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From Stavridanoudakis v. U.S. Dep't of Fish & Wildlife, decided Friday by Judge Lawrence J. O'Neill (E.D. Cal.):

The Migratory Bird Treaty Act ("MBTA") codifies the protections of migratory birds as outlined in various conventions between the United States and four foreign countries: Canada, Mexico, Japan, and Russia. The MBTA only applies to migratory birds native to the United States, which includes several types of Falconiformes (vultures, kites, eagles, hawks, caracaras, and falcons) and Strigiformes (owls). The MBTA authorizes the Secretary of the Interior ("Secretary") to adopt suitable regulations to determine, inter alia, when, and to what extent, it may be permissible to hunt, take, capture, possess, sale, and transfer protected birds, bird parts, nests, and eggs.

Pursuant to the authority of the MBTA, the Secretary promulgated regulations to regulate falconry standards and falconry permitting . 50 C.F.R. 21.29(f)(9)(i) prohibits photographing or filming falconry raptors for "movies commercials, or in other commercial ventures." 50 C.F.R. 21.29(f)(9)(ii) prohibits falconers from photographing or filming their birds for "advertisements; as a representation of any business, company, corporation, or other organization; or for promotion or endorsement of any products, merchandise, goods, services, meetings, or fairs"unless the promotion or endorsement is of "a nonprofit falconry organization or association" or "products or endeavors related to falconry."

50 C.F.R. 21.29(f)(8)(v) dictates that during conservation education programs, falconers "must provide information about the biology, ecological roles, and conservation needs of raptors although not all of these topics must be addressed in every presentation."

In Count III of the FAC, Plaintiffs claim that 50 C.F.R. 21.29(f)(9)(i) is a content-based restriction that violates the First Amendment. Section 21.29(f)(9)(i) states "You may not use raptors to make movies, commercials, or in other commercial ventures that are not related to falconry."

In Count IV, Plaintiffs contend that 50 C.F.R. 21.29(f)(9)(ii) is an unconstitutional restriction on commercial speech. ECF No. 16 at 15-16. 50 C.F.R. 21.29(f)(9)(ii) states that falconers may not use their raptors for "commercial entertainment; for advertisements; as representation of any business or for promotion of any products [or] services with the following exceptions: (A) to promote a nonprofit falconry organization [and] (B) to promote products related to falconry ."

In Count V, Plaintiffs challenge 50 C.F.R. 21.29(f)(8)(v) which requires falconers giving conservation education programs to provide "information about the biology, ecological roles, and conservation needs of raptors."

In Count VI, Plaintiffs challenge the prohibitions on charging fees that exceed the amount required to recoup costs under 50 C.F.R. 21.20(f)(8)(iv).

The Supreme Court has recognized that various forms of entertainment and visual expression are purely expressive activitiesincluding movies. Therefore, 50 C.F.R. 21.29(f)(9)(i)'s restrictions on movies and 21.29(f)(9)(ii)'s restriction on commercial entertainment go beyond restricting expressive conduct and restrict purely expressive activity.

The restriction compelling the content of falconers' conservation education program under 50 C.F.R. 21.29(f)(8)(v) is clearly a content-based restriction because it explicitly restricts the topic of the speech that can be discussed: "you must provide information about the biology, ecological roles, and conservation needs of raptors ." The regulation unequivocally discriminates based on the topic of the educational presentation.

"A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991). 50 C.F.R. 21.29(f)(8)(iv) limits the fee that falconers can charge when giving a conservation education program. Therefore, this regulation imposes a financial burden on falconers depending on the content of their presentation.

The Federal Defendants do not argue in the motion to dismiss that the regulations restrict excludable speech (i.e. obscenity), or that the regulations are valid time, place, and manner restrictions. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). It is inconsequential that falconers could merely use nonnative raptors to engage in the prohibited activities. Because the restrictions are content based, they are not subject to reasonable time, place, and manner restrictions. Id. (the government may impose reasonable time, place, and manner restrictions, provided the restrictions are justified without reference to the content of the regulated speech). The Federal Defendants provide no such support that the restriction on use of native raptors is no less a restriction on falconers' speech.

In addition, the Federal Defendants make no argument in the motion to dismiss that the content-based restrictions pass strict scrutiny. Thus, the Federal Defendants' motion to dismiss Counts III, IV, V, and VI on the grounds that the regulations do not restrict protected speech is DENIED.

Next, the Federal Defendants contend that, assuming the speech restricted by the regulations is protected speech, the regulations do not violate the First Amendment because they are permissible regulations on commercial speech. {As discussed below, even assuming the speech regulations are aimed at only commercial speech, the Court finds that Defendants are not entitled to dismissal. In light of that finding and because the First Amendment test for commercial speech is less stringent, at this stage, the Court is not required to determine definitively the commercial or noncommercial nature of speech being restricted.}

In the present case, the limits on "commercials," under 21.29(f)(9)(i) and "advertisements," under subsection (ii), standing alone, are restrictions on commercial speech. However, restrictions on film (movies), photography, or on commercial entertainment are not restrictions on commercial speech. See ETW v. Jireh Pub., Inc., 332 F.3d 915, 925 (6th Cir. 2003) (holding "prints," or copies, of paintings were not commercial speech because they did not propose a commercial transaction); see also Anderson, 621 F.3d at 1060 (recognizing various forms of entertainment and visual expressionincluding moviesare purely expressive activities). Thus, 21.29(f)(9)(i) & (ii) place restrictions on commercial speech advertisements, commercials, and promoting a business or productand on non-commercial, fully-protected speech.

The Court evaluates restrictions on commercial speech using the four-part test in Central Hudson: "(1) if the communication is neither misleading nor related to unlawful activity, then it merits First Amendment scrutiny as a threshold matter; in order for the restriction to withstand such scrutiny, (2) [t]he State must assert a substantial interest to be achieved by restrictions on commercial speech; (3) the restriction must directly advance the state interest involved; and (4) it must not be more extensive than is necessary to serve that interest."

Plaintiffs argue that Defendants cannot make the showing on the fourth prong that the restrictions fit the government's interest at the motion to dismiss stage. Where the challenged regulation is a content-based restriction subject to strict scrutiny, the issue of whether the challenged restrictions adequately fit the government interest was a question for summary judgment or trial. Frudden v. Pilling, 742 F.3d 1199, 1207-08 (9th Cir. 2014). The summary judgment process requires defendants to show a compelling government interest and permits plaintiffs an opportunity to present countervailing evidence.

The Court acknowledges Defendants have a substantial interest in protecting native raptors. In arguing that the regulations meet the fourth prong as a matter of law, the Federal Defendants claim that "the regulations are directed specifically at commercial endeavors, with a limited carve-out for falconry related undertakings." ECF No. 24-1 at 19. However, in light of Frudden, the present record is not developed sufficiently. Accordingly, the Federal Defendants' motion to dismiss the challenges to 50 C.F.R. 21.29(f)(9)(i) and (ii) (Counts III & IV) on the theory that they are permissible commercial speech restrictions is DENIED.

In Count VI (Second Count), Plaintiffs claim that the California regulation, 14 C.C.R. 670(h)(13)(A), violates the First and Fourteenth Amendments in the same way that the federal regulations do. This regulation states: "Education and Exhibiting. A licensee may use raptors in his or her possession for training purposes, education, field meets, and media (filming, photography, advertisements, etc.), as noted in 50 CFR 21, if the licensee possesses the appropriate valid federal permits, as long as the raptor is primarily used for falconry and the activity is related to the practice of falconry or biology, ecology or conservation of raptors and other migratory birds. Any fees charged, compensation, or pay received during the use of falconry raptors for these purposes may not exceed the amount required to recover costs."

Like the federal regulations in Counts III, IV, V, and VI, this regulation is also a restriction of expressive activity based on content. It demands that when using the raptors in presentations or media, the content must be related to falconry. Section 670(h)(13)(A) also imposes a restriction on compensation that corresponds to the federal regulations. The State Defendants argue that 670(h)(13)(A) does not ban speech. For the same reasons stated above that the federal regulations are content-based restrictions on expressive activity, the Court rejects this argument. Because the regulations are content based, they are presumptively unreasonable and subject to strict scrutiny review.

Next, the State Defendants contend that should falconers desire to use raptors for exhibiting or commercial uses not authorized in 670(h)(13)(A), they may obtain the appropriate permit to engage in such activity. It is somewhat unclear what State Defendants are pecking at. The Court has reviewed the falconry regulations raised by the parties. It is possible there is a separate regulatory regime that supports State Defendants' argument that falconers can obtain a separate permit to engage in the prohibited activities. State Defendants have not identified any such alternative regulations or laws.

The language of the regulations does not support the State Defendant's position.14 C.C.R. 670(h)(13)(A) provides "A licensee may use raptors in his or her possession for training purposes, education field meets, and media (filming, photography, advertisements, etc.), as noted in 50 CFR 21, if the licensee possesses the appropriate valid federal permits, as long as the raptor is primarily used for falconry and the activity is related to the practice of falconry or biology, ecology or conservation of raptors and other migratory birds." By this provision's plain language, it does not appear that a falconer could seek a permit to give a talk with the raptor that is unrelated to the practice of falconry. For instance, even with an exhibiting permit under 14 C.C.R. 671.1(b)(6), a falconer could not give a presentation using her raptor about her political or religious views, or throw a Harry Potter party for a relative, because these topics are not related to the practice of falconry or the biology, ecology, or conservation of raptors. Furthermore, it is notable that the provision requires the licensee to possess the "appropriate valid federal permits." Thus, the Court rejects the State Defendants' argument that Count VI (Second Count) fails to state a claim for relief on the theory Plaintiffs could simply get a separate federal permit.

[T]he strength of the government's interest for the challenged regulations and the fit of those interests to the speech restrictions at issue are material to the Court's preliminary injunction analysis for all three categories of the First Amendment challenges.

The Court tentatively finds that the government has a strong interest in protecting the native raptor species, but because the briefing has failed to sufficiently discuss any aspect of fit, and because the Court is responsible for evaluating how a preliminary injunction would impact the public interest, the Court must hear from the Federal and State Defendants before it takes any action.

For example, it is unclear from the present record whether prohibiting falconers from earning money for educational presentations is a narrowly-tailored solution to combat a marketplace for the protected birds. Federal and State Defendants must discuss why the restrictions on falconers' ability to give presentations and to film and photograph their birds meet strict scrutiny.

As with analyzing the restrictions on falconers' ability to give presentations and film their birds, the Court will need supplemental briefing to thoroughly analyze whether the compensation restrictions are narrowly tailored to achieve the government's interest. Federal and State Defendants must discuss why the compensation restrictions meets strict scrutiny.

As to the third category relating to commercial speech, the Federal Defendants contend that the regulations affecting commercial transactions of falconers are necessary to prevent a market for the protected birds from developing. Federal Defendants argue that lifting the regulations would undermine the goal of falconry raptor preservation and cause detrimental effects on the protected species.

Under Central Hudson, the restriction must not be more extensive than necessary to serve the government interest. The test is sometimes phrased as requiring a "reasonable fit" between the government's legitimate interests and the means it uses to serve those interests, or that the government narrowly tailors the means to meet its objective.

At present, the Federal and State Defendants' briefing does not explain how the regulations are not more extensive than necessary to serve an important state interest. The State Defendants similarly do not address how the restrictions on commercial speech are not more extensive than necessary to promote the health and welfare of raptors. Therefore, on the present record, the Court cannot determine if the restrictions on commercial speech are not more extensive than necessary to serve these interests.

The Court will order the Federal and State Defendants to submit supplemental briefing with respect to these narrow issues. The Defendants should discuss the nature of the government interest involved and how the three categories of speech restrictions (falconers' presentations and media, compensation, and commercial speech) are drawn to meet such interest. Lastly, Defendants should provide an analysis for the third and fourth prongs of the Winter test: the balance of equities and the public interest. Plaintiffs will then have an opportunity to respond.

The State and Federal Defendants are ordered to file supplemental briefs addressing the state interest(s) in the regulations challenged under the First Amendment and how those speech restrictions are tailored to achieve those interests, and relatedly, the balance of equities and the public interest prongs under Winter. The Defendants shall have 30 days from the date of this order to file the briefs. Toucan, of course, play at this game, so Plaintiffs will then have 30 days from the date they are served with both State Defendants' and Federal Defendants' briefs to file a responsive brief.

Go here to read the rest:
First Amendment Challenge to Restrictions on Use of Falcons in Videos and Commercials - Reason

Kendra Espinoza, a single mother of two young girls, never dreamed that sending her daughters to a Christian school in Kalispell, Montana, would lead her to the national stage. But on Wednesday, her lawsuit, Espinoza v. Montana Department of Revenue, was argued before the U.S. Supreme Court, and its far-reaching implications could impact Pennsylvanians education options.

Espinoza homeschooled her daughters until her husband unexpectedly left, forcing her to enroll them in the local public school. The school wasnt a good fit for her daughters they werent thriving. Stillwater Christian School seemed like the perfect solution, but tuition was more than she could afford. Still, she worked extra jobs, held a big yard sale, and raffled quilts to come up with the money. Her older daughter even mowed lawns to contribute.

It was barely enough.

Then, Espinoza learned of a recently enacted program in Montana, similar to Pennsylvanias tax credit scholarships, that could help her afford tuition for future school years. Her glimmer of hope was short-lived, though. Montanas program bars religious schools, and the state refused to grant her daughters scholarships.

Espinoza felt that amounted to discrimination. She and two other moms in similar situations sued the department with the help of nonprofit law firm, the Institute for Justice. But the Montana Supreme Court doubled down, ruling the entire scholarship program unconstitutional in 2018.

The families appealed and are now before the U.S. Supreme Court, arguing that ending the scholarship program because it included religious schools violates the First Amendment.

At issue is the Montana constitutions Blaine Amendment, which prohibits the government from giving public funds to religious schools. There are similar provisions in 36 other state constitutions, including right here in Pennsylvania. These amendments trace their roots to the late 1800s, when anti-Catholic sentiment was rampant and protestant legislators sought to starve them of public funds. Congressman James Blaine and many other anti-Catholic legislators required prospective states to adopt Blaine Amendments in order to be admitted to the union and persuaded many existing states to adopt similar amendments.

Now, the Supreme Court will decide if these provisions violate the U.S. Constitution.

The issues presented in Espinoza are not new to the Court. In Zelman v. Simmons-Harris, the Supreme Court upheld an Ohio school voucher program, ruling that it was neutral with respect to religion since parents not the government are the ones directing government aid to the schools.

And in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court found that Missouris denial of a church application for new playground surfacing was a violation of the churchs First Amendment protections by denying a generally available benefit solely on account of the [applicants] religious identity.

If the Court follows the same logic, Espinoza and the other Montana moms stand a good chance of winning. Similar to the situation in Zelman, the Montana program was impartial to religion and was designed to help disadvantaged students. Moreover, the ruling in Trinity Lutheran created a precedent for greater scrutiny when the state excludes a church from public benefits. With these cases setting the stage, the Supreme Court has the opportunity in Espinoza to defend the rights of parents to access public programs without compromising their constitutional rights. As a result, anti-Catholic Blaine Amendments in Montana and dozens of other states, may be laid to rest.

Such an outcome will liberate students across the country including in Pennsylvania to pursue broader educational choices that satisfy their needs. While Pennsylvanias tax credit scholarships pass constitutional muster, removing our Blaine Amendment will open the door to new educational freedoms for students.

If we win at the Supreme Court, it makes a difference for my girls and for so many other families, says Kendra Espinoza. I believe school choice is important for all families, not just for myself and my children. Its my right as a parent to choose how my children are educatednot the governments right.

Colleen Hroncich is a senior policy analyst for the Commonwealth Foundation (CommonwealthFoundation.org), Pennsylvanias free market think tank.

See original here:
The First Amendment and Supreme Court | Opinion | dailyitem.com - Sunbury Daily Item

NUTLEY, NJ - On Jan. 23, 2019,Nutley Public School teachers ralliedpeacefully in front of John H. Walker Middle School in a sign of unity with their representatives who were negotiating their contract with the Board of Education. The contract was eventually settled, and based on information presented in subsequent BOE meetings, the teacher's hard work paid off in the form of improved student performance.

TAPinto Nutley captured this "First Amendment Moment" ofthe 'right of the people peaceably to assemble.' one year ago today.

TAPinto is a big fan of the First Amendment to the Constitution, especially the freedom of the press part, but let's take a moment to read the entire amendment.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Since 2016,TAPintoNutley.net has beenthe only locally owned news organization serving the Township of Nutley, andis a member of the New Jersey Press Association. The NutleyBoard of Commissioners first named TAPintoNutley.net the township's 'Official Electronic News Source' in 2019.

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Throwback Thursday: The First Amendment's Freedom of Assembly in Action in Nutley NJ - TAPinto.net

President Donald Trump gives a speech in Austin, Texas. (Photo credit: Nicholas Kamm/AFP via Getty Images)

President Trump truly made Religious Freedom Day a day of celebration on Jan. 16 for those communities and individuals who live a religious life. In a long-needed and bold gesture, the President leveled the playing field so that people of faith are no longer treated as second-class citizens by our public institutions.

There can be no doubt that the eight years of the previous administration instituted orders and promoted an attitude that purposely made people of faith uncomfortable in our public institutions, including schools, and promoted a sense that religious people were outside the mainstream and harmful to general society. It was a low point in our nations history.

There are many concrete demonstrations in todays guidelines and announcements by President Trump that will, thank God, dramatically change the atmosphere and resurrect the religious freedom upon which this country was founded. The biblical life and the values and manners that derive therefrom are and have been the most vital feature in shaping the unique American society and opportunities from which we continually receive blessing.

More than any president in my lifetime, President Trump has fulfilled his campaign pledges and done so with clarity, full heart, and in a manner filled with conviction and designed for effectiveness.

Rabbi Aryeh Spero is spokesman of the Conference of Jewish Affairs, author of Push Back: Reclaiming our American Judeo-Christian Spirit, president of Caucus for America, and a frequent guest on Fox News.

Original post:
President Trump Restores the Original Intent of the First Amendment - CNSNews.com

Janine Jackson interviewed Defending Rights & Dissents Chip Gibbons about the FBI vs. the First Amendment for the January 17, 2020, episode of CounterSpin. This is a lightly edited transcript.

MP3 Link

Janine Jackson: We invoke protest a lot in this country, but many people are confused about the right to political expression: They dont want to get on the wrong side of the law while arguing for righteousness; thats not a familiar or comfortable spot for many people.

Some are honestly confused about which side the law is on. They havent accepted that their belief in the value of human life might make them a criminal, if the life in question is a child whose parents seek asylum, or an Iranian whose country isthis weekon the hot list of enemies of the state. Thats a hard thing to get your head around. Mainly, people think the law will uphold our rights, despite our knowledge that sometimes the state is the one stepping on them.

Our next guest examines just how state actors intervene in and undermine what should be protected political activity and speech. Chip Gibbons is a journalist and a researcher. Hes policy director at Defending Rights & Dissent, and author of the recent report Still Spying on Dissent: The Enduring Problem of FBI First Amendment Abuse. He joins us now by phone from Washington, DC. Welcome back to CounterSpin, Chip Gibbons.

Chip Gibbons: Always a pleasure to be on CounterSpin, one of my favorite programs.

JJ: Well, thank you.

You make clear that this report is not about Donald Trump per se, because these are issues that long predate him. But one of the more perverse developments, I would say, of the Trump moment is liberalsunderstandably eager for there to be some commensurate power to counter that of the White Houseseeming to endorse the FBI as that force. So the report is completely relevant to the present moment, as history generally is.

But lets just start briefly with what you looked at. What was the material for this project?

CG: Sure. So the material is all information that was already in the public domain. But what we went through and did was we looked at known incidences of FBI surveillance, monitoring or tracking of political protest since the year 2010, for the last decade. And what we found is that over that decade, the FBI has repeatedly used its counterterrorism authorities to spy on and monitor environmental groups, antiwar groups, labor groupsso basically, civil society activity for justice. And when you look at the incidences together, what you realize is that theyre not isolated incidents.

If you ever see media coverage of an FBI political spying scandal, it will be like, FBI Spies on Environmental Protesters in Houston, but it wont say, And just last week, the FBI was knocking on the homes of Palestine solidarity activists in Berkeley. When you put these things together, what you see is how systemic the problem is.

And after we did that, we went a step further and looked at the history of political surveillance in the United States, to make the case that the trends that we see in the last 10 years, which continue to this day, are part of a larger history of political surveillance in the United States, as carried out by the Federal Bureau of Investigation.

JJ: And lets be clear, the FBI themselves have acknowledged that theyre not talking about groups that have been engaged in known violence. They explicitly say, some of the people theyre surveilling are nonviolent, are peaceful organizations.

CG: In many of the cases, they do. We know from the files released via the Freedom of Information Act about the surveillance of Occupy Wall Street, the FBI acknowledged they were nonviolent. We know about the files released about School of the Americas Watch, which is a pacifist antiwar group that protests a notorious military training facility, where it has been training death squads and dictators in Latin America, that they were a peaceful group with peaceful intentions. They try to rationalize this by saying that at an unknown point in the future, that an unknown actor could infiltrate these groups and act violently, or in the case of Occupy Wall Street, they said the group could be exploited by a lone offender. But whats really insidious here is that they clearly think that certain types of speech, therefore, are somehow suspicious.

And you see this logic even more in play with the Black Identity Extremism intelligence assessment, which states that if African Americans are concerned about police racism and social injustice, theyre more likely to engage in lethal retaliatory violence against law enforcement, and thats a threat the FBI has to counter in the present. And what thats saying is that being angry about social injustice you experience is somehow a pretext that one might then use to go and engage in crime. Its a predetermining factor in criminality.

And you see that again with one of the FBI field offices had a report on, because of anger at the horrible treatment of migrant children who are in concentration camps in this country, that youre more likely to see anarchists engage in violence against the government. So this treatment that certain types of speech lead to crime, and therefore are inherently suspicious. And you also see the government just, quite frankly, conflating speech itself with criminality or with terrorism.

JJ: I have to say, media play a role here, lifting up every foiled terror plot as justification for anything at all, because, you know, Look, we foiled a plot, even if the plot was the work of an FBI agent provocateur ginning up some confused man in a chat room. Whatever civil liberties or rights you want to hold up, I feel media play into countering that with, But wait, this unknowable number of deaths has been prevented, so this whole idea of preemptively preventing violence is incredibly insidious.

CG: Absolutely. And its good that you pointed out agent provocateurs, because the FBI has always used confidential informants to spy on dissent. But since 9/11, and especially in the Muslim community, those confidential informants have increasingly acted as agents provocateurs, going to people who are not suspected of any crimein one case, they met someone, a random person in a parking lot of a mosqueand then suggesting, and in many cases enticing them to agree to terror plots that exist only in the FBIs minds. And then when they agree to partake in them, theyre then arrested, and the FBI does these big press releases, a big press conference saying, Oh, we foiled terrorism, we foiled a terror plot. And that further justifies more repression.

Donald Trumps Muslim ban, there are multiple iterations of it through multiple executive orders, but in the second executive order, to try to overcome the legal challenges to it, he cited a rationale for it, and he named two terror plots carried out by refugees. In both of those cases, the plots were the work of an FBI agent provocateur; in one of the cases, the judge found the plot to be an example of imperfect entrapment. So here you have the FBI manufacturing fake terror plots, and then going around using that to claim theres a larger threat from terrorism than there actually is, and then that being used to justify more state repression.

JJ: Lyndon Johnson called the Gulf of Tonkin Resolution, like Grannys night shirt, it covers everything. And I think that getting folks to accept the idea of a War on Terror, getting reporters to take that phrase out of quotation marks and suggest that its a solid, identifiable thing, thats a real Grannys nightshirt of a victory for some, including the FBI. I mean, the idea of just saying terrorism is allowed to justify a great deal.

CG: It is, and it unfortunately, in some cases, it predates, with the FBI, 9/11. They certainly accelerated the abuses after 9/11. But in the 1980s, they were using the threat of international terrorism to investigate opponents of Ronald Reagans foreign policy, and specifically the Committee In Solidarity with the People of El Salvador. And as part of this massive foreign counterintelligence investigation against a domestic group engaged in domestic political activity, once again protesting horrible injustices, they came up with a list of organizations who were in support of CISPESs goals, and included the Maryknoll nuns on it. So theyve long used the threat of terrorism or subversion or whatever to spy on dissent, and 9/11 and the existence of a War on Terror has only given them more legitimacy for delegitimizing dissent.

JJ: I said at the outset that some folks havent accepted that their desire to speak out for their beliefs can get them labeled criminal. Of course, some of us were born with that label; our opposition is stamped in our ethnicity or our gender presentation or our neighborhood. And something has changed, that 2008 decision about assessments, things have shifted, so that simply belonging to a certain communityon paperis allowed to make you suspicious, yeah?

CG: Sure. So in 2008, Attorney General Michael Mukasey, George W. Bushs lame duck attorney general, literally weeks before Obama comes into office, he puts out new attorney general guidelines. And what are the attorney general guidelines? The FBI was created as the Bureau of Investigation in 1908, without Congresss approval. So to this day, they have no congressional or legislative charter, outlining who they can investigate, what techniques they can use, and why they can investigate someone. Theyre not only a law enforcement agency, but theyre also an intelligence and national security agency.

So law enforcement, in theory, is supposed to be about investigating people for crimes and then prosecuting them. I think your listeners know thats not really what law enforcement does. Its more about social control.

But intelligence, on the other hand, doesnt have any such mandate, so its much more broad. And theyve always used that to spy on dissent. But in the Church Committee in the 70s, a lot of this starts to come out, and people are outraged, and as a result, they dont impose a legislative charter on the FBI; instead, they agree to this compromise where the attorney general creates guidelines for the FBI. And because these guidelines are created by the attorney general, any attorney general can change them.

And in 2008, like I said, Michael Mukasey issues new guidelines that are unprecedented in the scope of authority they give the FBI. They let the FBI carry out whats called assessments, which are investigations that do not require a factual predicate to believe the individual is involved in crime, or threatens national security, merely a authorized law enforcement purpose. So for the first time since the Church Committee, the FBI has the authority to investigate people not suspected of any wrongdoing whatsoever.

JJ: The report also includes some recommendations and some thoughts about going forward. Youve said the guidelines around them are murky, a lot of folks dont understand whos in charge of the FBI. Courts dont call what they do entrapment, straight out, very often, just like we know law enforcement can lie to suspects, straight up lie to them. But the response is not to give, somehow, the FBI more power.

Chip Gibbons: In the last decade alone, theyve spied on Occupy Wall Street, Black Lives Matter, Abolish ICE movements, Palestinian solidarity movements, environmental movements. Obviously, thats only the tip of the iceberg.

CG: No, I think what we need to do is, we need to actually have a legislative charter that defines what the FBIs powers are, and they need to be limited to investigating only violations of the federal criminal code. And we need to have serious protections for the First Amendment, so that the FBI cannot initiate or conduct investigations involving the exercise of free speech unless there are specific and articulable facts that actually indicate that the subject of the investigation is engaging in a criminal act. I think that would be a huge one. I think limits on the use of informants, to not allow themabsent, once again, suspicion of crimeso theres not the sort of dragnet informants you see, where you send a confidential informant into the Muslim community, where theres no suspicion of any wrongdoing, and then you try to entrap people, or what should be called entrapment. You know, barring the informants from acting as agents provocateurs would be helpful.

And I think Congress needs to actually engage in its oversight roleI know thats a shocking ideaand actually investigate what the FBI is doing, because we know from information in the public domain, that in the last decade alone, theyve spied on Occupy Wall Street, Black Lives Matter, Abolish ICE movements, Palestinian solidarity movements, environmental movements. Obviously, thats only the tip of the iceberg, because we dont have access to all of the information which Congress could get, and they could ask the question: Why are these investigations been initiated? What other similar investigations have taken place? What is the scope of this political surveillance?

JJ: We should be able to argue that this infiltration and surveillance of protected activity is wrong, without having to tack on the note that, Oh, and also, it actually doesnt make you safer.

CG: Absolutely.

JJ: And yet, the context is that we do need to make that clear to folks.

CG: Yeah, its unfortunate, but the more time the FBI spends investigating people who are engaged in nonviolent, political protected speech, the less time they spend investigating actual threats. If you actually believe the FBI is a tool to counter actual threatswhich I suspect many of your listeners may not, but if someone did believe thatwhy would you then be OK with them being allowed to investigate people without any evidence of a crime, because that means theyre just out there doing futile or wasteful investigations, and diverting resources away from their stated purpose into this sort of political policing instead?

JJ: And then lets just bring it back, because I am trying to say to folks, You know, maybe you dont think youre a black identity extremist. But if you go through a checkpoint and you have some Assata Shakur in your backpack, hey. Theres kind of an essentialism undergirding this, that theres good people and bad people, and if people are bad, it doesnt matter what you do to them. And I just would encourage folks to think, This could be you. This can be you. This may be you right now.

CG: Yeah, I think thats important to remember that this type of surveillance threatens us all if we are engaged in political activity, and the FBI should not be allowed to investigate political activity, should not be allowed to investigate people who they have no factual predicate to suspect of wrongdoing. Its insidious.

JJ: Weve been speaking with Chip Gibbons, policy director at Defending Rights & Dissent. They, and this report, are online at RightsAndDissent.org. You can find Chip Gibbons piece, Never Trust the FBI, at Jacobinmag.com. Chip Gibbons, thank you so much for joining us this week on CounterSpin.

CG: Thank you for having me.

More:
'This Type of Surveillance Threatens Us All' - FAIR