The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
This civil rights action, brought under 42 U.S.C. § 1983,
presents the question of whether the first amendment permits
local police authorities to infiltrate, observe, record, and
disseminate information gathered on the lawful speech activities
of private individuals and private organizations when the police
have no reasonable suspicion of criminal conduct. This question
is now before the court on cross motions for summary judgment.
The moving plaintiffs are the only remaining named plaintiffs
in this historic civil rights litigation. The class claims were
resolved through a consent decree entered in 1981 and the claims
of all other named plaintiffs have been resolved through
settlements. The court's decision on the cross motions for
summary judgment will end this litigation because the parties
have agreed to settlement of any successful claim and all parties
have agreed not to appeal this decision.
I. Background and Factual Summary
The parties have stipulated to the following material facts as
to which there is no genuine dispute: Plaintiff Alliance to End
Repression ("Alliance") is a civil liberties organization that
seeks what it deems to be reforms in the criminal justice system
of Chicago. Plaintiff Chicago Peace Council ("CPC") is a peace
organization which advocates positions on peace issues and
organizes demonstrations regarding United States foreign policy.
Plaintiff William Hogan, a Roman Catholic priest, plaintiff Lucy
Montgomery, a retired social worker, and plaintiff A.A. (Sammy)
Rayner, Jr., a former Chicago alderman, are all United States
citizens who in the past have actively exercised their first
amendment rights. There is no evidence in the record that any of
the plaintiffs conducted, or ever planned on conducting any
violent or otherwise unlawful activity. Plaintiffs indicate that
if the case were brought to trial, they would testify that their
activities were always lawful. The only defendant in this case is
the City of Chicago ("City"); claims against individual members
of the Chicago Police Department have been settled and dismissed.
The actions complained of in this case are deemed to have been
done under color of state law and represent the official policy
of the City of Chicago.
Plaintiffs, it is agreed, were the subjects of investigations
carried out by a unit of the Chicago Police Department, the
explicit purpose of which was to gather intelligence on
non-criminal activity. The unit has been variously known as the
Subversive Activities Section, the Subversive Activities Unit,
and the Security Section. This unit investigated, without any
reasonable suspicion of criminal conduct, the admittedly lawful
activities of plaintiffs relating to their political speech and
associations. The investigations were conducted by a variety of
means. Among the more striking examples was the use of certain
organization infiltrators. Specifically, some of the information
accumulated on CPC was obtained by means of an informer who
became CPC's treasurer and participated in the CPC
decision-making process. Information was obtained on Alliance by
means of an informer and an undercover agent, both of whom became
Alliance board members and who participated in the Alliance
decision-making process. More generally, a sizeable amount of
information on the two organizations was obtained from newspaper
clippings and clippings from other public sources of information.
Intelligence was also gathered from various other informers whose
level of infiltration or association with the plaintiffs is not
specified. Finally, photographing, filming, videotaping and
recording of plaintiffs' activities were also techniques employed
in acquiring information. One such instance occurred when CPC,
along with other groups, rented the grounds of a summer camp one
weekend for a conference on nonviolent ways to "end war, racism,
and repression." The police set up equipment opposite the camp
and took photographs of all who were present at the conference.
Similarly, information gathered on the three individual
plaintiffs was also obtained through the techniques of informer
interviews, newspaper clippings and photographs. There does not,
however, appear to be any evidence that the informers were (or
were not) specifically recruited by the police to duplicitously
befriend the individuals and obtain their confidence. Finally,
there is no evidence that any of the five plaintiffs were
electronically surveilled, wiretapped, or photographed in their
homes or other private enclaves.
The various forms of information thus obtained were filed and
recorded in police dossiers on each of the plaintiffs. These
dossiers are extensive. There are 13 volumes of reports on
Alliance, 1,760 reports on CPC, 499 reports on Hogan, 220 on
Montgomery, and 513 on Rayner. The contents of these reports
include the identities of many members of the CPC and Alliance,
what was discussed at meetings, and who made particular comments
during the discussions. The reports on the individual plaintiffs
contain the identities of their political associates and numerous
other details of their public and personal lives.
The parties agree that the police department maintained a
policy, directed against Alliance, which sought to "neutralize"
and "nullify" its political influence, financial organization and
support, and operational activities. The parties also have
stipulated that as a result of the surveillance of CPC at the
summer camp, a reporter who "accompanied" the police to the camp
published a newspaper story in the Chicago Tribune which stated
that "radicals" and "Communists" had used the property for a
"secret revolutionary planning session." There is evidence, the
parties agree, that a Security Section police officer, an
undercover officer, and an informer testified inaccurately before
the Senate Internal Security Subcommittee that Alliance was a
"Communist Party front group." Alliance and CPC have indicated
that, if the case were tried, they would testify that these
statements were false and have injured their reputations. All
five plaintiffs have indicated that they would testify that the
entire surveillance operation has chilled their exercise of first
One year after this lawsuit was filed, the subversive unit of
the Chicago Police Department was abolished. In 1981, the
defendant City of Chicago agreed to a permanent injunction.
Alliance to End Repression v. Chicago, 561 F. Supp. 537 (N.D.Ill.
1982), rev'd on other grounds, 742 F.2d 1007 (7th Cir. 1984).
Consent decrees were also signed with the federal defendants.
Alliance to End Repression v. Chicago, 91 F.R.D. 182 (N.D.Ill.
1982). The only remaining issue in this case is the
constitutional validity of the police department's tactics with
respect to the five remaining plaintiffs.
Before the merits of the plaintiffs' claim can be decided the
court must first address the defendant's argument that, under the
authority of Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33
L.Ed.2d 154 (1972), the plaintiffs have no standing to bring this
claim because it is nonjusticiable. Only if the plaintiffs can
establish that their injury is justiciable can this court then
undertake to determine whether the injury was inflicted in a
manner inconsistent with the first amendment.
In Laird v. Tatum, the plaintiffs had alleged that the mere
existence of an Army surveillance system which investigated
lawful and peaceful civilian activity chilled the exercise of
their first amendment rights. The Supreme Court held, in a 5-4
decision, that "in the absence of a showing of objective harm or
a specific threatened future harm," any claimed chill is merely
"subjective" and therefore not justiciable.
The information itself was collected by a variety of
means, but it is significant that the principal
sources of information were the news media and
publications in general circulation. Some of the
information came from Army Intelligence agents who
attended meetings that were open to the public and
who wrote field reports describing the meetings,
giving such data as the name of the sponsoring
organization, the identity of speakers, the
approximate number of persons in attendance, and an
indication of whether any disorder occurred. And
still other information was provided to the Army by
civilian law enforcement agencies.
408 U.S. at 6, 92 S.Ct. at 2322.
It was in this context that the plaintiffs in Tatum claimed
that the compilation and storage of the acquired information
chilled their exercise of first amendment rights. The Court felt
that the intrusions the plaintiffs were objecting to were unlike
and much less significant than those the Court had previously
condemned on first amendment grounds, so any "chill" the
plaintiffs claimed to be suffering was purely "subjective." The
types of intrusions which the Court felt would cause an objective
chill occurred in cases like Baird v. State Bar of Arizona,
401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971) (state may not compel
a person to disclose that person's associations in order to be
admitted to state bar); Keyishian v. Board of Regents,
385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (state may not discharge
employees because of their political associations); Lamont v.
Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398
(1965), and Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12
L.Ed.2d 377 (1964). In those cases, "the challenged exercise of
governmental power was regulatory, proscriptive, or compulsory in
nature, and the complainant was either presently or prospectively
subject to the regulations, proscriptions, or compulsions that he
was challenging." 408 U.S. ...