There Once Was A Real First Amendment Defense Act

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Nearly 200 members of Congress have signed onto a bill called the “First Amendment Defense Act.” At first glance this might sound like good news. After decades of FBI and local law enforcement infiltrating and spying on nonviolent political groups, the crackdown on Occupy Wall Street, the monitoring by DHS of Black Lives Matter, and the systematic singling out of Muslims for surveillance for no reason other than their faith, the First Amendment could use a defender right about now. Given all of the shenanigans that Congress seems hopelessly mired in, it would also seem positive that our representatives are finally giving attention to some of the vital issues of the day—like the continued gutting of the Bill of Rights.

Sadly if you were hoping for another Church Committee to explore high level government abuses of civil liberties, or even just a more targeted investigation, like the 1989 Senate Select Intelligence Committee Report on the “FBI and CISPES [Committee in Solidarity with the People of El Salvador],” into say the use of the FBI Joint Terrorism Task Force to monitor Occupy Wall Street you will be disappointed. Instead, members of Congress have concocted a non-problem, created a solution for it that does more harm than good, and somehow has dragged the poor First Amendment into their phony crusade.

The so-called First Amendment Defense Act is meant to legitimize discrimination against LGBT people and heterosexuals who engage in sexual intercourse outside of wedlock. The bill, which defines persons to include for-profit corporations, would have broad impacts. A business could practice discrimination against LGBT employees and still receive federal contracts. A college could fire a single mother and not lose either federal funding or its tax-exempt status. Similar arguments were made about racial discrimination all the way into the 1980s. Infamously, Bob Jones University took its claim of a First Amendment religious freedom right to racially discriminate and maintain tax-exempt status all the way to the Supreme Court. The Supreme Court, in an 8-1 decision, found in favor of the IRS—who had revoked Bob Jones University’s tax-exempt status for practicing racial discrimination.

Another bizarre component of this bill is that it would give even low-level federal employees the right to discriminate. According to Mark Joseph Stern at Salon, such employees could “refuse to process gay couples’ tax returns, Social Security checks, or visa applications” and “refuse to process Social Security paperwork or passports for single mothers and their children.”

Most perversely, many commentators have pointed out that the First Amendment Defense Act actually violates the First Amendment. By protecting only those who believe marriage is between one man and one women or that sexual intercourse may only take place amongst married persons and not other views on the subject the government is essentially sanctioning one particular view and discriminating against all others.

What is most disappointing about the First Amendment Defense Act is not just that there are a litany of First Amendment abuses to rectified, but that in the past there have been (similarly) named bills aimed at doing that. Some of them have even passed—though they were quickly repealed.

The “FBI First Amendment Protection Act”

The fabled story of FBI Constitutional abuse generally goes something like this—once upon a time the FBI under the guise of its wrongheaded director J. Edgar Hoover probably did some pretty terrible and unacceptable things. Luckily, the Church Committee discovered them and put an end to them. Many people have probably deduced that while the Church Committee was a watershed moment in reining in the FBI (and other government agencies), somewhere along the way, the FBI slipped back into its old ways. Many narratives will put this in the context of the post-9/11 era, but it started well before then.

It was not very long after the Church Committee completed its work in 1976 that the FBI returned to its role as America’s political police. At least as early as 1981 the FBI was investigating First Amendment-protected groups again. In that year, the FBI opened an investigation into CISPES for being unregistered foreign agents. When this charge turned out to be totally baseless, the FBI than opened up an equally baseless “international terrorism” investigation into the group. When this investigation came to light through FOIA requests and a bizarre series of events involving a disgruntled FBI informant (the full FBI-CISPES story warrants greater exploration than this piece can afford) people were outraged enough that President Ronald Reagan had to at least pretend to be upset and the Senate had to conduct an investigation into the matter. While many in the Central American Peace and Solidarity movement thought the Senate Report was more of a whitewash than an actual investigation, six FBI agents were disciplined for the CISPES investigation, and it does show that in the early Post-Church Committee era, Congress had to at least feign concern about the First Amendment.

The CISPES incident coupled with the fact that FBI gumshoes had been investigating Amnesty International members who sent letters to the Soviet embassy condemning Soviet treatment of political prisoners to see if they were Soviet spies led to a great deal of concern that not a whole lot had changed at the FBI. In 1985 the National Committee Against Repressive Legislative, a predecessor to BORDC/DDF, began circulating a petition drafted by law professors calling on Congress to statutorily limit FBI investigations to where there is reasonable suspicion that a crime has been, or is being, committed and prohibiting the FBI from investigating groups because of their members’ exercise of their First Amendment rights. In other words, a real First Amendment defense act. According to David Cole’s and James X. Dempsey’s Terrorism and the Constitution “590 law professors at 147 law schools signed the petition.”

This petition eventually became Rep. Don Edwards (D-CA)’s “FBI First Amendment Protection Act.” The act was introduced repeatedly after 1988, but never actually passed. However, such efforts were not in vain. In 1994 the “Edwards Amendment” to the Violent Crime Control and Law Enforcement Act did pass, barring investigations into activities protected by the First Amendment.

Almost as soon as this amendment went into law, members of both parties began actively trying to repeal it. They succeeded in 1996, inserting repeal language into the Antiterrorism and Effective Death Penalty Act. If members of Congress were truly interested in passing an act that defended the First Amendment they would restore the Edwards Amendment.

How the Local Civil Rights Restoration Act Could Help

If you would like to defend the First Amendment and are afraid that Congress might not be doing so anytime soon, all hope is not lost. BORDC/DDF has been empowering activists to make changes at the local level that Congress has been unwilling to make at the national level, with our model “Local Civil Rights Restoration Act” and tool kit for activists.

This model legislation can be adopted in nearly any municipality and can be adopted in whole or in part. While it includes a wide range of civil liberties protections it also would prohibit the kind of law enforcement encroachment on the First Amendment the Edwards Amendment was designed to prevent. Under the act local law enforcement would be prohibited from engaging “in undercover infiltration, or undisclosed participation of any kind, in groups or organizations pursuing First Amendment-protected (speech, political or religious) activity, absent probable cause that a criminal offense may be committed”

Using the BORDC/DDF toolkit you can defend the First Amendment in your local community—even when Congress is unwilling to nationally.