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Documentation of Police Surveillance of First Amendment Activity Marc Stickgold Golden Gate University School of Law, [email protected]

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Documentation of Police Surveillance of First Amendment Activity Marc Stickgold Golden Gate University School of Law, Mstickgold@Gmail.Com Golden Gate University School of Law GGU Law Digital Commons Publications Faculty Scholarship 1978 Chapter 2: Yesterday's Paranoia is Today's Reality: Documentation of Police Surveillance of First Amendment Activity Marc Stickgold Golden Gate University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.ggu.edu/pubs Part of the Constitutional Law Commons Recommended Citation 55 U. Detroil Mercy J. of Urban L. 877 (1978) This Article is brought to you for free and open access by the Faculty Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Publications by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Chapter 2: Yesterday's Paranoia is Today's Reality: Documentation of Police Surveillance of First Amendment Activity MARC STICKGOLD* 1. INTRODUCTION The February 1974 newsletter of the Michigan Association for Consumer Protection (MACP), a small citizens' group, contained a half-page critique of a state senator who was "Chairman of the subcommittee that has power to kill consumer protection bill 4001."1 The critique's author, Walter Benkert, president of MACP, called the contents of the senator's 1973-74 report "garbage," and went on to attack the senator as "support[ing] the business prefer­ ences over the people's need for protection."2 Benkert concluded that House Bill "4001 will either die in committee or become a watered down bill ...."3 The newsletter closed with a verse com­ memorating MACP's recent struggle over mobile home safety and noting the organization's intentions to continue fighting for con­ sumer rights.4 Shortly after the newsletter was issued, a member of the Michi­ gan House of Representatives sent a letter to the director of the Michigan State Police, requesting the director to "note the attached .. Associate Professor of Law & Director of Clinical Programs, Golden Gate University School of Law. B.A., 1960, University of Illinois; J.D., 1963, Northwestern University. The author wishes to extend deepest gratitude to his co-counsel and comrades in this work: Attorneys George Corsetti, Margaret Nichols, and Richard Soble. They are responsible in innumerable ways for whatever good and helpful ideas this Article might contain, as well as for providing the author constant support. 1. MICH. Assoc. FOR CONSUMER PROTECTION, NEWSLETTER, Feb. 1974, at 1. The full four­ page mimeograph newsletter is attached as an appendix to the Complaint for Declaratory and Injunctive Relief in Benkert v. Michigan State Police, No. 74-023-934-AZ (Wayne County Cir. Ct., Mich., filed July 26, 1974). House Bill 4001, the "Michigan Consumer Protection Act," authorized the Attorney General to combat deceptive and unfair trade practices by seeking injunctive relief, restitu­ tion, recovery of investigation costs, and civil penalties. The bill was introduced in the Michigan House on January 10, 1973, was passed by the House as amended, on January ao, 1974, and was passed by the Michigan Senate on December 15,1976. See MICH. COMPo LAWS § 445.901 (Supp. 1977). 2. NEWSLETI'ER, supra note 1, at 1. 3. ld. 4. ld. at 4. 878 JOURNAL OF URBAN LA W [Vol. 55:877 [newsletter] from the Michigan Association for Consumer Protec­ tion, I would like to know what this organization is."s The letter also requested information on Benkert, the MACP president and author of the critique. Less than two weeks later, the Intelligence Section of the Michigan State Police sent a memo to the director. The memo summarized and quoted from the MACP's articles of incorporation (filed with the State Department of the Treasury), and concluded: "We have no information that the group is subversive or violent."6 A copy of this memo found its way to the criticized senator,1 and the matter appeared closed. Thereafter, a member of the MACP discovered that the Michi­ gan State Police had been making inquiries concerning the activi­ ties and political views of the group and its members.8 The result of this revelation was Benkert v. Michigan State Police,9 a suit challenging the legality of such a politically motivated inquiry, as well as attacking the entire "subversive investigations" apparatus of the state police. Following publicity about the suit10 and the police admission that the "inquiry" was "unauthorized,"11 the com­ plaint was amended to greatly expand the suit.12 It has since pro­ ceeded with fourteen plaintiffs as representatives of "a class action which seeks to declare the existence and operation of the Michigan State Police and Detroit Police 'subversive units' illegal and uncon­ stitutional; to enjoin their continued existence and operation; and to enjoin a wide range of illegal and unconstitutional police activ- 5. A copy of the letter sent to Colonel Plants, Director of the Michigan State Police, by Representative Huffman, on February 22, 1974, was also forwarded to the state senator who was the subject of criticism in the MACP newsletter. The letter to Colonel Plants is attached as an appendix to the Plaintiffs' Complaint, supra note 1. 6. This memo is attached as an appendix to Plaintiffs' Complaint, supra note 1. 7. Id. 8. George Corsetti, a member of MACP, indicated, in an interview with the author on March I, 1975, that an official of a state agency concerned with consumer affairs contacted him and related that the state police had inquired ofthe official concerning the political views of the MACP and its members. 9. Benkert v. Michigan State Police, No. 74-023-934-AZ (Wayne County Cir. Ct., Mich., filed July 26, 1974). 10. Detroit Free Press, July 27, 1974, at 3, col. 2; Detroit News, Oct. 20, 1974, at 2B, col. 1; Detroit News, Aug. 29, 1974, at 9A, col. 2. 11. See Answer to Plaintiffs' Complaint for Declaratory and Injunctive Relief, Benkert v. Michigan State Police, No. 74-023-934-AZ (Wayne County Cir. Ct., Mich., filed Aug. 8, 1974) at 3. See also Detroit Free Press, Aug. 24, 1974, at col. 2 Detroit Free Press, Sept. 28, 1974, at 7A, col. 1. 12. First Amended Complaint for Declaratory and Injunctive Relief, Benkert v. Michi­ gan State Police, No. 74-023-934-AZ (Wayne County Cir. Ct., Mich., filed Apr. 8, 1975) Ihereinafter cited as First Amended Complaint]. The expansion of the lawsuit to include the Detroit Police Dep't was the result of investigation by plaintiff's counsel which revealed facts indicating extensive political surveillance by the Detroit Police. 1978) POLICE SURVEILLANCE 879 ity."13 The complaint further alleged that this spy apparatus oper­ ated primarily against those who expressed "political, economic, religious, social or other unpopular or critical views" in "lawful, peaceful and constitutionally protected" ways.14 That criminality was not the focus of this police surveillance was explicitly alleged. 15 The specific factual allegations by plaintiffs in Benkert were wide ranging, encompassing numerous police illegalities in addition to the allegation that the state police served as political police for a state legislator .16 The complaint asserted numerous violations of the United States and Michigan constitutions and laws, and sought wide-ranging relief. 17 The most significant thrust of the complaint focused on first amendment rights and values. It asserted that un­ less relief were granted, rights of freedom of speech, freedom of press, freedom of assembly, freedom of association, freedom to petition ... government ... [and] right to privacy ... will continue to be infringed, threatened, impeded, penalized, and other­ wise interfered with by defendants. .18 Additional constitutional and statutory questions were raised by the allegations, but it is the first amendment issues that are pertinent to the analysis undertaken in this Article. This Article in no way intends to litigate vicariously the signifi­ cant issues raised in Benkert. The brief discussion of that case is to provide some background for an understanding of the empirical study and analytical discussion that follows. It is hoped that this Article will help relieve the first amendment dilemma posed by secret police intelligence apparatuses through a study and analysis of over seven hundred pages of police political intelligence docu­ ments obtained through discovery in Benkert. II. JUDICIAL COMMENT ON POLITICAL SURVEILLANCE Before proceeding to the study and analysis of police political intelligence documents, consider the present first amendment di­ lemma posed by police surveillance of political activity. Judicial examination of first amendment values involved in political intellig­ ence gathering has been called inadequate by an earlier commenta- 13. First Amended Complaint, supra note 12 at 111. 14. [d. 11 22B. 15. [d. 16. [d. 11 30-78. 17. [d. 11 79. 18. [d. 880 JOURNAL OF URBAN LA W [Vol. 55:877 tor.19 In discussing only one aspect of the intelligence gathering pro­ cess, that commentator concluded that "police use of undercover agents has been considered in only the most superficial fashion."20 The passage of a few years, the Supreme Court decision in Laird v. Tatum,21 and the post-Watergate cases22 do not detract from the validity of this conclusion. In a flurry of activity beginning with Anderson v. Sills,23 in 1969, courts have been confronted with many first amendment con­ cerns of political surveillance and dossier maintenance. The Su­ preme Court provided its primary comment on this subject in 1972, with Laird v. Tatum. 24 By 1975, three additional significant opin­ ions had been added-Philadelphia Yearly Meeting v. Tate, 25 Socialist Workers Party v. Attorney General,26 and White v. Davis. 21 The "first major court test"28 of a political intelligence appara­ tus was in Anderson v. Sills,29 a case raising issues "on the perimeter of first amendment doctrine."30 It involved the "right-or-wrong of the police to maintain dossiers on political dissidents."31 In April 1968, New Jersey Attorney General Sills issued a mem­ orandum entitled, "Civil Disorders-The Role of Local, County, and State Government," to municipal and county officials within 19.
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