A University of North Carolina-Chapel Hill campus police officer went undercover in August to join a group protesting the removal of a Confederate statue, according to other protesters. That’s legal, but it’s bad for free speech.
At the center of this conflict is Silent Sam, a statue erected in 1913 to honor UNC alums who fought and died in the Civil War. Sam differs a bit from other controversial statues in that it doesn’t represent a specific historical figure. On the other hand, at the statue’s dedication, an industrialist gave a speech praising former Confederate soldiers for defending “the Anglo Saxon race during the four years after the war,” a reference to the Ku Klux Klan.
At some of these events during the last week of August, a man identified himself to protesters as an auto mechanic named Victor. As quoted in The Herald-Sun:
“He seemed like a nice guy,” [protester Lindsay] Ayling added. “I talked to him a lot about my dissertation research. He talked to other people about their children. One activist is bilingual, so he spoke Spanish to her to gain her trust.”
Other protesters told the local ABC affiliate about their interactions with Victor:
“He told me he was an auto mechanic in Durham, that his brother owned an auto body shop, that he was a war veteran with PTSD,” said UNC graduate student Maya Little, one of the protest organizers. “We were about bringing people in. We’re about being inclusive. So my thing was like great, awesome, thank you for being here to support us and help us.”
Heather Redding, a community supporter of the protest said she saw “Victor” regularly.
“He was very friendly. We chatted of course about Silent Sam, but I also shared personal things with him,” Redding said.
That would’ve been the end of the story, if there hadn’t been a fire and explosion at the foot of a tree called the Davie Poplar on November 2. (The tree is named after Revolutionary War General William R. Davie; a campus myth says he decided to put the school in the shade of that tree. Old-timey and charming — but even in 1792, a university couldn’t make a decision without a committee, and it was actually a committee that chose the site.) A former biology student has been arrested and charged with setting the fire, according to WRAL.com. No motive is known, but there does not, as of yet, appear to be any connection to the Silent Sam protests.
On November 3, campus police were working on the Davie Poplar case when student protesters saw “Victor” among them — this time, in uniform, as Officer Hector Borges. They went to confront Borges, and one recorded the audio of the interaction on a cell phone.
In the recording, Borges doesn’t ever quite confirm or deny the allegation, but responds noncommittally, saying things like, “my job is to provide safety” and “I’m representing the university right now.” In another recorded confrontation, a protester tells Borges he lied; Borges responds, “It’s called police work.”
It’s not unheard of for a university to use undercover officers. The University of Chicago did the same thing in 2013, with an on-duty detective marching in plain clothes in a protest calling for a trauma center to be re-opened on campus. (An on-campus trauma center is planned for 2018.) And the nature of undercover work means that we can’t know how often it really happens; at best, we know how often the officer is exposed.
The use of undercover officers to keep tabs on people engaged in First Amendment activities, however, creates a serious risk of chilling speech. We at FIRE believe undercover officers should not be used to infiltrate groups engaged in First Amendment activity as a general surveillance technique.
In 2006, the ACLU of Northern California wrote a guide of “best practices” for surveillance of First Amendment activity. The good advice contained therein is applicable here. The guide recommends that surveillance should only happen when there is a reasonable suspicion of criminal conduct (beyond the “civil disobedience” of protesting); a relationship between the First Amendment activity and the conduct being investigated; and when there are no less-chilling alternatives (such as openly investigating crime as police are trained to do, or using security cameras in public locations).
The threat posed by undercover surveillance of protest groups goes beyond the chilling effect on the speech of those groups. It also contributes to the sense that police and student activists are adversaries. That mistrust complicates the ability of uniformed police officers to do their jobs and reduces the likelihood that students will come forward with information they otherwise would have shared.
Public safety is the ultimate goal of campus law enforcement. We hope UNC’s police, and all campus police, consider the effect of this kind of activity before deciding to spy on students exercising their First Amendment rights in the future.