Hayden White, a professor of history at UCLA, filed an action against Edward Davis, Chief of Police of the City of Los Angeles. The suit alleged that Chief Davis sent police officers sent UCLA where they registered as students and sat in classrooms for the purpose of recording what the professors were saying. These officers also joined student body organizations, attended meetings, and reported to Chief Davis who attended the meetings and who said what to whom. In essence, the LAPD was conducting a regular, ongoing covert surveillance operation of university classes and student organizations and was compiling police dossiers on matters which pertained to no illegal activity.
Chief Davis demurred to the complaint on the ground that past judicial decisions authorized the "intelligence gathering" that he had ordered the officers to engage in at UCLA.
Is Such Conduct, Under The California Constitution, Lawful?
"The gist of Chief Davis's position, as we understand it, is that the gathering of intelligence information to enable the police to anticipate and perhaps prevent future criminal activity is a legitimate and important police function and consequently that under all circumstances the police may routinely utilize undercover agents to fulfill such a function.
The inherent legitimacy of the police `intelligence gathering' function does not grant the police the unbridled power to pursue that function by any and all means. The permissible limits of such activity are circumscribed by the federal Bill of Rights and the comparable protections of our state constitution. As Professor White notes, `One of the central elements of the history of liberty in Western societies since the days of the Greek city states has been the struggle to install limits on the powers of political and religious authorities to place individuals and private groups under surveillance against their will. The whole network of American constitutional rights was established to curtail the ancient surveillance claims of governmental authorities.'
Unlike the cases based on Fourth Amendment violations, this case is based on the First Amendment. This is the first instance in which a court has confronted the issue of freedom of speech in relation to an ongoing police surveillance of a university community.
As a practical matter, the presence in a university classroom of undercover officers taking notes to be preserved in police dossiers must inevitably inhibit the exercise of free speech both by professors and students. The Supreme Court of the United States has repeatedly recognized that to compel an individual to disclose his political ideas or affiliations to the government is to deter the exercise of First Amendment rights. For example, in Sweezy v. New Hampshire, the state attorney general asked a professor: "What was the subject of your lecture?" "Didn’t you tell the students that socialism was inevitable in America?" The Supreme Court rejected the governmental intrusion into the intellectual life of the university.
The crucible of new thought is the university classroom. Once we expose the teacher or student to possible future prosecution for the ideas he may express, we forfeit the security that nourishes change and advancement. The censorship of totalitarian regimes is but a step removed from the surveillance of free discussion in the university. (The same concept was rejected in the case of police infiltrating Union meetings in an attempt to obtain information relating to possible future incidents of violence. Local 309 v. Gates; likewise a similar scheme was conducted by NYPD officers standing in adult bookstores.)
In November 1972, the people of California amended their constitution to include "the right to privacy" as an inalienable right protected against government intrusion. The moving force behind the provision was the concern that, there is an accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. `The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms. Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create cradle to grave profiles of every American. At present there are no effective restraints on the information activities of government and business.'
The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our home, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communication and our freedom to associate with the people we choose. It prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarrass us.
Here the police activity in question constitutes government snooping in the extreme. It is unprecedented in our nation's history. The English historian, Sir Thomas Erskine May, writing in the 19th century, observed: `If our steps are tracked by spies and informers, our words noted down for crimination, our associates watched as conspirators—who shall say we are free?'"
Forty years later here we are: Over one million Americans have security clearances to operate computer networks to construct dossiers on the remaining 399 million of us. The Government—on the claim of "national security"—sweeps up the records of our telephone calls, our email communications, our bank records, our employment records, our health records, and it sends spies into our churches, our schools, and the political associations we attend. All of this done, the Government admits, in order that, once it gets a whiff that someday, somehow, somewhere something bad might happen, it can sift through this mass of data looking for suspects to come down on.
The Government's agents, including those we have elected to sit in Congress, claim that this practice has resulted in recent years in the foiling of "fifty four plots to commit terrorist acts against Americans." Yet, no one has pressed these people to identify exactly what the facts of these "plots" were. That this is pure fabrication on the part of these people is proved by the fact that not one individual has appeared in an American trial court as a defendant charged with such a "plot." Government, as Eskrine said, is by its nature compelled to snoop and spy on its subjects in order to protect, not its subjects but itself. The Orwellian world is upon us.