Last summer’s anti–police brutality protests represented the largest mass demonstration effort in American history. Since then, law enforcement departments nationwide have faced intense scrutiny for how they policed these historic protests. The repeated, egregious instances of violence against journalists and protesters are well documented and have driven widespread calls for systematic reform. These calls have focused in part on surveillance, after the police used sophisticated social media data monitoring, commandeered non-city camera networks, and tried other intrusive methods to identify suspects.
But in Oregon, the Portland Police Bureau went a step further in its innovation: It broadcast its surveillance publicly, in real time, by livestreaming protests on social media. According to a lawsuit filed by the ACLU, PPB hosted a video on YouTube and on its official Twitter feed—which has more than 230,000 followers—on at least three occasions. PPB allegedly zoomed in to focus on individual protesters’ faces, making them easily identifiable and vulnerable to surveillance technologies such as facial recognition software, which law enforcement used to identify a protester in D.C.’s Lafayette Square and, reportedly, many of the insurrectionists who stormed the Capitol on Jan. 6. PPB first justified its public livestreaming on the grounds that it was necessary to provide “situational awareness” and to record possible criminal activity, and later “so the community could understand what was occurring at the protest.” But an Oregon court quickly forbade the livestreams, based on Oregon law and a local consent decree.
Courts have generally not been receptive to chilling-effect claims based solely on law enforcement collection of intelligence at protests.
The case raises an interesting constitutional question as to whether, in the absence of local laws like Oregon’s, the First Amendment would prohibit public broadcasting by law enforcement of public protest activity. While no court has considered the issue, the First Amendment is generally understood to allow individuals to engage, associate, and communicate with others for purposes of political expression without being surveilled by the government. In 1958’s NAACP v. Patterson, the Supreme Court held that the state could not compel the NAACP to disclose a list of its members and agents, including names and addresses. The court reasoned that the “inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” It subsequently deployed the First Amendment as a shield against governmental collection of information, most notably in cases dealing with the monitoring and regulation of mid–20th century political activists. These cases set forth a clear doctrinal rule that government action may not impermissibly chill the exercise of First Amendment rights, directly or indirectly, through surveillance.
There is, however, an important caveat to this rule as it relates to protest surveillance. In 1972’s Laird v. Tatum, the Supreme Court held that gathering information at demonstrations for law enforcement purposes did not inhibit the exercise of protesters’ First Amendment rights. Laird concerned an Army surveillance program instituted in the wake of protests in Detroit in 1967 and around the country following the assassination of Martin Luther King Jr. the following year. The program documented attendance of public protest meetings by Army intelligence agents who wrote reports that included attendance records and speaker identities. The information was shared with other law enforcement agencies, but not the general public. The court rejected a First Amendment chilling effect challenge, explaining that “the mere existence … of a governmental investigative and data-gathering activity” did not constitute a cognizable First Amendment harm because the activity had a legitimate governmental purpose. Since Laird, the courts have generally not been receptive to chilling-effect claims based solely on law enforcement collection of intelligence at protests.
But subsequent lower court decisions suggest that public livestreaming of protests might be meaningfully different than the surveillance activity the court sanctioned in Laird. Crucially, the Laird calculus changes when law enforcement shares the fruits of its surveillance with the general public. For example, the 3rd Circuit Court of Appeals has held that the Philadelphia Police Department could compile detailed files on protesters, but it could not broadcast on network television the protesters’ identities or the information contained in their files. The court emphasized that the primary concern was whether publicization of the information might cause protesters to self-censor.
Police livestreaming might cause protesters to self-censor by leaving protests or cause potential protesters to self-censor by not showing up at all. By intentionally zooming in to individual protesters’ faces, the Portland livestreams made the individuals easily identifiable. Geometric data could easily be captured and cataloged by members of the public, creating an open database of protestors. The website Faces of the Riot did just that after the Jan. 6 insurrection, using open-source machine learning and facial recognition software to publish a browsable lineup of 6,000 faces. The lineup does not distinguish between the insurrectionists who stormed the Capitol and the peaceful protesters who attended only the preceding rally.
In the NAACP case, the Supreme Court recognized multiple ways that public identification can chill expressive activity. One is the threat of retaliation by private employers based on the protesters’ beliefs. Except in select jurisdictions, private sector employees have only limited protections against discipline or termination on the basis of their participation in political protests. Such recourse by employers is not merely hypothetical. In 2017, dozens of employees nationwide were fired for participating in an immigration-related protest. And a Taco Bell employee was fired in 2020 after wearing a mask supportive of the Black Lives Matter protests to work.
Another important issue is the threat of violence against identified protesters. That concern remains disturbingly present today. Private militias made appearances at more than 50 Black Lives Matter protests in 2020, leading to 64 assaults, 38 vehicle assaults, and nine cases of shots fired at demonstrators resulting in three deaths. According to experts, these militias see themselves as extensions of local law enforcement. More troublingly, they have repeatedly engaged in violence with counterprotesters while police watched and did not intervene. The combination of militia presence and violence along with law enforcement’s apparent tacit support has had substantial chilling effects on expressive activity. A July protest in Utah was canceled due to the perceived threat of the frequent presence of armed militia members at protests in the state. And in rural Oregon, 70 armed men dissuaded people from joining a demonstration.
There are, of course, countervailing considerations. Police might have a legitimate interest in showing what protests look like from its perspective to help citizens understand the difficult, chaotic circumstances officers sometimes face in the line of duty. This interest, however, is likely better served by journalists, who have extensive experience covering protests and providing objective accounts in a manner that does not readily subject protesters to private retaliation. Officers might respond that the media neglects to adequately cover violent or criminal acts committed by protestors. But studies show that journalists have been found to historically overcover instances of violence relative to peaceful conduct, at least at certain types of protests. And law enforcement remains free to convey to the public the difficulties officers face at protests in myriad other ways, like publicizing the number of arrests made, the underlying charges, and the extent of any officer injuries or property damage suffered.
One might also wonder whether a constitutional limitation on police livestreaming would have much practical effect, given the ubiquity of livestreaming by protesters and citizen observers. After all, the Faces of the Riot project was compiled solely using videos posted to the now-defunct Parler app by the protesters and insurrectionists themselves. But the First Amendment regularly prevents government from doing things that citizens can do freely. Even so, Jan. 6 was something of an exception: As some commentators have pointed out, the extensive amount of documented self-identification on social media was likely due to the fact that the insurrectionists considered themselves heroes and wanted to be recognized as such. Livestreams don’t typically set out to intentionally identify individual protestors by zooming in on specific faces for prolonged periods. Indeed, advocacy groups discourage livestreamers and journalists from highlighting individuals. And protesters often self-police livestreamers and media alike, using a variety of techniques to prevent and punish those who focus on demonstrators’ faces.
Protesters might well fear that law enforcement livestreams could subject them to retaliation at work or to threats or violence by militias, particularly in rural areas where viewers might be more likely to identify fellow community members. If these fears are objectively reasonable and dissuade people from engaging in protests, the Constitution should offer protection. As the Supreme Court has recognized, the First Amendment demands that “the price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.”
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.
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