In this day and age, can the First Amendment sanction police surveillance of protected, non-criminal activity? Put differently, do we want the police spying on people who are not breaking the law? What are the constitutional ramifications of allowing such surveillance? How can injunctions and consent decrees operate to limit police activity, and what is the optimal balance such decrees should strike between the benefits of police protection and the burdens on First Amendment activity?
In this essay, I examine these questions through the prism of the only federal police surveillance case of the last fifteen years, American Friends Service Committee v. City and County of Denver. I first discuss the history of such police surveillance, including the seminal cases from the 1970s and 1980s. These cases, and the consent decrees that resulted from them, effectively banned police surveillance of purely First Amendment activity. However, modifications of those decrees, particularly following 9/11, have undermined their effectiveness and left the state of the law somewhat confused. By examining one case, American Friends, in depth, I attempt to outline how a successful case to restore the protections gained in the 1970s might be litigated in the future.