USDOJ Seal

u.s.
..;tice
U.S. Department 6.
of Justice
Office of Legal Counsel

Washington,
Washington, D.C.
D.C. 20530
20530

General
Office of the Assistant Attorney General

5, 2004
April 5,
Memorandum for Glenn A. Fine
Inspector General
Re: Constitutionality ofCertain
of Certain FBI
FBIIntelligence
Intelligence Bulletins
Bulletins
You have asked whether two Federal Bureau of Investigation (''FBI'')
('TBI") intelligence
bulletins violated the First Amendment or otherwise unconstitutionally blurred the
acts. See Memorandum for
distinction between lawful protest activity and illegal terrorist acts.
III, Assistant Attorney General, Office of
of Legal Counsel, from Glenn
Jack L. Goldsmith ill,
Memoranda From
A. Fine, Inspector General, Re: Requestfor
for OLC Legal
Legal Assessment
Assessment of
ofMemoranda
FBI Special Agent Coleen Rowley (Feb. 5,2004).1
5, 2004).' We conclude that they did not.
FBI

I.
the FBI
FBI issued
issued Intelligence
Intelligence Bulletin
Bulletin no.
no. 89
89 ("Bulletin
("Bulletin 89"),
89"),
On October 15,2003,
15, 2003, the
which addressed one item labeled "Tactics Used During Protests and Demonstrations."
of Bulletin 89 advised that "mass marches and rallies against the
The opening paragraph of
occupation in Iraq" were scheduled to occur on October 25,2003,
25, 2003, in Washington,
D.C,
.occupation
Washington; D.C.,
information indicating that "violent or
and San Francisco, and although the FBI had no information
of these protests, the possibility exists that
terrorist activities [were] being planned as part of
of the activist community may attempt to engage in violent, destructive, or
elements of
of the bulletin described "tactics [that] have
disruptive acts." The next six paragraphs of
been observed by U.S. and foreign law enforcement
enforcement agencies while responding to
criminal activities conducted during protests and demonstrations." The protest tactics
identified
identified in Bulletin 89 included, for example, Internet activity to recruit, raise funds,
and coordinate activities; false documentation to gain access to secure facilities; marches,
banners, and sit-ins;
sit..,ins; vandalism, physical harassment, and trespassing; drawing large
numbers of
of police officers
officers to a specific
specific location in order to weaken
w€aken security at other
locations; use of
homemade
bombs;
and
intimidation
of
law
of
oflaw enforcement
enforcement through
videotaping. The bulletin did not classify
classify such protest tactics as lawful
lawful or unlawful, but
rather identified
them
as
"possible
indicators
of
protest
activity."
Bulletin 89 concluded
identified
ofprotest
by stating: "Law enforcement
enforcement agencies should be alert to these possible indicators of
of
The FBI maintains that "neither intelligence bulletin violated the First Amendment...
Amendment ... and neither
'unconstitutionally blurred' the line between
protected First Amendment activities and criminal conduct."
between.protected
conduct"
Memorandum for Jack L. Goldsmith III,
Office of
m, Assistant Attorney General, Office
of Legal Counsel,from
from Valerie
Caproni, General Counsel, Federal Bureau of
Memorandumfrom
Inspector
General
,Caproni,
of Investigation, Re:
Re: Memorandumfrom
Inspector
General
Regarding
IntelligenceBulletins
Bulletins
2 (Mar.
2004).
You
have
provided
us with
your
views
on this
Regarding Intelligence
2 (Mar.
22,22,
2004).
You
have
notnot
provided
us with
your
views
on this
issue.

protest activity and report any potentially illegal acts to the nearest FBI Joint Terrorism
Task Force."
On November 15,2003,
15, 2003, the FBI issued Intelligence Bulletin no. 94 ("Bulletin
of which was labeled "Potential for
94"), which addressed two items, the second of
of the Americas (FTAA) Annual Meeting." That
Criminal Activity at Free Trade Area of
of foreign trade ministers to be held from November
item concerned an annual meeting of
"historically...
... draws
16-21,2003, in Miami. It noted that the FTAA annual meeting "[h]istorically
large scale demonstrations, both peaceful
peaceful and by those individuals or groups who wish to
meeting," and stated that the upcoming meeting was "expected to attract
disrupt the meeting,"
anywhere from 20,000 to 100,000 demonstrators ....
. . . . [m]any [of
[of whom] are openly
planning to disrupt the conference through violence rather than merely conducting
organized demonstrations."
demonstrations." The
The bulletin
then referenced
referenced Bulletin
Bulletin 89
89 as
as providing
providing
organized
bulletin then
"guidance on
on tactics
tactics used
used during
during protests
and demonstrations"
demonstrations" that
that could
could "assist
"assist...
in
"guidance
protests and
... in
preparations
for
the
FTAA
annual
meeting."
Bulletin
94
concluded
by
stating:
"Law
preparations for the FTAA annual meeting." Bulletin 94 concluded by stating: "Law
enforcement agencies
agencies that
that develop
develop information
information regarding
regarding possible
terrorist threats
threats or
or
enforcement
possible terrorist
threats
of
violent
or
destructive
civil
disturbance
directed
against
the
FTAA
should
threats of violent or destructive civil disturbance directed against the FTAA should
forward this
this information
information to
to the
the nearest
nearest Joint
Joint Terrorism
Terrorism Task
Task Force."
Force."
forward

n.
II.
clarifying the narrow scope ofthe
of the question before us. You have
We begin by clarifying
asked whether Bulletin 89 or Bulletin 94 violated the First Amendment or otherwise
unconstitutionally blurred the line between lawful protest activity and illegal terrorist
of the bulletins. We.
We
acts. In addressing those questions, we confine ourselves to the text of
are in no position to assess how the bulletins were in fact implemented, and 'Our
our advice
therefore does not address that matter. Nor are we in any position to assess the factual
of any of
of the assertions in the bulletins, and we therefore assume that they are
accuracy of
of this memorandum.
true for purposes of
The applicability of
of the First Amendment here is not obvious. The intelligence
of
bulletins, by their terms, did not purport to proscribe or regulate the expressive conduct of
the protestors. Bulletin 89 merely provided information
information to various law enforcement
enforcement
agencies (including local agencies that may have little experience with large-scale
demonstrations) about protest tactics that had been observed by U.S. and foreign law
enforcement agencies "while responding to criminal activities conducted during protests
enforcement
of specific
specific
and demonstrations." Although this guidance was provided in the context of
demonstrations in Washington, D.C., San Francisco, and Miami, the protest tactics
identified in the bulletins were generic and not linked to the content of
of those particular
identified
protests or to the viewpoints of
of the protestors. The bulletins, furthermore, did not
enforcement agencies to take any action against the
authorize or encourage law enforcement
protestors. fustead,
Instead, law enforcement
enforcement agencies were asked to ''be
"be alert" to these "possible
of protest activity" and to "report" to the nearest FBI Joint Terrorism Task
indicators of
Force "potentially illegal acts" or "information
"information regarding possible terrorist threats or
threats ofviolent
of violent or
or destructive
destructive civil
civil disturbance."
disturbance." (Emphasis added.)
threats

2

of violent or destructive civil
"Illegal acts," "terrorist threats," and "threats of
disturbance" do not fall within the protection of the First Amendment. The Supreme
Court repeatedly has held that the Constitution does not protect "violence or other types
of
of potentially expressive activities that produce special harms distinct from their
v. United States
States Jaycees,
Jaycees, 468
468 U.S.
U.S. 609,
609, 628
628 (1984);
(1984); see
see
communicative impact." Roberts
Roberts v.
also Wisconsin
Wisconsin v.v. Mitchell,
Mitchell, 508
508 U.S.
U.S. 476,484
476, 484 (1993)
(1993) ("[A]
("[A] physical
physical assault
assault isis not
not by
by any
any
of the imagination expressive conduct protected by the First Amendment.");
stretch of
NAACP
v. Claiborne Hardware
U.S. 886,916 (1982) ("[V]iolence
("Violence has no
NAACP v.
Hardware Co., 458 U.S.
sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may
2
of 'advocacy.
'advocacy.'").
not constitutionally masquerade under the guise of
,,,).2 The evident purpose
of
information about, such unprotected
of the bulletins was to warn against, and obtain information
activity. Bulletin
Bulletin 89
89 distinguished
distinguished "extremist"
activities (e.g.,
(e.g., "physical
"physical
activity.
~'extremist" protest activities
harassment"
and
"use
of
weapons")
from
"traditional"
protest
activities
(e.g., "marches"
"marches"
harassment" and "use of weapons") from "[t]raditional" protest activities (e.g.,
and ''banners'');
"banners"); and
and Bulletin
Bulletin 94
94 explained
explained that
that the
the FTAA
FTAA annual
annual meeting
meeting historically
historically
and
brought
"peaceful"
demonstrators
as
well
as
"individuals
or
groups
who
wish[ed]
to
brought "peaceful" demonstrators as well as "individuals or groups who wish[ed] to
disrupt the
the meeting."
meeting." By
By seeking
seeking "reports"
"reports" from
from local
local law
law enforcement
enforcement agencies
agencies only
only on
on
disrupt
potentially
illegal
acts
or
threats
of
violence,
the
bulletins
were
limited
to
criminal
potentially illegal acts or threats of violence, the bulletins were limited to criminal
activity that
that falls
falls outside
outside the
the scope
scope of
of the
the First
First Amendment.
Amendment. Neither
bulletin,
activity
Neither bulletin,
furthermore,
purported
to
restrict
the
message
or
expressive
conduct
of
the protestors.
protestors.
furthermore, purported to restrict the message or expressive conduct of the
Because
the
bulletins
did
not
address
protected
speech
activity
and
did
not
directly
Because the bulletins did not address protected speech activity and did not directly
regulate the
the protestors,
they raise
raise no
no core
core First
First Amendment
Amendment concerns.
concerns. Indeed,
Indeed, even
even if
if the
the
regulate
protestors, they
reporting
requested
by
the
bulletins
had
not
been
limited
to
illegal
acts,
terrorist
threats,
reporting requested by the bulletins had not been limited to illegal acts, terrorist threats,
and threats
threats ofviolent
of violent or
or destructive
destructive civil
civil disturbance,
disturbance, it
it is
is doubtful
doubtful that
that the
the mere
mere
and
monitoring
and
reporting
of
lawful
protest
activity,
without
more,
would
raise
monitoring and reporting oflawful protest activity, without more, would raise any
any
substantial First
First Amendment
Amendment problems.
problems.
substantial
It nonetheless might be argued that the bulletins, by requesting surveillance of
of
public protests for
for possible unlawful
unlawful activity, will deter protestors from exercising their
rights.33 The Supreme Court has recognized that "constitutional
First Amendment rights.
2

term "threats" does not appear to refer to communications, but rather
As used in the bulletins, the tenn
to general indicators of
of impending danger or harm
harm. In any event, true communicative ''threats''
"threats" are not
entitled to First Amendment protection, either. See Virginia
Virginiav.v.Black,
Black,538
538U.S.
U.S.343,
343,359
359(2003)
(2003)(First
(First
Amendment does not protect "[t)rue
"[t]rue threats," or statements "where the speaker means to communicate a
of an intent to commit an act of
of unlawful violence to a particular individual or group of
of
serious expression of
individuals"); Brandenburg
v. Ohio, 395 U.S. 444,
444,447
Brandenburg v.
447 (1969) (First Amendment does not protect
of violence or unlawfulness
unlawfulness "where such advocacy is directed to inciting or producing imminent
advocacy of
cf. Chaplinsky v.
v. New Hampshire, 315 U.S.
lawless action and is likely to incite or produce such action"); cf
words—those which by thentheir
568,571-72 (1942) (First Amendment does not protect "insulting or 'fighting' words-those
of the peace").
very utterance inflict injury or tend to incite an immediate breach of

3
The bulletins, which were
we~e disseminated only to law enforcement
enforcement agencies,stated
agencies, stated that they should
not "be released to the media, the general public or over non-secure Internet servers." As such, the
protestors at the identified
identified demonstrations were likely unaware of—and
of-and therefore could not claim to have
been "chilled" by—the
after the identified
identified demonstrations had
by-the bulletins. On November 25,2003, however, after
York Times
Times article
articleregarding
regardingBulletin
Bulletin 89,
89,the
theFBI
FBI
occurred and in response to a November 23, 2003, New York
of the Times.
Times.
. posted Bulletin 89 on its website and discussed it in a public letter to the Executive Editor of
effect (as opposed to the surveillance
Therefore, any conceivable claim that the bulletin had a "chilling" effect
itself, which presumably would have occurred evenin
even in the absence of
of the bulletin) would be limited to those
planning to protest after
after Bulletin 89 had been made public.

3

violations may arise from the deterrent, or 'chilling,' effect
effect of
of governmental [efforts] that
of a direct prohibition against the exercise of First Amendment rights." Board
fall short of
of County Comm
Comm'rs
v. Umbehr, 518 U.S.
U.S. 668, 674 (1996) (internal quotation marks and
o/County
'rs v.
citation omitted). The Supreme Court has also stated, in the context of
of addressing a
Fourth Amendment claim, that the government's warrantless, covert, electronic
surveillance relating to domestic security matters implicated First Amendment "values"
because "the fear of
of unauthorized official
official eavesdropping [might] deter vigorous citizen
dissent and discussion of
of Government action in private conversation." United States v.
Court for the Eastern District of
Michigan, 407
United States Dist. Court/or
ofMichigan,
407 U.S.
U.S. 297,
297, 313-14
313-14
(1972) ("Keith"). But in the only case in which such a First Amendment claim was
actually presented,
the Supreme
Supreme Court
Court held
held that
that aa "subjective
"subjective 'chill'"
'chill'" allegedly
stemming
actually
presented, the
allegedly stemming
from
the
government's
"collection
of
information
about
public
activities"
was
insufficient
from the government's "collection ofinfonnation about public activities" was insufficient
to state
state aa cognizable
cognizable injury.
injury. Laird
v. Tatum,
Tatum, 408
U.S. 1,6,
1, 6,13
(1972). Plaintiffs
Plaintiffs in
in Tatum
to
Laird v.
408 U.S.
13 (1972).
Tatum
alleged that
that the
the "data-gathering
"data-gathering system"
system" implemented
implemented by
the Army
Army in
in the
the late
late 1960s
1960s as
alleged
by the
as
part
of
its
role
in
quelling
local
civil
disorders
was
"broader
in
scope
than
is
reasonably
part of its role in quelling local civil disorders was ''broader in scope than is reasonably
necessary for
for the
the accomplishment
accomplishment of
of aa valid
valid governmental
governmental purpose"
and had
had "a
"a
necessary
purpose" and
constitutionally
impermissible
chilling
effect
upon
the
exercise
of
their
First
Amendment
constitutionally impermissible chilling effect upon the exercise of their First Amendment
rights." ld.
Id. at
at 10,
10,13.
The Supreme
Supreme Court
Court held
held that
that because
because the
the Army
Army had
had not
not exercised
exercised
rights."
13. The
aa power
power that
that was
was "regulatory,
"regulatory, prospective,
prospective, or
or compulsory
compulsory in
in nature,"
nature," the
the alleged
alleged "indirect
"indirect
effect" on
on plaintiffs'
First Amendment
Amendment rights
rights was
was not
not an
an injury
injury recognized
recognized under
under Article
Article
effect"
plaintiffs' First
III
of
the
Constitution.
Id.
at
11-14.
III of the Constitution. ld. at 11-14.

Tatum therefore did not address the merits of plaintiffs' First Amendment claim,
but Justice Marshall-who
Marshall—who dissented in Tatum-later
Tatum—laterwrote
wrote an
an in
in chambers
chambers opinion
opinion
rejecting a similar "chilling" claim. See Socialist Workers
Workers Party
Party v.v.Attorney
Attorney General,
General,419
419
U.S. 1314,
1315-20 (1974) (Marshall, J., in chambers). The Socialist Workers Party
1314,1315-20
("SWP") there argued that the attendance of
of government informants at the National
Convention of
of the Youth Socialist Alliance would "chill free participation and debate,
Id. at 1316.
and may even discourage some from attending the convention altogether." !d.
After determining that the "specificity
"specificity of
of the injury claimed" by SWP was sufficient
sufficient to
After
HI standing, Justice Marshall held that the alleged "chilling effect" could
confer Article ill
injunction against the government's undercover investigation, which was
not justify
justify an injunction
Id. at 1318,
1318,1320.
"limited" in scope and "entirely legal." ld.
1320. A similar analysis can be
Comm. v.
v. Gray,
Gray, 480 F.2d 326,333
326, 333 (2d Cir. 1973),
found in Fifth Avenue
Avenue Peace Parade Comm.
of Appeals followed Tatum and held non-justiciable
where the Second Circuit Court of
plaintiffs' allegation that the FBI's investigation of their Vietnam war protest had an
unconstitutional "chilling" effect. "Beyond any reasonable doubt," the court stated, "the
FBI had a legitimate interest in and responsibility for the maintenance of
of public safety
and order during the gigantic demonstration planned for Washington, D.C.": "No matter
how
the intent
intent of
of its
its organizers,
organizers, the
the assemblage
of the
the vast
vast throng
throng planning
to
assemblage of
planning to
how peaceful
peaceful the
protest
the Vietnamese
Vietnamese action
action and
and to
to express
express their
their sincere
sincere and
and conscientious
conscientious outrage,
outrage,
protest the
presented
an
obvious
potential
for
violence
and
the
reaction
of
the
Government
was
presented an obvious potential for violence and the reaction of the Government was
entirely justifiable.
but
entirely
justifiable. That
That reaction
reaction was
was not
not to
to deter,
deter, not
not to
to crush
crush constitutional
constitutional liberties
liberties but
to
assure
and
to
facilitate
that
expression
and
to
minimize
catastrophe."
Id.
at
332.
to assure and to facilitate that expression and to minimize catastrophe." ld. at 332.

4

The case law is sparse in this area, but to the extent that it is on point, it supports
our conclusion that the FBI bulletins did not violate the First Amendment by "chilling"
expressive conduct. In contrast to the intrusive surveillance found to violate the Fourth
Amendment in Keith, or the undercover operation at issue in Socialist Workers
Workers Party-Party—
of which was held to violate the First Amendment—the
neither of
Amendment-the bulletins here did not
mandate any systematic, covert, or electronic surveillance. Instead, the bulletins simply
requested reports from various protests on observed public acts that might be illegal, such
of violent or destructive civil disturbance." Cf
Cf. Katz v.
v. United States, 389 U.S.
as "threats of
347,
351
(1967)
("What
a
person
knowingly
exposes
to
the
public
. . . is not a subject of
of
347,351
...
Fourth Amendment protection."). Given the limited nature
nature of
of such
such public monitoring,
monitoring,
Fourth
any
possible
"chilling"
effect
caused
by
the
bulletins
would
be
quite
minimal
and
any possible "chilling" effect caused by the bulletins would be quite minimal and
substantially outweighed
outweighed by
the public
interest in
in maintaining
maintaining safety
safety and
and order
order during
during
by the
public interest
substantially
large-scale
demonstrations.
Cf.
University
of
Pennsylvania
v.
EEOC,
493
U.S.
182,200
large-scale demonstrations. Cf University ofPennsylvania v. EEOC, 493 U.S. 182,200
(1990) (First
(First Amendment
Amendment not
not implicated
implicated where
where alleged
alleged burden
on speech
speech is
is speculative,
speculative,
(1990)
burden on
remote,
and
attenuated).
We
therefore
discern
nothing
in
the
bulletins—which
focused
. remote, and attenuated). We therefore discern nothing in the bulletins-which focused
upon
unprotected
criminal
activity
without
imposing
any
burdens
on
the
protestors—
upon unprotected criminal activity without imposing any burdens on the protestorsrising to
of aa First
First Amendment
violation.
rising
to the
the level
level of
Amendment violation.

Nor do we read the FBI bulletins to have improperly blurred the distinction
between lawful protest activity and illegal terrorist acts. The bulletins listed "possible
indicators of
of protest activity" and requested reports only on potentially "illegal acts" or .
"terrorist threats." Neither bulletin purported to offer
offer guidance on the constitutional line
between protected and unprotected activities, and we do not think that the bulletins fairly
identified protest tactics (e.g., "sit-ins" or "banners")
can be read to indicate that all of the identified
enforcement agencies to police lawful
lawful
were unlawful. And far from encouraging law enforcement
expressive activity, the bulletins did not recommend any action against the protestors.
Indeed, the FBI, in issuing these and other intelligence bulletins, may reasonably expect
enforcement agencies to perform their duties in conformance
conformance with the
the policing law enforcement
Cf. United States v.
v. Verdugo-Urquidez,
Verdugo-Urquidez,494
494U.S.
U.S.259,
259,274
274(1990)
(1990)
Constitution. Cf
(members of
of the Executive Branch "are sworn to uphold the Constitution, and they
presumably desire to follow its commands"). In any event, even if
if the bulletins could be
read to have somehow blurred the line between protected and unprotected activity, it is
doubtful that the mere monitoring and reporting oflawful
of lawful activity, without more, would
doubtful
raise any constitutional problems.
.
if we may be of
of further assistance.
Please let us know ifwe

qJ-./.~:£
Jack L. Goldsmith ill
HI
Assistant Attorney General

5