# The Fifth Avenue Peace Parade Committee, an Unincorporated Association v. L. Patrick Gray 3rd, Acting Director of the Federal Bureau of Investigation > Court of Appeals for the Second Circuit · June 12, 1973 · 480 F.2d 326 URL: https://www.frixlaw.com/law-library/cases/9459597 ## Case - **Full name:** The FIFTH AVENUE PEACE PARADE COMMITTEE, an Unincorporated Association, Et Al., Plaintiffs-Appellants, v. L. Patrick GRAY 3rd, Acting Director of the Federal Bureau of Investigation, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 12, 1973 - **Citations:** 480 F.2d 326; 17 Fed. R. Serv. 2d 502; 1973 U.S. App. LEXIS 9447 - **Precedential status:** Published - **Opinion:** Dissent by Oakes - **Judges:** Oakes, Hays, Mulligan - **Cited by:** 50 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459597 ## How later opinions describe it (automated extraction) - holding that unsubstantiated “ [alllegations of a subjective ‘chill’ ” do not establish an injury in fact - affirming dismissal of civil rights complaint on ground that allegations of lawful surveillance do not suffice to state a justiciable controversy ## Opinion text OAKES, Circuit Judge (dissenting): I There has been detected a tendency in recent times to justify invasion of constitutional rights on the baf&is of national security. See Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir., 1973) (participants and bystanders arrested in 1972 Washington May Day demonstration entitled to order expunging or restricting use of arrest records compiled during unlawful detention). The tendency has not been wholly recent, of course. See generally Developments in the Law — The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1133 (1972). Big Government has commenced from time to time with the objective of protecting the public’s security but in the process *334 has infringed upon or invaded or jeopardized the only real security of the individual, the security provided by the Bill of Rights. Listed in the Great Bill as belonging to the public is “the righ[t] to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . . ,” under the express terms of the fourth amendment; implied is a “guarantee of certain areas or zones of privacy” under the first, or the fourth and fifth, or the ninth amendments, or the “penumbra” of the Bill of Rights. See Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (U.S., Jan.22, 1973). Included also among these precious rights of the “people” which have been threatened from time to time historically by ill-advised or, occasionally perhaps, malevolent governmental officials in the purported interests of “security” are rights set forth in the first amendment, not just of “the freedom of speech” but also the “right . peaceably to assemble, and to petition the Government for a redress of grievances.” From these rights expressly protected has been wisely and necessarily implied a right to freedom in political associations. See, e. g., Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 , 81 S.Ct. 1333 , 6 L.Ed.2d 301 (1961); Bates v. City of Little Rock, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960). These are the rights surrounding the basic freedom of thought, which carries with it in a democracy the right to protest the conduct of Government. That right o.f protest is one which has had some of its greatest challenges in the recent span of years during which this country has been involved in the most unpopular war of its history. See New York Times Co. v. United States, 403 U.S. 713, 717 , 91 S.Ct. 2140 / 29 L.Ed.2d 822 (1971) (opinion of Black, J.). See also United States v. National Committee for Impeachment, 469 F.2d 1135 (2d Cir. 1972); Cortright v. Resor, 447 F.2d 245, 255 (2d Cir. 1971) (dissenting opinion), cert. denied sub nom. Cortright v. Froehlke, 405 U.S. 965 , 92 S.Ct. 1172 , 31 L.Ed.2d 240 (1972). In the light of the above, I start with the premise — and I suspect the majority would not disagree with the premise, though the majority opinion commences at the other end of the rights-security spectrum — that a group, even a huge group, of people who want to go to the seat of government to protest a war and who do so peaceably have the right not to have their name (and hence their views against the administration or the Congress or the courts or the policies of any in relation to the war) listed in some dossier or table or catalog of protesters and disseminated throughout all the major branches of the “security system” of the United States. To this end, subsidiarily, they also have the right — or individual members of the group have the right — not to have their personal “papers and effects” unreasonably searched or examined. More specifically, there is a constitutional guarantee absent some compelling state interest against compulsory disclosure of membership in or affiliation with a group — particularly a dissident group — that is exercising first amendment freedoms. As Mr. Justice Stewart said for the Court in Bates v. City of Little Rock, supra, 361 U.S. at 523 , 80 S.Ct. at 416 , “Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” As Mr. Justice Harlan said for the Court in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 , 78 S.Ct. 1163, 1171 , 2 L.Ed.2d 1488 (1958): It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective ... restraint on freedom of association. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of associa *335 tion, particularly where a group espouses dissident beliefs. Bates, Patterson and Louisiana ex rel. Gremillion v. NAACP, supra, are the staunchest of authorities for the right of the members of the Fifth Avenue Peace Parade Committee to have remained anonymous and not to have had —for whatever purposes Big Government might wish to make further use of them — their names listed and kept in “security” agency files. II. At the other end of what I have called the rights-security spectrum is the duty of law enforcement agencies in the United States to make certain that the persons of government officials and the property of Government are protected against violence in any form. See Anderson v. Sills, 56 N.J. 210 , 265 A.2d 678, 689 (1970). In this respect I agree wholly with the majority view that “Beyond any reasonable doubt the FBI had a legitimate interest in and responsibility for the maintenance of public safety and order during the gigantic demonstration planned for Washington, D.C.” I also agree completely with the Special Agent in charge, Phillip H. Wilson, that that duty included the duty “to know who was coming, how many were coming, mode of transportation, arrival, when they expected to leave Washington, any individuals that had a potential record of violence, or who might threaten the President’s life, or a Cabinet member, or anything of that nature.” In this respect the Bureau here was acting properly in attempting to determine the size, nature and scope of New York Moratorium activities and in attempting to obtain an estimate of the number of buses and trains that the Peace Parade Committee could hire. The Bureau was acting perfectly properly in observing the bus departures, counting the buses and the passengers leaving the city of New York, as well, of course, in making inquiry of the Allied Bus Company. The court below found and, while there was a considerable absence of discovery below, I have no reason to doubt found properly, that the FBI made no attempt (A) to photograph the departing passengers; (B) to compile a list of the departing passengers; (C) to examine any checks deposited in the account of the “Washington Transportation Fund”; or (D) to compile a list of the persons who signed checks payable to that fund. While the case would have been different if movies had been taken of the departing protesters, or if lists of passengers or contributors had been compiled, the FBI’s overall “surveillance” of the Moratorium activities in New York was perfectly proper and a legitimate exercise of governmental duty to ascertain how big the demonstration was likely to be and to observe whether there were any indications that violence might be in the offing. The fact of the surveillance, thus limited in methodology, was no infringement of rights. III. Thus this case boils down to two questions. The first is whether the listing by the agent who talked to the bank of the names of the individuals listed on the signature cards for the Washington Transportation Fund was improper, particularly if it was subsequently disseminated to other governmental, agencies, including the IRS. The second question is whether the subsequent dissemination by the FBI of a summary of its huge investigation to other agencies of government, including the IRS, operated as an infringement of protected rights. I answer both questions in the affirmative. Concerning the first question, it is totally immaterial to the ascertainment of the number of protesters going to Washington to know or list the names of the people authorized to sign cheeks on the Washington Transportation Fund. In my view, it was perfectly proper for the FBI to inquire of the bank the amount of money in that account, since this was relevant to the number of buses that might be expected to be hired. To gather the names of the authorized signato *336 ríes, however, is no different from ascertaining membership (or leadership) in a “group espous[ing] dissident .beliefs” struck down in Bates, Patterson and Gremillion, supra. If there were dissemination of such a list beyond the FBI, which we do not know (although we do know that the names remain in the FBI files), so much the worse. It is no answer to my mind to suggest as the majority seems to imply that the Committee wanted to publicize its program in the press and through flyers and leaflets or “to make visible” public opposition to the war; publicizing the Committee’s efforts and involuntarily listing the members are two different things. Cf. United States v. National Committee for Impeachment, supra. Nor is it any answer to say that this is a very small infringement or a very little interference with constitutional guarantees. As I have said in another context, “[e]ven a very little chill on a very big right is too much.” Cortright v. Resor, supra, 447 F.2d at 258 (dissenting opinion). Concerning the second or dissemination question, the demonstration having ended peaceably, the protesters having gone home, the persons of government officials and the property of the Government having been secured, I can see no earthly reason why it was necessary for the FBI to disseminate its summary report to the IRS and assorted other intelligence agencies of the Government. It is said that this was done as “routine.” That may be so, but then it seems to me that the “routine” should be changed by order of the court, at least to the extent that the summary report included names of peaceable individuals involved in the demonstration; name listing was unnecessary to what is supposedly a routine intelligence report from one law enforcement agency of Government to another on how a given demonstration was handled. I would except from this, of course, any names of persons who engaged in or were thought to have engaged in any violence whatsoever. I include within it, however, the names of any persons who confined their Moratorium activity to the peaceful exercise of the constitutional rights above set forth. To the extent that the summary report sets forth the names of peaceable demonstrators, I would require that they be expunged. While the war in Vietnam is over, and some might suggest that this whole case is therefore moot, bombing in Southeast Asia proceeds and it may be yet that there will be another demonstration against governmental participation. The injunction that I would require be issued would prevent the infringement of constitutional rights in such event. IV. On the issue of justiciability, I distinguish Laird v. Tatum, 408 U.S. 1 , 92 S. Ct. 2318 , 33 L.Ed.2d 154 (1972), on the basis that the majority opinion there construed the complaint narrowly as containing no allegations of any specific misuse of data gathered by the Army Intelligence network, irrespective of the statements in the dissent to Tatum or how another court might have construed the allegations of the complaint. I cannot believe that Tatum validated clandestine electronic or photographic surveillance, see Donohoe v. Duling, 465 F.2d 196, 201 (4th Cir. 1972); rather I think the holding was “narrow [ly] ” limited to general surveillance without specific misuse of data. See Handschu v. Special Services Division, 349 F.Supp. 766, 769 (S.D.N.Y.1972) (Weinfeld, J.). See also The Supreme Court, 1971 Term, 86 Harv.L.Rev. 1, 131 (1972). Cf. United States v. United States District Court, 407 U.S. 297 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972) (warrantless domestic security wiretap unlawful). Moreover, in the light of recent reports of Watergate-allied events, and the Senate Report, S.Rep. No. 524, 92d Cong.,' 2d Sess. (1972), by Senator Ervin’s Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, indicating that the Tatum majority seriously underestimated the size and scope of Army intelligence activities which included gathering public and private in *337 formation on hundreds of thousands of “politically suspect” persons, one wonders also whether the Tatum case might not be qualified today. Thus I would decide the question of justiciability in the plaintiffs’ favor and also would give them standing. See National Student Association v. Hershey, 134 U.S.App.D.C. 56 , 412 F.2d 1103, 1115 (1969); 83 Harv.L.Rev. 935, 938-939 (1970). The district judge has inspected the FBI’s “summary report” in camera and himself found nothing in it, with one exception, that demonstrates any underlying need for secrecy in respect to it. I would therefore order its disclosure on the basis that it does not come within the “investigatory files” exception to the Freedom of Information Act, 5 U.S.C. § 552 , Frankel v. SEC, 460 F.2d 813 (2d Cir.), cert. denied, 409 U.S. 889 , 93 S.Ct. 125 , 34 L.Ed.2d 146 (1972), because here it is the governmental agency itself which is challenged as having engaged in unlawful conduct, and there is probable cause to believe that at least to a slight extent it did so. I accordingly dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459597. Public record. Not legal advice.