White v. Davis

Opinion

Do the state and federal Constitutions permit police officers, posing as students, to enroll in a major university and engage in the covert practice of recording class discussions, compiling police dossiers and filing “intelligence” reports, so that the police have “records” on the professors and students? Is this “intelligence gathering” by the police covering discussions in university classes and in public and private meetings of university-sponsored organizations, constitutionally valid when such reports “pertain to no illegal activity or acts”? The complaint in the present action challenges this practice of police surveillance as violative of the federal and state constitutional guarantees of freedom of speech, assembly, privacy and due process of law. To this complaint the superior court sustained a demurrer without leave to amend, and thereafter entered judgment in favor of defendant.

We have determined that the superior court erred in sustaining the demurrer; we conclude that the allegations of the complaint state a prima facie violation of freedom of speech and of assembly as well as of the state constitutional right of privacy. As we shall explain, a host of decisions of both the United States Supreme Court and of this court firmly establish the constitutionally enshrined status of freedom of *761 speech and freedom of association in our nation’s universities and colleges. Although the covert surveillance at issue here does not directly prohibit the exercise of protected rights in this realm, it is by now black letter First Amendment law that government activity which even indirectly inhibits the exercise of protected activity may run afoul of the First Amendment proscriptions. Given the delicate nature of academic freedom, we visualize a substantial probability that this alleged covert police surveillance will chill the exercise of First Amendment rights.

In light of this potentially grave threat to freedom of expression, constitutional authorities establish that the government bears the responsibility of demonstrating a compelling state interest which justifies such impingement and of showing that its purposes cannot be achieved by less restrictive means. At this stage of the proceedings, however, defendant has demonstrated no such justification; indeed, because the case arises upon the sustaining of a demurrer, defendant has yet even to file an answer in this litigation. Accordingly, we think that the demurrer should not have been sustained.

Moreover, the surveillance alleged in the complaint also constitutes a prima facie violation of the explicit “right of privacy” recently added to our state Constitution. As we point out, a principal aim of the constitutional provision is to limit the infringement upon personal privacy arising from the government’s increasing collection and retention of data relating to all facets of an individual’s life. The alleged accumulation in “police dossiers” of information gleaned from classroom discussions or organization meetings presents one clear example of activity which the constitutional amendment envisions as a threat to personal privacy and security. Though the amendment does not purport to invalidate all such information gathering, it does require that the government establish a compelling justification for such conduct. Once again, because the case arises after the sustaining of a demurrer, the government has not yet proffered any justification for the alleged covert information network and police dossiers. Consequently, the demurrer should have been overruled on this basis as well.

Accordingly, we reverse the judgment and remand for a trial on the merits.

1. The allegations of the complaint.

Plaintiff Hayden White, a professor of history at the University of *762 California at Los Angeles and a resident taxpayer of the City of Los Angeles, instituted this taxpayer’s suit against defendant Edward M. Davis, Chief of Police of the City of Los Angeles, seeking to enjoin the alleged illegal expenditure of public funds in connection with the police department’s conduct of covert intelligence gathering activities at UCLA. The complaint alleges that with the authorization of Chief Davis, members of the Los Angeles Police Department, serving as “secret informers and undercover agents,” have registered as students at UCLA, have attended classes held at the university and have submitted reports to the police department of discussions occurring in such classes. The complaint also alleges that the undercover police agents have joined university-recognized organizations, have attended public and private meetings of such organizations and have made reports on discussions at such meetings. The reports of these undercover agents are allegedly maintained by the police department in files, “commonly designated as ‘police dossiers’.” Finally, the complaint alleges that the reports and dossiers compiled by the police pursuant to these covert surveillance activities “pertain to no illegal activity or acts.”

Asserting that the expenditure of public funds for such operation is illegal because such activity “inhibits the exercise of freedom of speech and assembly, and abridges the right of due process of law and of privacy” in violation of the federal and state Constitutions, the complaint sought to enjoin the police department from expending funds for siich activities in the future.

Defendant demurred to the complaint, contending that the above allegations failed to state a cause of action in view of past judicial decisions approving the use of undercover agents in police investigations. Defendant also relied heavily on an earlier federal district court decision which had dismissed a similar complaint directed at identical police surveillance operations at UCLA. As we have stated, the superior court sustained the demurrer without leave to amend and thereafter entered judgment in favor of defendant, dismissing the action.

2. As a taxpayer, plaintiff has standing under section 526a of the Code of Civil Procedure to seek an injunction against defendant’s expenditure of public funds in connection with allegedly illegal police investigatory activities.

We have noted that this action is brought as a taxpayer’s suit under section 526a of the Code of Civil Procedure to enjoin the allegedly illegal *763 expenditure of public funds. 1 The use of section 526a as a means of challenging the legality of ongoing police investigatory activities has a long and firmly established heritage in this state. In Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504-505 [193 P.2d 470], for example, a Los Angeles taxpayer instituted an action attacking the constitutionality of a police practice of establishing dragnet “police blockades” at which individuals and automobiles were routinely stopped and searched without a search warrant. In holding that the alleged police conduct violated applicáble Fourth Amendment proscriptions, the Court of Appeal explicitly recognized the propriety of enjoining such illegal conduct by means of a taxpayer’s suit.

Similarly in Wirin v. Parker (1957) 48 Cal.2d 890 [313 P.2d 844], our court upheld a taxpayer’s challenge to a police department practice of conducting surveillance of private residences by means of concealed microphones without first obtaining a search warrant. Observing that “[i]t is elementary that public officials must themselves obey the law” we held in Parker that section 526a provided a general citizen remedy for controlling illegal governmental activity. (Id. at p. 894.)

In view of these California precedents, plaintiff’s present challenge to the alleged police conduct clearly constitutes a justiciable controversy, requiring this court to determine the constitutional validity of the underlying governmental activity; we do not understand defendant to assert otherwise. In this respect, however, the instant case differs fundamentally from the two federal court decisions, Laird v. Tatum (1972) 408 U.S. 1 [33 L.Ed.2d 154, 92 S.Ct. 2318] and Bagley v. City of Los Angeles (C.D.Cal. 1971) (No. 71-166-JWC), upon which defendant places his principal reliance. As we explain, in dismissing complaints challenging governmental surveillance activities, the Laird and Bagley decisions rested on a restrictive federal doctrine of justiciability which does not apply to taxpayer suits in California.

In Laird various individuals, who claimed to be the subjects of an intelligence gathering operation conducted by the United States Army, brought suit to enjoin the governmental activities on the ground that the operation inhibited the exercise of First Amendment rights. The Laird , court phrased the narrow issue before it as “whether the jurisdiction of a *764 federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose.” (Italics added.) (408 U.S. at p. 10 [33 L.Ed.2d at pp. 161-162].) In Laird a five-man majority ruled that such a complaint did not present a justiciable controversy cognizable in federal court. It concluded that an individual must suffer more specific harm than the mere subjection to governmental scrutiny, as the basis for his legal challenge. Because the complaint failed to allege any such specific harm, the Laird majority held that it failed to state a federal cause of action.

In Bagley—the prior action challenging the police surveillance activities at issue here—the federal district court grounded its decision on the same narrow doctrine of justiciability articulated in Laird. Characterizing the plaintiff’s “main complaint” as a fear that the police would, in the future, make some unlawful use of the information obtained through undercover agents, the court concluded that “[t]his contention simply does not present any justiciable issue under the Civil Rights Act.... The mere intention to take some action at some time in the future which might not occur . . . does not present any justiciable question ... at this time.’ ”

Thus, in both Laird and Bagley, the courts held simply that the plaintiffs before them had not suffered the kind of specific harm from the questioned governmental activity which would enable them to challenge the legality of such activity in a federal court. Neither case reaches the question of the constitutionality of the actual intelligence-gathering operation at issue; as the Laird court stated in summarizing its holding: “[O]ur conclusion is a narrow one, namely, that on this record the respondents have not presented a case for resolution by the [federal] courts.” (408 U.S. at p. 15 [33 L.Ed.2d at p. 164].)

As explained above, the principles of justiciability in taxpayer’s suits under section 526a differ fundamentally from the restrictive federal doctrine articulated in Laird. Past cases make clear that under section 526a “no showing of special damage to the particular taxpayer [is] necessary” (e.g., Crowe v. Boyle (1920) 184 Cal. 117, 152 [193 P. 111]); indeed, as we recently stated in Blair v. Pitchess (1971) 5 Cal.3d 258, 267-268 [96 Cal.Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206], “[t]he primary purpose of [section 526a] ... is to ‘enable a large body of the *765 citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.’ [Citation.]”

Thus, we must proceed to the merits of this case and determine whether the allegations of the complaint state a prima facie case of illegal governmental activity.

3. Because of the potentially substantial inhibition of free expression and association posed by the police department’s alleged covert surveillance of university classes and organization meetings, such conduct presumptively violates our state and federal Constitutions.

At the outset we note that for purposes of the present appeal, defendant’s demurrer admits the truthfulness of the properly pleaded factual allegations of the complaint. (See, e.g., Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].) Accordingly, we must assume that the Los Angeles Police Department is conducting a regular, ongoing covert surveillance operation of university classes and university-recognized organizations, and is compiling police dossiers on “matters which pertain to no illegal activity or acts.” The present pleadings do not indicate any limits on the scope or extent of these undercover activities.

In support of the trial court’s ruling that these facts, even if true, do not demonstrate illegal governmental behavior, defendant argues that the undercover activities at issue here are no different than the “normal” undercover police operations which the courts have regularly sanctioned. In this connection, defendant relies heavily on the statement of the United States Supreme Court in Lewis v. United States (1966) 385 U.S. 206, 209 [17 L.Ed.2d 312, 315, 87 S.Ct. 424], declaring that “in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents.” The undercover police activity at issue in Lewis—involving the investigation of specific criminal activity by an undercover narcotics agent—is, however, a far cry from the police surveillance network at issue in this case. Moreover, even within the realm of the investigation of specific crimes, the Lewis court did not grant blanket approval to all covert operations, emphasizing that “in this area, each case must be judged on its own particular facts.” (385 U.S. at p. 212 [17 L.Ed.2d at p. 316].)

The gist, of defendant’s position, as we understand it, is that the *766 gathering of intelligence information to enable the police to anticipate and perhaps prevent future criminal activity is a legitimate and important police function and consequently that under all circumstances the police may routinely utilize undercover agents to fulfill such a function. Although the police unquestionably pursue a legitimate interest in gathering information to forestall future criminal acts, the identification of that legitimate interest is just the beginning point of analysis in this case, not, as defendant suggests, the conclusion. The inherent legitimacy of the police “intelligence gathering” function does not grant the police the unbridled power to pursue that function by any and all means. In this realm, as in all others, the permissible limits of governmental action are circumscribed by the federal Bill of Rights and the comparable protections of our state Constitution. 2

The most familiar limitations on police investigatory and surveillance activities, of course, find embodiment in the Fourth Amendment of the federal Constitution and article I, section 13 (formerly art. I, § 19) of the California Constitution. On numerous occasions in the past, these provisions have been applied to preclude specific ongoing police investigatory practices. Thus, for example, the court in Wirin v. Parker, supra, 48 Cal.2d 890, prohibited the police practice of conducting warrantless surveillance of private residences by means of concealed microphones. And, in a series of cases culminating in the recent opinion in People v. Triggs (1973) 8 Cal.3d 884 [106 Cal.Rptr. 408, 506 P.2d 232], our court has invalidated covert police investigation involving routine and continual surveillance of public restrooms. (See Bielicki v. Superior Court (1962) 57 Cal.2d 602 [21 Cal.Rptr. 552, 371 P.2d 288]; Britt v. Superior Court (1962) 58 Cal.2d 469 [24 Cal.Rptr. 849, 374 P.2d 817].) Indeed, in United States v. United States District Court (1972) 407 U.S. 297 [32 L.Ed.2d 752, 92 S.Ct. 2125], the United States Supreme Court recently rejected a contention—somewhat analogous to that proposed in the instant case—that governmental intelligence operations in “domestic security” cases were immune from Fourth Amendment proscriptions, holding that the traditional constitutional guarantees could not be disregarded.

*767 Unlike these past cases involving the limits on police surveillance prescribed by the constitutional “search and seizure” provisions, the instant case presents the more unusual question of the limits placed upon police investigatory activities by the guarantees of freedom of speech. (U.S. Const., 1st & 14th Amends.; Cal. Const., art. I, § 2.) 3 As discussed below, this issue is not entirely novel; to our knowledge, however, the present case represents the first instance in which a court has confronted the issue in relation to ongoing police surveillance of a university community.

Our analysis of the limits imposed by the First Amendment upon police surveillance activities must begin with the recognition that with respect to First Amendment freedoms “the Constitution’s protection is not limited to direct interference with fundamental rights.” (Healy v. James (1972) 408 U.S. 169, 183 [33 L.Ed.2d 266, 280, 92 S.Ct. 2338].) Thus, although police surveillance of university classrooms and organization meetings may not constitute a direct prohibition of speech or association, such surveillance may still run afoul of the-constitutional guarantee if the effect of such activity is to chill constitutionally protected activity. “In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action.” (N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 461 [2 L.Ed.2d 1488, 1499, 78 S.Ct. 1163].) As the United States Supreme Court stated recently in Healy v. James, supra, 408 U.S. 169, 183 [33 L.Ed.2d 266, 280-281]: “We are not free to disregard the practical realities. Mr. Justice Stewart has made the salient point: ‘Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.’ [Citation.]”

As a practical matter, the presence in a university classroom of undercover officers taking notes to be preserved in police dossiers must inevitably inhibit the exercise of free speech both by professors and students. In a line of cases stretching over the past two decades, *768 the United States Supreme Court has repeatedly recognized that to compel an individual to disclose his political ideas or affiliations to the government is to deter the exercise of First Amendment rights. Thus, for example, in N.A.A.C.P. v. Alabama, supra, 357 U.S. 449, 462 [2 L.Ed.2d 1488, 1499-1500], the Supreme Court struck down a court order requiring the NAACP to disclose its membership lists, declaring: “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 .... Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” And in Talley v. California (1960) 362 U.S. 60, 64 [4 L.Ed.2d 559, 563, 80 S.Ct. 536], the court invalidated a city ordinance requiring all handbills to include the names'and addresses of the persons who had prepared the material, finding that “[t]here can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.” (See also Lamont v. Postmaster General (1965) 381 U.S. 301, 307 [14 L.Ed.2d 398, 402, 85 S.Ct. 1493].) 4

In like manner, covert police surveillance and intelligence gathering may potentially impose a significant inhibiting effect on the free expression of ideas. As the United States Supreme Court only recently observed: “Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech.” (United States v. United States District Court, supra, 407 U.S. 297, 320 [32 L.Ed.2d 752, 768].)

The threat to First Amendment freedoms posed by any covert intelligence gathering network is considerably exacerbated when, as in the instant case, the police surveillance activities focus upon university classrooms and their environs. As the United States Supreme Court has *769 recognized time and again: “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” (Shelton v. Tucker (1960) 364 U.S. 479, 487 [5 L.Ed.2d 231, 236, 81 S.Ct. 247].) “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers [and students] concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . . The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection’ [Citation.]” (Keyishian v. Board of Regents (1967) 385 U.S. 589, 603 [17 L.Ed.2d 629, 640, 87 S.Ct. 675].)

In the past, threats to academic freedom have generally arisen from governmental conduct involving significantly less intrusion into the academic community than posed by the police activities at issue in the instant case. Thus, prior cases have most frequently involved either state statutes inquiring into teacher’s organizational associations (see, e.g., Shelton v. Tucker, supra, 364 U.S. 479) or provisions requiring teachers to sign overly broad loyalty oaths. (See, e.g., Wieman v. Updegraff (1952) 344 U.S. 183 [97 L.Ed. 216, 73 S.Ct. 215]; Baggett v. Bullitt (1964) 377 U.S. 360 [12 L.Ed.2d 377, 84 S.Ct. 1316]; Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399 [99 Cal.Rptr. 129, 491 P.2d 1105].) Our research reveals only one previous instance, Sweezy v. New Hampshire (1957) 354 U.S. 234 [1 L.Ed.2d 1311, 77 S.Ct. 1203], in which governmental inquiry sought to reach inside the classroom itself; the Supreme Court’s stinging condemnation of that intrusive investigative effort illuminates the constitutional issues presented by the instant case.

In Sweezy a state attorney general, in the course of a far-reaching investigation into subversive activities, asked Sweezy, a college professor, several questions about the contents of a guest lecture Sweezy had delivered to a class at the University of New Hampshire. 5 Sweezy *770 refused to answer any questions about the lecture on the ground that such inquiries violated his First Amendment rights, but a state court held the professor in contempt. On appeal, the United States Supreme Court reversed the contempt order, and, in two separate opinions, emphasized in strong language the grave dangers presented by governmental intrusion into the contents of classroom discussion.

Chief Justice Warren, writing for four justices, declared: “The essentiality of freedom in the community of American universities is almost self-evident. ... To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust.” (354 U.S. at p. 250 [1 L.Ed.2d at pp. 1324-1325].) Justice Frankfurter, in a concurrence joined by Justice Harlan, was even more emphatic: “These pages need not be burdened with proof ... of the dependence of a free society on free universities. This means the exclusion of governmental intervention in the intellectual life of a university. It matters little whether such intervention occurs avowedly or through action that inevitably tends to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor. . . . [I]n these matters of the spirit inroads on legitimacy must be resisted at their incipiency.” (Italics added.) (354 U.S. at pp. 262-263 [1 L.Ed.2d at pp. 1331-1332].)

The police investigatory conduct at issue unquestionably poses at least as debilitating a threat to academic freedom as that presented by the governmental inquiry in Sweezy. According to the allegations of the complaint, which for purposes of this appeal must be accepted as true, the Los Angeles Police Department has established a network of undercover agents which keeps regular check on discussions occurring in various university classes. Because the identity of such police officers is unknown, no professor or student can be confident that whatever opinion he may express in class will not find its way into a police file. If the after-the-fact inquiry conducted in Sweezy threatened to cast a pall of orthodoxy over classroom debates, the covert presence of governmental within the classroom itself must cast a deeper shadow.

The crucible of new thought is the university classroom; the campus is the sacred ground of free discussion. Once we expose the teacher or the student to possible future prosecution for the ideas he may express, we forfeit the security that nourishes change and advancement. The censorship of totalitarian regimes that so often condemns developments in art, science and politics is but a step removed from the inchoate *771 surveillance of free discussion in the university; such intrusion stifles creativity and to a large degree shackles democracy.

In other contexts, a number of courts have issued injunctions against continued police surveillance in cases in which such conduct imposed a similar chilling effect on First Amendment rights. In Local 309 v. Gates (N.D.Ind. 1948) 75 F.Supp. 620, strike activity by a local union had been accompanied by occasional outbreaks of violence. The state police initiated a practice of sending several uniformed policemen to all union meetings to take notes of the discussions that there occurred; the police justified the practice as an attempt to obtain information relating to future incidents of violence. The union sought an injunction against the police surveillance practice on First Amendment grounds. After a full hearing, the trial court granted the injunction, finding first that the presence of the police had in fact kept the union members from fully discussing their affairs, and second that the surveillance could not be justified as necessary to prevent violence because no evidence indicated that the union meetings had any connection with the sporadic incidents of violence.

In Bee See Books Inc. v. Leary (S.D.N.Y. 1968) 291 F.Supp. 622, another federal court reached a similar conclusion in a different setting. In Bee See, the New York City Police Department had begun stationing uniformed police officers in “adult bookstores” to oversee the bookstore’s operations and to detect sales of obscene material. Finding that the practical effect of the constant police surveillance substantially inhibited the sale of protected material, the court in Bee See enjoined the surveillance operations, concluding that the government could achieve the legitimate objective of controlling obscenity through alternative means less destructive of First Amendment rights.

The First Amendment analysis undertaken by the courts in Gates and Bee See accords with the approach established by controlling United States Supreme Court precedent. Having found that the governmental activity in question (police surveillance) had a substantial inhibitory effect on the exercise of First Amendment rights, both courts carefully analyzed the proffered governmental explanation for the surveillance to determine whether it was sufficient to justify the resulting impingement on protected expression. 6

*772 As we have discussed above, the facts alleged in the instant complaint demonstrate police surveillance activity which is likely to pose 1 a substantial restraint upon the exercise of First Amendment rights in > university classes and organization meetings. In view of this significant potential chilling effect, the challenged surveillance activities can only be sustained if defendant can demonstrate a “compelling” state interest which justifies the resultant deterrence of First Amendment rights and which cannot be served by alternative means less intrusive on fundamental rights. (See, e.g., United States v. O’Brien (1968) 391 U.S. 367, 376-377 [