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FBI Sets Eyes on Black Freedom of Speech

Matthew Feeney

The FBI has identified a new threat: the “Black Identity
Extremist” (BIE), whose perceptions of police brutality are
very likely to serve as justification for violence toward police
officers, according to a counterterrorism document recently obtained by
Foreign Policymagazine

The murder of police officers is clearly wrong and tragic, but
in creating this new category of extremist, the FBI risks stifling
innocent Americans’ First Amendment-protected activity.

To its credit, the FBI narrowly defines BIEs as those who seek
to use force or violence to create “a separate black homeland
or autonomous black social institutions, communities, or governing
organizations within the United States.” The FBI further
notes that activism and the use of strong and even violent
rhetoric, “may not constitute extremism, and may be
constitutionally protected.”

The murder of police
officers is clearly wrong and tragic, but in creating a new
category of extremist, the FBI risks stifling innocent Americans’
First Amendment-protected activity.

At first glance, this should offer some reassurance to Black
Lives Matter activists and protesters from similar organizations.
After all, Black Lives Matter isn’t advocating a black
ethno-state, let alone urging members to harm police officers. Yet,
given the FBI’s history with black activists, it’s
understandable that some people might be wary of engaging in
protests knowing that the FBI has a designation for black identity
extremists.

The FBI’s COINTELPRO surveillance program, begun in 1956,
targeted black civil rights leaders, among many others. The FBI
went so far as to send Martin Luther King Jr. a letter urging him
to commit suicide. The Senate’s Church Committee, which in
1976 published a report on intelligence activities and the rights
of Americans, found that the FBI’s “Black
Nationalist” program included organizations that
weren’t advocating independence at all; they were just
primarily black.

The FBI eventually acknowledged some of its mistakes, but
mistakes can be made more than once. While the FBI’s
counterterrorism document on BIE focuses on violent nationalists,
we should be prepared for the FBI to put black organizations under
increased surveillance. We should also be prepared for the FBI to
establish tenuous links between BIE violence and unrelated crimes.
As Foreign Policy noted, former FBI special agent Michael German
found that the agency connected radical “black
separatists” from the 1970s with attacks in 2010, despite
their being no clear connection.

And it’s not just black activists and civil rights leaders
who need to be wary of increased FBI scrutiny; the bureau’s
long history includes all kinds of specialized snooping based on
race and political views. Shortly after a string of letter bombings
inspired by an Italian anarchist in 1919, J. Edgar Hoover, then the
head of the “Anti-Radical” division, organized a
massive index card database that eventually contributed to hundreds
of deportations and thousands of arrests. In 1920, Assistant
Secretary of Labor Louis Freeland Post canceled more than 1,000 of
1,600 remaining deportation orders after finding little solid
evidence that those rounded up in raids posed any threat.

Innocent people having their rights violated is a risk when the
government casts a wide net, but even if the FBI’s activities
related to BIEs remain narrow, news of the designation and the
FBI’s interest in BIE could prompt a stifling effect on speech.

Research on Internet activity unsurprisingly suggests that
innocent Americans chilled their own online curiosity in the wake
of Edward Snowden’s revelations. If you know that the FBI is
keeping an eye out for BIEs, how likely will you be to attend a
Black Lives Matter protest, even if you have no intention to commit
a crime? And although the FBI’s counterintelligence document
notes that “mere advocacy” of a particular view
“may not constitute extremism, and may be constitutionally
protected,” the use of the word “may” leaves the
FBI with plenty of leeway.

Some protesters may take comfort in the fact that the historian
and King biographer David Garrow views the FBI as too incompetent
to be a threat, telling Foreign Policy that the FBI, “are
often so clueless.” Nonetheless, when it comes to federal
government law enforcement and surveillance, it’s safe to err
on the side of concern.

The murders of police officers in Dallas, Baton Rouge and New
York City were awful and unforgivable. Whatever one thinks about
the police-involved killings of black men such as Walter Scott,
Samuel Dubose, Eric Garner, Philando Castile, and many others,
violence against police officers won’t help implement reforms
that will increase police accountability and transparency.

Yet in responding to this violence the law enforcement community
should resist designations that could be abused, leading to the
surveillance of innocent Americans participating in activities
protected by the First Amendment. It has happened before, and it
can happen again.

Matthew
Feeney
is a policy analyst at the Cato Institute.