as follows: in preparation for a protest in Colorado Springs, several people met at a Denver bookstore a few hours before the event; the FBI went to the bookstore and ran the license plates of several (not all) of the cars in the parking lot. The protesters, incidentally, were engaging in anti-war speech, something that I may not have mentioned because not only do I find the content of the speech to be irrelevant to the discussion, but it wasn't immediately clear from the article precisely what they were planning to protest.
As to the hypotheticals, you know better than that. Analogies are a useful way of testing logical consistency. You've done it to me on numerous occasions, and I fail to see why this is any different..
I think you're looking at this issue from a very narrow perspective; whether or not it violates the Fourth is beside the point (well, the point that I was initially making). It IS quite possibly a violation of the First. You don't need intent on the part of the government to show a violation of free speech, you only need to show a substantial chilling effect and a danger of sustaining direct injury.
Yes, the FBI has the right to go through it's own records and it may even have the right to find out if someone has an outstanding warrant and arrest them, but I don't think it has the right to investigate citizens without some sort of reasonable or articulable suspicion of wrongdoing. And they absolutely cannot just assume that a particular group is engaging in wrongdoing merely because one or more members have engaged in wrongdoing in the past.. The foundation of our criminal justice system is that we wait until someone's actually committed a crime before treating them like a criminal.
The decision to investigate certain groups or individuals isn't arbitrary at all -- it's directed at particular groups and, I would venture, particular viewpoints. And constant monitoring by the police absolutely constitutes harassment, regardless of whether a person has a criminal record or not, but particularly if the government has no reason to suspect the person of wrongdoing.
Stirrings of that most un-American sentiment in my breast (the longing for monarchies lost!), methinks we likes the Queen(pin)!
ReplyDelete: )
(BTW, Moise, that typo wasn't that far off the mark. Before [f] and [v], [n] and [m] become what is called a labio-dental nasal, the IPA symbol for which is [ɱ]. Sorry...occupational debility, knowing these things.)
1. I'm sorry if the tone of the post offended you. I certainly did not intend that.
ReplyDelete2. I could be wrong, but I think that you do need to show some kind of intent when the statutes involved are not aimed at speech. Since the statute involved is probably the enabling statute of the FBI, I think you might have a hard time proving that. Otherwise you need to show a substantial danger of the enabling statute being applied discriminatorily, and here I think you have the same problem.
3. I'm not sure this really qualifies as an "investigation," although that would be an interesting point to explore. They need an "articulable suspicion" only if they want to do a Terry stop (is that the right case?), but they're not even doing that.
4. I also am not seeing any "constant monitoring by the police," although if that were the case you might have a different issue entirely.
5. I agree with you on the undesirability of the behavior involved, but I'm disagreeing on the constitutionality point.
6. Finally, thanks for participating in the discussion!