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144 NEW YORK UNIVERSITY LAW REVIEW [Vol. 82:112
some way that would cause direct harm to respondents.”
176
In other
words, Laird might be read to state only that naked allegations of
“speculative apprehensiveness” are insufficient to establish a cogni-
zable chilling effect.
Lower courts have interpreted Laird to mean that the mere pres-
ence of the police or recording of information at public meetings do
not constitute cognizable First Amendment injuries.
177
However,
when plaintiffs have produced evidence of deterrence (as opposed to
mere allegations of discomfort or dislike), courts have found cogni-
zable First Amendment injuries.
178
In addition, several courts have
distinguished Laird when the government surveillance went beyond
public meetings to closed and private meetings.
179
Other courts have
distinguished Laird when plaintiffs alleged that the police not only
collected information but also used it in harmful ways.
180
Therefore,
the rule in Laird can be limited to situations involving mere allega-
tions of government information gathering in public meetings without
176
Id. at 13; see also Slobogin, supra note 48, at 253–55 (offering such analysis of Laird).
177
See, e.g., Phila. Yearly Meeting of the Religious Soc’y of Friends v. Tate, 519 F.2d
1335, 1337 (3d Cir. 1975) (holding that Laird foreclosed finding “a constitutional violation
on the basis of mere police photographing and data gathering at public meetings”);
Donohoe v. Duling, 465 F.2d 196, 201–02 (4th Cir. 1972) (finding alleged chilling effect of
police photography not cognizable on basis of Laird).
178
For example, in Bee See Books Inc. v. Leary, 291 F. Supp. 622 (S.D.N.Y. 1968),
uniformed police officers routinely were stationed in plaintiffs’ bookstores, which sold
some hard-core pornography. The court concluded that the officers’ presence violated the
First Amendment because evidence showed that it resulted in a considerable drop in book
sales. Id. at 623–24, 626. In Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518
(9th Cir. 1989), Immigration and Naturalization Service (INS) agents wearing bugging
devices entered churches and recorded religious services. The INS argued that Laird con-
trolled, but the court concluded that the church had established a cognizable First Amend-
ment injury because it had alleged “a concrete, demonstrable decrease in attendance at
those worship activities.” Id. at 522.
179
See, e.g., Handschu v. Special Servs. Div., 349 F. Supp. 766, 770–71 (S.D.N.Y. 1972)
(noting that government informers infiltrating groups, urging members to engage in illegal
activities, and keeping dossiers on members “would seem by far to exceed the passive
observational activities” upheld in Laird); White v. Davis, 533 P.2d 222, 226–27, 229 (Cal.
1975) (distinguishing Laird and concluding that “[a]s 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”). But
see Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 780–81 (6th Cir. 1983) (holding
that undercover agents investigating drug trafficking in high school did not create chilling
effect because “there is not a single allegation that the covert operation in and of itself
resulted in tangible consequences”).
180
Phila. Yearly Meeting, 519 F.3d at 1338–39 (finding “immediately threatened injury
to plaintiffs by way of a chilling of their rights to freedom of speech and associational
privacy” when collected information was available to nonpolice parties and was disclosed
on television); Alliance to End Repression v. Rochford, 407 F. Supp. 115, 116–17 (N.D. Ill.
1975) (holding that allegations of wiretapping, unlawful entry, and dissemination of infor-
mation “differ greatly” from those in Laird).