Bob Smith said he lived in Oxford, Miss. On Facebook, he “liked” pages for Black Lives Matter, Sen. Bernie Sanders (I-Vt.), Memphis Voices For Palestine, Mid-South Peace and Justice, and comedian Rickey Smiley, according to images obtained by The Appeal. “I’m not a cop,” he wrote in a private Facebook message to one activist, adding that he would be interested in attending protests in the Memphis area, but it was a bit of a drive. In lieu of a profile picture, he uploaded an illustration of a Guy Fawkes mask.
That’s because “Bob Smith” wasn’t a person of color, as he had claimed online. On Monday, Sgt. Timothy Reynolds, a white detective with the Memphis Police Department’s Office of Homeland Security, testified in federal court that he had created the account and friended hundreds of activists, according to the Commercial Appeal.
The revelation came out of a civil suit claiming the Memphis Police Department violated a 40-year-old consent decree by gathering intelligence on activists through social media. The suit, among other things, will be a test of whether social media monitoring is the equivalent of the kind of intelligence gathering that took place in the past through infiltration and surveillance of civil rights activists.
Documents released by the department in response to the ACLU of Tennessee’s lawsuit show police extensively monitored social media posts between late 2016 and early 2017 to identify potential threats to public safety. But they also kept records of much more innocuous information.
Using Bob Smith’s Facebook account, detectives collected the names of all 58 people who “liked” a post encouraging community organizers to read the work of Saul Alinsky. One officer flagged a vegan soul food cookout hosted by the Memphis chapter of Black Lives Matter, writing in an email, “looks innocent enough, but here it is in case you are asked about it.” Intelligence briefings contained information about events that were expected to draw large crowds, including a free backpack and school supply giveaway and a festival featuring black-owned food trucks.
Police also put together a detailed PowerPoint presentation with the names and photographs of Black Lives Matter activists who had been arrested at prior protests, and distributed it internally. According to the Guardian, the slide shows also contained information about the protesters’ known associates, some of whom had not been arrested or accused of breaking any laws.
City officials have argued that monitoring social media posts helped them learn that the Ku Klux Klan might be coming to a Black Lives Matter rally, uncover an attempt to hack into the Memphis Zoo’s computer systems and detect a possible threat to law enforcement in Shelby County, where Memphis is located. In court testimony and public statements, they have emphasized that they keep tabs on other groups on all ends of the political spectrum, not just Black Lives Matter.
Monitoring posts on social media was “simply good police work,” Memphis Police Director Michael Rallings said in a statement when the documents were unsealed. But it may have been illegal. In 1978, after an ACLU investigation revealed that police had infiltrated numerous civil rights groups, the city of Memphis entered into a consent decree that forbade police from engaging in political intelligence, defined as “gathering, indexing, filing, maintenance, storage or dissemination of information, or any other investigative activity, relating to any person’s beliefs, opinions, associations or other exercise of First Amendment rights.”
In recent years, the department has “engaged in pervasive and willful violations” of almost every provision of the consent decree, the ACLU of Tennessee claimed in a motion for summary judgment. The organization has asked that the Memphis Police Department be held in contempt of court.
The trial, which began Monday, stems from a lawsuit first filed in 2017, when four activists discovered that they were included on a list of people who weren’t allowed to enter Memphis City Hall without a police escort. According to the ACLU, the “police escort list” included the names of Black Lives Matter protesters, the mother of a teenager killed by Memphis police and other community activists.
Plaintiffs Elaine Blanchard, Keedran Franklin, Paul Garner and Bradley Watkins alleged their inclusion on the “black list,” as they called it, violated the consent decree. So did the department’s use of a program called Geofeedia used to monitor Memphis residents’ social media posts in real-time, they argued.
They have since been removed from the police escort list, according to the ACLU, which intervened to replace them as the plaintiff in the lawsuit.
On Aug. 10, U.S. District Judge Jon P. McCalla wrote that the city had “engaged in ‘political intelligence’ as defined and prohibited by the consent decree.” However, he wrote, there is “genuine dispute” about whether the city infringed upon citizens’ First Amendment rights, or had violated other aspects of the consent decree, such as the ban on sharing personal information outside of law enforcement. Those questions, he ruled, should go to trial.
One issue yet to be determined is whether the ACLU of Tennessee can be considered a party in the original consent decree, and has the standing to enforce it, McCalla wrote in the order. The trial seeks to determine whether the ACLU has standing and, if so, what sanctions the city will face. That will depend on how many provisions of the consent decree were violated, and the precise details of those violations, McCalla wrote.
In response to his order, Memphis officials issued a statement saying they were confident that no one’s First Amendment rights had been violated. They argued that their Facebook monitoring should not be considered the sort of surveillance contemplated by the consent decree. Officials pointed out that the consent decree predates the advent of the Internet, body cameras and smartphones. Memphis’s chief legal officer, Bruce McMullen, described the decree as “woefully outdated and impractical to apply in modern law enforcement.”
“Reading the consent decree literally, and applying it in today’s technological world, would require the police department to turn off all security cameras and body-worn cameras during a protest,” he wrote. “It would prevent police from looking at publicly posted content and severely hamper their ability to provide public safety.”
Oral arguments are expected to conclude Thursday.
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