Information as Power: Ferguson and Free Expression
August 9 will mark one year since Michael Brown was killed by police officer Darren Wilson in Ferguson, Missouri. A few weeks before, Eric Garner was choked to death by a New York City Police Department officer in Staten Island. Their deaths, and those of far too many others, sparked ongoing public demonstrations in Ferguson and other cities and forced a national conversation on racism, law enforcement, violence, and accountability. Black Lives Matter. I Can’t Breathe. Say Her Name. These phrases have taken on powerful new meanings in the last year.
The events in Ferguson demonstrated yet again the power of public protest, which is both a constitutional right and one of the most effective means citizens have for airing their grievances and demanding change. Protesting works, period. But the right to protest is under threat, as is journalists’ First Amendment right to document public demonstrations, including interactions between police and protesters. PEN’s report Press Freedom Under Fire in Ferguson documented 52 alleged violations of press freedom committed by St. Louis-area police during the protests. It also discussed some of the deeply troubling practices used by police in Ferguson and elsewhere against protesters: deploying military-grade equipment, including the armored vehicles and sniper rifles seen in Ferguson; refusing to communicate with protesters and journalists—and in so doing, rejecting crucial opportunities to de-escalate tense situations and build rapport between law enforcement and demonstrators; pointing loaded weapons at unarmed people behaving in a lawful and orderly manner.
One year later, protest rights remain vulnerable. Some progress has been made to rein in the use of military-grade equipment by local police forces, and some of the journalists wrongfully arrested in Ferguson have settled the cases against them. But there is still much to be done to ensure that everyone can freely exercise their constitutional and human right to engage in peaceful protest—a fundamental form of free expression.
The Black Lives Matter movement has also highlighted the importance of access to information, which is a human right recognized in the International Covenant on Civil and Political Rights, a treaty to which the United States is a party. Under international law, access to information is understood to be a component of freedom of expression, as well as a cornerstone of the principle of government transparency: a healthy democracy requires the participation of its citizens in an informed and open debate. To have one, the citizens must have access to relevant information, especially information held by the government, which is, after all, supposed to be acting by and for the people.
Data matters. In the last year, activists have succeeded in dramatically increasing awareness of police practices and raising calls for reform. One of those calls relates to the need for better data on the number of people killed by police in the United States. The federal government does not currently track this number, so there is no official, comprehensive data. Until Congress takes action—and provides funding—to change this, the task of tracking has fallen to investigative journalists and citizens. Both the Washington Post and The Guardian have started projects to do this, using media reports, public records, their own investigations, and other open sources. The online database Killed By Police also tracks news reports of police shootings and has records going back to 2013. In order to fully debate what reforms are needed and identify the most effective approaches to reform, we need reliable information about questions like this, as well as a host of other questions, like how often disciplinary proceedings are initiated against officers for the misuse of force and the outcome of those proceedings, what training police receive for interacting with individuals who may be mentally ill, and what policies are in place for interacting with protesters and journalists.
Information is power. Using the Freedom of Information Act, The Intercept obtained Department of Homeland Security documents showing that DHS has had Black Lives Matter movement participants under surveillance since Ferguson. And a crowdfunded public records request for emails exchanged by Baltimore officials during the protests after the death in police custody of Freddie Gray is how we now know that a private cybersecurity firm labeled the activists Johnetta (Netta) Elzie and DeRay Mckesson “high severity threat actors” and recommended “continuous monitoring”—surveillance—for both. Government surveillance of civil rights activists has a long and dirty history. The FBI’s COINTELPRO program, which aimed to surveil, discredit, and disrupt any individuals or groups deemed subversive, including Dr. Martin Luther King, Jr., ran from 1956 until it was exposed in 1971 by activists who broke into an FBI field office in Pennsylvania and stole records documenting the program. That discovery, and subsequent revelations of other illegal actions carried out by U.S. intelligence agencies, led to the Church Committee, a congressional investigation of intelligence activities that led to significant reforms.
Between the revelations that the government and private firms are spying on civil rights activists, the NSA’s mass surveillance programs, and the ever-increasing ability of police forces to conduct large-scale surveillance of protests, there is a strong chilling effect on people’s willingness to exercise their constitutional and human right to protest. It’s time for a new Church Committee.