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Analysis

Police Infiltration of Protests Undermines the First Amendment

Protests against police brutality haven’t just been met with excessive force, they’ve also seen improper police surveillance that chills the right to free speech and assembly.

August 4, 2020

The protests that followed the police killing of George Floyd in late May promp­ted alleg­a­tions of infilt­ra­tion by out-of-state anti-fascist agit­at­ors (which have been refuted) and white suprem­acists (which have been borne out). But little atten­tion has been paid to a third group of infilt­rat­ors: police. As with so many other police prac­tices that are now coming under scru­tiny, the long­stand­ing prac­tice of using under­cover police to monitor protests and protest move­ments should be closely examined — and recon­sidered.

There is solid evid­ence that police infilt­rated the recent demon­stra­tions. A North Dakota officer posed as a protester, photo­graphed activ­ists, and yelled “F**k the police” while check­ing for guns at a Black Lives Matter protest in Fargo. Under­cover officers disguised as Ortho­dox Jews atten­ded anti-racism protests in New Jersey. The Texas Depart­ment of Public Safety outright acknow­ledged embed­ding under­cover officers in the protests to root out “crim­in­als.”

The idea, ostens­ibly, is that plain­clothes officers can over­hear people conspir­ing to commit viol­ence or other illegal acts and disrupt their plots. But this rationale falls apart on closer exam­in­a­tion. The notion that there were coordin­ated plans to engage in illegal activ­ity turns out to be false. An internal Depart­ment of Home­land Secur­ity intel­li­gence assess­ment found that most of the viol­ence at protests has been commit­ted by oppor­tun­ists inter­ested in loot­ing, not agit­at­ors or extrem­ists.

The bene­fits of infilt­ra­tion are thus spec­u­lat­ive at best. On the other hand, there are proven down­sides. Indeed, under­cover officers some­times initi­ate or enable viol­ence between police and protest­ers, further escal­at­ing the already-viol­ent poli­cing of dissent — a prob­lem that is partic­u­larly pertin­ent for anti-police brutal­ity and Black-led protests, which meet espe­cially force­ful resist­ance from law enforce­ment.

Addi­tion­ally, the history of police infilt­ra­tion is one of the govern­ment dispro­por­tion­ately target­ing progress­ive activ­ists and move­ments — some­times even going so far as to gin up viol­ence as justi­fic­a­tion for scru­tiny — rather than keep­ing protest­ers safe.

Take, for instance, the FBI’s Counter Intel­li­gence Program, known as COIN­TELPRO. From 1956 to 1971, it targeted groups that the govern­ment deemed subvers­ive, with meth­ods includ­ing uncon­sti­tu­tional surveil­lance and infilt­ra­tion. Included in its mission were efforts to “expose, disrupt, misdir­ect, discredit, or other­wise neut­ral­ize the activ­it­ies” of the Black Panthers and other Black nation­al­ist groups. COIN­TELPRO was designed expli­citly to target Black activ­ists because of their polit­ical stances. One of its igno­min­ies involved an FBI inform­ant provid­ing Black Panthers with sticks of dynam­ite to blow up the Statue of Liberty.

Or take the more recent example of the protests surround­ing Pres­id­ent Trump’s inaug­ur­a­tion. As part of an invest­ig­a­tion into a poten­tial conspir­acy to foment viol­ence, police officers infilt­rated a small group called Disrupt J20 that was plan­ning meet­ings for the demon­stra­tions. They followed up by arrest­ing more than 200 anti-capit­al­ist and anti-fascist activ­ists, journ­al­ists, and legal observ­ers en masse, simply because the indi­vidu­als were in the vicin­ity of acts of prop­erty damage. The result­ing prosec­u­tions cases ended in mistri­als, dismissals, and acquit­tals over the next 18 months. And while law enforce­ment agen­cies focus their infilt­ra­tion on the advocacy of left-lean­ing groups, Black protest­ers, and Muslims, they continue to pay insuf­fi­cient atten­tion to the United States’ many viol­ent white suprem­acist threats.

Police infilt­ra­tion of protests also has a chilling effect on protest­ers’ First Amend­ment rights. Fear of plain­clothes police join­ing protests to surveil activ­ists, the danger to undoc­u­mented immig­rants of Immig­ra­tion and Customs Enforce­ment officers’ attend­ance at protests, the pres­ence of agents-provocateur, and the result­ing distrust of one’s fellow protest­ers all discour­age would-be march­ers from parti­cip­at­ing.

These signi­fic­ant risks and harms outweigh any marginal bene­fit that might accrue from police infilt­ra­tion, at least as it has been prac­ticed up to now. It is appar­ent that the use of under­cover officers at protests needs to be revis­ited.

At a minimum, there should be more trans­par­ency and account­ab­il­ity accom­pa­ny­ing the use of under­cover police in protests. One model for this is the wave of surveil­lance over­sight legis­la­tion being passed across the nation, most recently in the form of the POST Act in New York City. The meas­ure will require the New York City Police Depart­ment to disclose basic inform­a­tion about the surveil­lance tools it uses, the deploy­ment of those tools, and safe­guards for New York­ers’ civil liber­ties. Analog­ous legis­la­tion requir­ing police depart­ments to develop and share policies regard­ing infilt­ra­tion oper­a­tions, includ­ing specific protec­tions for protest­ers’ First Amend­ment rights, could increase their account­ab­il­ity to the communit­ies they are inten­ded to serve.

A more far-reach­ing approach would be to adapt and expand the recom­mend­a­tions of the Church Commit­tee — a Senate panel that invest­ig­ated the abuses of vari­ous intel­li­gence author­it­ies, includ­ing COIN­TELPRO — by law enforce­ment. The recom­mend­a­tions in the commit­tee’s land­mark 1976 report focused on rais­ing the threshold for intel­li­gence collec­tion by shift­ing the focus from asso­ci­ation and advocacy to demon­strated danger­ous conduct. A similar approach could be adop­ted in the context of police infilt­ra­tion of protests — for instance, by limit­ing its use to cases in which there is a preex­ist­ing invest­ig­a­tion based on facts that support reas­on­able suspi­cion of crim­inal activ­ity.

It is not clear, however, that rais­ing the threshold would solve the prob­lem. In Wash­ing­ton, DC, the 2004 First Amend­ment Rights and Police Stand­ards Act already requires police to obtain clear­ance from top police offi­cials, along with evid­ence of a threat of viol­ence, for infilt­ra­tion of advocacy groups — and those meas­ures did not prevent the J20 debacle. And the city’s auditor had previ­ously raised concerns about police noncom­pli­ance with the law.

A broader solu­tion is to simply prohibit plain­clothes police from attend­ing protests. Using under­cover police in connec­tion with protests and protest move­ments can only further under­mine trust between law enforce­ment and communit­ies at a time when that trust has already been badly eroded by repeated, high-profile instances of racial­ized police brutal­ity. Whatever the merits and draw­backs of under­cover oper­a­tions in other settings, protests are one context where people should feel free to come together and express them­selves without fear of surrepti­tious law enforce­ment monit­or­ing.