[Below you will find a chapter from a book on the real-life effects of various provisions of the Bill of Rights in protecting the rights of grass-roots American citizens. This chapter is about the right of free assembly, and it focuses on a court case brought by nine Washingtonians — including me — against the FBI and the DC Police Department. The book is by ELLEN ALDERMAN and CAROLINE KENNEDY. — Yes, the Caroline Kennedy who as I write has just been named U.S. Ambassador-designate to Japan.]
In Our Defense: The Bill of Rights in Action
By ELLEN ALDERMAN and CAROLINE KENNEDY
Copyright © 1991, William Morrow and Company, Inc., New York, pages 71-88
Freedom of Assembly: Hobson v. Wilson
“Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
By August of 1969, Abe Bloom and Arthur Waskow were spending almost every night planning a massive demonstration against the Vietnam War scheduled for November 15 in Washington, D.C. Bloom, an electronics engineer by training, was treasurer of the New Mobilization Committee to End the War in Vietnam(NewMobe). Waskow, a PhD historian and scholar, was a member of the New Mobe Steering committee. Like Bloom, he had attended or spoken at every major demonstration in Washington in the 1960s, including one where he was arrested for chaining himself to the door of the Selective Service building to protest the draft.
One of the New Mobe’s biggest challenges was to get the local black community to participate. Though many black leaders condemned the war, the local black community often had other concerns. “At that particular time blacks were struggling for things like decent housing and decent job opportunities” ’ says Reverend David Eaton, the senior minister at All Souls Church’ who was active in both the civil rights movement and the peace movement. “The liberal white community seemed to be only interested in the Vietnam war situation. So you had a difference in priorities lwhich] did generate some animosity.”
The New Mobe had secured a commitment from Coretta Scott King to lead the November march, and New Mobe volunteers were actively recruiting local black leaders such as Eaton and Julius Hobson. Although not nationally well known, Julius Hobson was a central figure in Washington’s black community. A statistician for the Department of Health, Education, and Welfare (HEW) for most of his working life, Julius Hobson led the effort to desegregate Washington, D.C. He successfully sued the school system in 1962, led demonstrations to desegregate housing and hospitals in Washington, and as president of the Congress of Racial Equality (CORE) from 1960 to 1964, he organized more than eighty picket lines on downtown retail stores, resulting in the initial employment of five thousand black citizens. In the fall of 1969, Julius Hobson was engaged to marry Tina Lower, a divorced white mother of two who worked at the civil service Commission. Hobson was perhaps the most prominent local black leader to oppose the Vietnam War’ Along with Mrs. King, he was scheduled to speak at the New Mobe demonstration on November 15.
The New Mobe was also anxious to have the participation of the Black United Front (BUF), a local organization whose founders included Julius Hobson and Reverend David Eaton. But some members of the BUF, including Reverend Doug Moore, were less than enthusiastic. Moore felt that Washington, D.C., a city with a large black population, spent too much of its resources on white demonstrators. The huge protests, often organized by predominantly white groups like the New Mobe, required extra work by city administrators, police, traffic control, and the department of sanitation. Moore floated the idea of asking the New Mobe to donate money to the black community to offset the expenses of the demonstrations.
In August, the BUF set up a meeting with the New Mobe Steering Committee to discuss Moore’s proposal. Both Abe Bloom and Arthur Waskow attended. Moore suggested that the New Mobe pay a one-dollar-per-demonstrator fee to the BUF’ The idea became known as the “head tax.” According to Bloom, the proposal ”immediately created a split in the [New Mobe] because all the people were participants in various civil rights activities. They related to the black community, they wanted to get participation from the black community, and many of them felt we should honor such a request. On the other hand, there was a feeling that the right to demonstrate … was inherent … and should not be taxed in any way.”
Within the BUF the idea also faced opposition. Julius Hobson was furious at the attempt to charge money. “He strongly believed that as Washington is the center of the government, this is where demonstrations should happen,” says Tina Hobson.
Arthur Waskow, however, thought the idea had merit. Largely at his urging, the New Mobe was still debating the proposal when Abe Bloom received a typewritten letter signed “Rev. Moore,” demanding that the New Mobe make an immediate contribution of twenty-five thousand dollars to the BUF. People at the New Mobe found the tone of the letter “incredibly offensive” says Waskow. “The initial [proposal], whether one agreed with it or not, was an authentic proposal to be negotiated. It was the letter which made enormous trouble.”
This was exactly what the FBI had in mind. Although the Hobsons, Waskow, Eaton, and Bloom did not know it, the letter did not come from Reverend Doug Moore at all. It was written by an agent in the Washington Field Office (WFO) of the FBI as part of a secret counterintelligence program known internally as COINTELPRO.
FBI agents assigned to COINTELPRO were directed to investigate groups and individuals that the Bureau perceived as dangerous. They were also ordered to thwart the efforts of these targets through disruption, interference, and harassment. Antiwar and civil rights groups were targeted by two branches of COINTELPRO: COINTElPRO-New Left and COINTELPRO-Black Nationalist.
COINTELPRO-New Left was established in May 1968. A memo from Charles Brennan, chief of the Internal Security Section of the FBI, recommended a counterintelligence program “to expose, disrupt, and otherwise neutralize” those in the antiwar movement.
Our Nation is undergoing an era of violence and disruption caused to a large extent by various individuals generally connected with the New Left. Some of these activists urge revolution in America and call for the defeat of the United States in Vietnam. They continually and falsely allege police brutality, and do not hesitate to utilize unlawful acts of violence to further their so-called causes. The New Left has on many occasions viciously and scurrilously attacked the Director and the Bureau in an attempt to hamper our investigation of it and drive us off the college campuses.
The memo was initialed “O.K. H” on the bottom’ signifying that J. Edgar Hoover approved.
Five days later, a three-page letter was sent to FBI field offices around the country informing them of the new program and exhorting them to take action.
The purpose of this program is to expose, disrupt, and otherwise neutralize the activities of the various New Left organizations, their leadership and adherents… In every instance, consideration should be given to disrupting the organized activity of these groups and no opportunity should be missed to capitalize on organizationa and personal conflicts of their leadership.
COINTELPRO-Black Nationalist was established in response to increasing militancy in the civil rights and black power movements after the Newark and Detroit riots of 1967. An “airtel,” or FBI medium-priority communication, sent by headquarters to FBI field offices around the country, set forth the five major goals of COINTELPRO-Black Nationalist:
l. Prevent the coalition of militant black nationalist’groups (an effective coalition of black nationalist groups might be-the first step toward a real “Mau Mau” in America, beginning of a true black revolution).
2. Prevent the “rise of a messiah” who could unify, and electrify, the militant black nationalist movement.
3. Prevent violence on the part of- black nationalist groups’. Through counterintelligence it should be possible to pinpoint potential troublemakers and neutralize them before they exercise their potential for violence.
4. Prevent militant black nationalist groups and leaders from gaining respectability, by discrediting them to three separate segments of the community… First, to the responsible Negro community, second, to the white community’-both the responsible community and to “liberals” who have vestiges of sympathy for militant black nationalists simply because they are Negroes. Third… in the eyes of Negro radicals.
5. Prevent the long-range growth of militant black nationalist organizations especially among youth.
Both COINTELPROs were to be kept completely secret. FBI memos repeatedly stressed that no counterintelligence action was to be initiated by field offices without specific authorization from headquarters in Washington, and “under no circumstances should the existence of the program be made known outside the Bureau.”
A rift over the head-tax issue between antiwar activists and the black community was tailor-made for the FBI. In fact, on August 21 , 1969, an airtel outlining the controversy between the New Mobe and the BUF was sent from FBI headquarters to field offices in eight cities where the New Mobe had representatives. It stated, “the Washington Field Office has recommended, and the Bureau concurs that this is an ideal situation to exploit through the counterintelligence program… . Recipient offices are to furnish recommendations for such action without fail… The [New Mobe] can be accused of racism in refusing to go along with this demand.”
In late September, Julius Hobson informed the New Mobe that he refused to sit on the podium or speak at the November 15 demonstration if any money was collected for the head tax.
By October 1, a special agent in the FBI’s Washington Field Office had drafted a news release to be provided to a “friendly” news source for publication a week before the demonstration. It was titled “Members of the BUF Express Shock at Hobson Stand.” According to the FBI’s own cover memo, the release was intended to embarrass the BUF, cause Black leaders to view each other with suspicion, and discredit Julius Hobson, possibly forcing him to resign from the BUF. The release claimed that an unidentified BUF official felt Hobson’s refusal to speak at the November 15 demonstration “clearly revealed him to be an Uncle Tom, willing to sell out the interests of the black community to white intellectuals, thus exposing his black brothers to a violent confrontation with the police should disorders take place during peace movement demonstrations.” It was a total fabrication.
Meanwhile, DougMoore, who had never seen the letter the FBl sent to Bloom over his name, was waiting for a reply to his original proposal for a head tax. On October 10, the FBI’s New York field office proposed sending a leaflet that would appear to be the New Mobe response. In accordance with headquarters, instructions, the leaflet was designed to widen the rift between the New Mobe and the BUF. Five days later, headquarters approved the plan. The authorization said, “Take all necessary steps to protect the identity of the Bureau as the source of these leaflets.”
In early November, Doug Moore received the FBI’s leaflet. It was yellow. It had a black monkey on it, and it was titled “Give them Bananas!” (opposite). The leaflet was signed “Sid,” whom’ Moore presumed to be Sidney Peck, another member of the New Mobe Steering Committee.
After the leaflet was received, the atmosphere between the groups became one of hostility and “mutual disgust,” says Tina Hobson. Communication between the organizations was practically nonexistent.
Despite the widening rift between the black and white groups” the mass rally was still set for Saturday, November 15. Three days before, there was a March Against Death. The forty-hour candlelight procession began at Arlington National cemetery where demonstrators picked up placards bearing the names of GIs killed in Vietnam, carried them past the white House, where they called out the names of the dead soldiers, then continued on to the Capitol, where each sign was placed in a coffin.
The November 15 demonstration also went ahead as planned. The New Mobe’s efforts had paid off. In spite of freezing temperatures and a cold north wind, it was the biggest rally ever held in Washington until that time. More than three hundred thousand demonstrators marched up Pennsylvania Avenue, then down Fifteenth street to a rally at the Washington Monument. Demonstrators bearing forty coffins filled with the names of the war dead led the march, followed by a large banner that read “Silent Majority for Peace.” Senators Eugene McCarthy and George McGovern, along with Coretta King, Dick Gregory, and Julius Hobson, linked arms to lead the parade. It lasted into the afternoon and the rally continued until dark.
Although black leaders participated in the march, the campaign to encourage black involvement did not succeed. According to Tina Hobson, “[Our] efforts to get black people to march were not effective. We were disappointed that there weren’t more black citizens that participated.”
It is impossible to know how the demonstration would have been different, or if the BUF and the New Mobe would have ever united without FBI interference, but both sides trace the hostility between them back to the head-tax episode. The FBI continued to capitalize on it. Four months later, the Bureau was still sending anonymous memos referring to the head tax to New Mobe Steering Committee members. And FBI agents continued to produce phony press releases and leaflets designed to split the New Mobe leadership. The FBI also tried to take advantage of religious tension within the New Left. In September 1970, Abe Bloom and Arthur Waskow, both Jewish, were among the recipients of a New York Times article titled “Jews Fear Anti-Zionism of New Left,” reprinted in pamphlet form and mailed by the FBI.
Then, on March 8,1971, an FBI field office in Media, Pennsylvania, was burglarized,. One of the stolen documents bore the heading “COINTELPRO-New Left.” On April 27, at J. Edgar Hoover’s direction, a memo went to FBI field offices around the country immediately terminating all COINTELPROs. At the time there were five: New Left, Black Nationalist, White Hate Groups, Espionage, and Communist Party, USA. In exceptional instances, the memo announced, counterintelligence actions would still be considered on an individual basis.
Actually, COINTElPRO’s existence did not become widely known until four years later, when information about FBI practices was made public during the 1975 Senate hearings of the Select Committee to Study Governmental Operation with Respect to Intelligence Activities (known as the Church Committee, after its chairman, Senator Frank Church). Extensive coverage in the Washington media detailed the use of agents provocateurs placed by the intelligence agencies to disrupt demonstrations, as well as widespread electronic eavesdropping, mail interception, bank account monitoring, and “trash covers” (the FBI systematically goes through a person’s trash).
Reading the newspapers, Abe Bloom and Julius and Tina Hobson realized that they had been active in events and organizations targeted by the FBI. They joined forces, brought in Arthur Waskow and David Eaton, among others, and decided to file suit. They also recruited Anne Pilsbury and Dan Schember, two young lawyers who would stay with the case, Hobson v. Wilson, for the next twelve years.
The complaint was filed in July 1976. When filing a lawsuit, the plaintiff must allege specific injuries that will be proven at trial. But because of the secret nature of COINTELPRO, the plaintiffs did not have specific information. Although they had heard generally about COINTELPRO, the plaintiffs had no idea how extensive the program was or whether they had actually been among its targets. And they had no idea who within the FBI was responsible.
Originally, the plaintiffs sued ten defendants, mostly people whose names had appeared in the papers during the Church Committee hearings and other “unnamed agents.” They later added twenty-eight more names, but dropped all but five by the time of trial. The men who were finally charged were Charles Brennan, George Moore, Cortland Jones, GeralC Grimaldi, and Gerould Pangburn.
From 1966 to 1970, Charles Brennan had been chief of the Internal Security Section in FBI headquarters, where he supervised COINTELPRO-New Left. In 1970-7I, Brennan was assistant director in charge of the Domestic Intelligence Division. He supervised both COINTELPRO-New Left and COINTELPRO-Black Nationalist.
Brennan apparently wrote the memos announcing both the creation and termination of COINTELPRO-New Left. The plaintiffs’ lawyers obtained Brennan’s name as a result of his testimony before the Church Committee.
George Moore had also testified. Moore was chief of the Racial Intelligence Section in FBI headquarters from 1967 to 1974.The section supervised field office implementation of COINTELPRO-Black Nationalist. The memo setting forth the goals of COINTELPRO-Black Nationalist went out over his name.
Cortland Jones had been the special agent in charge of the Washington Field Office, a liaison position between the WFO and FBI headquarters. From 1964 to 1974, he was WFO security coordinator, supervising nine squads, including squads 5 and 7. Squad 5 handled racial matters and COINTELPRO-Black Nationalist. Squad 7 was responsible for the New Left and COINTELPRO-New Left.
Gerald Grimaldi was a special agent in the WFO from 1956 to 1971. He was a member of squad 7, then became the WFO’s COINTELPRO-New Left coordinator and later squad 5 supervisor. He was the author of the Rational Observer, a phony student newspaper that attacked student antiwar activities. It was published by the FBI and distributed at American University in Washington, D.C.
Gerould Pangburn, a WFO agent, succeeded in splitting his case from the others and would eventually receive a separate trial on the issue of damages.
The plaintiffs chose these five men as defendants because their initials appeared on FBI documents relating to COINTELPRO generally (Brennan and Moore), the WFO’s participation in the program (Jones), or specific COINTELPRO actions (Grimaldi and Pangburn).
The plaintiffs also sued the District of Columbia and members of the Metropolitan Police Department (MPD). (Jerry Wilson, chief of the MPD at the time, was listed as the first defendant.) The case was brought under a federal civil rights conspiracy statute. The plaintiffs claimed that the FBI defendants conspired with one another, and with members of the Metropolitan Police Department, to violate their First Amendment right to “peaceably assemble and petition the government for a redress of grievances.”
In guaranteeing the fundamental right of assembly, the Supreme Court has recognized that protecting individual rights in times of stability and social harmony is easy. It becomes more difficult in times of crisis, but that is precisely when the right to assemble, to speak out, and to disagree with the prevailing orthodoxy must be most vigilantly protected. In 1937, Chief Justice Charles Evans Hughes wrote, “The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press, and free assembly in order… that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”
From this basic right to assemble peaceably, the Supreme court developed the broader concept of freedom of association, the right to join with others for the purpose of political expression. This is what Abe Bloom, Arthur Waskow, Tina and Julius Hobson, David Eaton, and their respective organizations claimed they were trying to do.
The plaintiffs’ first move in the pretrial discovery process was to request their FBl files under the recently passed Freedom of Information Act. Although the plaintiffs suspected that they had been under surveillance, it was only upon receiving their files that they were sure. In all, they received over thirteen thousand pages of documents. The files showed that their phones had been tapped and that FBI agents had listened to both their business and personal conversations. The FBI had also monitored their bank accounts; copies of the plaintiffs’ checks and bank statements were in the files. Their business associates, neighbors, and friends had been questioned by the FBI and reports of the conversations written up for the files. The FBI had requested additional background checks and investigations on Tina Hobson from the Civil Service Commission during the period when she and Julius were engaged.
The plaintiffs also discovered that the FBI had planted informants in the New Mobe, the BUF, and other political organizations. The files, however, did not mention any COINTELPRO actions. Huge passages had been deleted by the FBI, and Pilsbury and Schember thought references to COINTELPRO must have been in those portions. After more than a year of battling over the redactions, Dan Schember went to the FBI reading room to review some COINTELPRO files that had recently been made available under another Freedom of Information Act lawsuit. Only then did he discover that under the FBI filing system, in order to ensure additional secrecy, a COINTELPRO action taken against a particular person would not appear in that person’s file. It would only appear in the COINTELPRO files.
Reading COINTELPRO files, Schember discovered documents relating to the plaintiffs, including those regarding the head-tax issue and the November 15 demonstration, and first read of COINTELPRO-Black Nationalist. He also discovered a secret world of government surveillance, counterintelligence, disruption, and interference dating back to the 1950s.
J. Edgar Hoover built the FBI and trained its agents in the post-World War II period when communism was perceived as one of the greatest threats to the American way of life. In 1956, Hoover authorized the first COINTELPRO against the Communist party. In 1961, a counterintelligence operation was authorized against the Socialist Workers party. Covert actions in these two COINTELPROs averaged one hundred per year in the period between 1956 and 1971.
Then, in 1964, during a period of increasingly violent reaction to the civil rights movement, the FBI instituted a COINTELPRO against the Ku Klux Klan and other “white Hate” organizations, such as, the American Nazi party and the National States Rights party. Covert actions in this category averaged forty per year until 1971. According to the FBI, these COINTELPROs were designed to prevent violence. The Klan program was a success’ according to Charles Brennan, “because of the money factor. We were able to buy so many informants in the Klan that we got to the point where we were running some of the chapters” ’ Brennan says that the FBI was then able to dissuade Klan members from violence by proposing alternative action or additional planning.
COINTELPRO-Black Nationalist and COINTELPRO-New Left followed in 1967 and 1968.
In the late 1960s, in Washington, the FBl felt besieged. One of its prime responsibilities was to ensure that the government and residents of Washington were prepared and protected. Yet hundreds of thousands of demonstrators were “marching on Washington” four or five times annually, with many smaller rallies taking place at the Pentagon, the Selective Service building, the Capitol, and the White House throughout the year. It was the FBI’s belief that radical groups would use these events for their own purposes of disruption. In advance of most demonstrations, rumors and rhetoric were flying. Most protestors wanted to march peacefully, but some wanted to block traffic into the city, enter the Pentagon, or climb the White House fence. There were a more militant few who advocated burning bridges, throwing bombs, and killing police. It was hard for the FBI to know which threats, if any, to take seriously.
Looking back on that time, Brennan says’ “I think it is difficult to understand the nature of the problem we were facing, unless you lived through that period and experienced the disorder, the disruption, and the bombings. The pressure on the FBI was just intense. From the White House to the FBI; from Congress to the FBI; from Hoover down to agents within the FBI, because pressure was being put on him. He would call and say, ‘I had a call from the president this afternoon, and he’s concerned. He wants some answers and he wants a memorandum on his desk tomorrow morning.’ You were bombarded.”
To provide those answers, the FBI needed accurate information. COINTELPRO was supposed to provide it. But the FBI was having trouble defining its targets, especially within the New Left movement. During the Hobson trial, Brennan described “New Left” as “an amorphous grouping … a broad spectrum of individuals who were engaged in social dissent, whose central feature was advocacy of violence to smash the existing system’ ” He went on to say that the New Left also included those who did not advocate violence, but whose activities would open them to Communist infiltration. As a result of this lack of definition, the FBI continually expanded its counterintelligence operation to include a widening range of people and groups. The Church Committee found that FBI headquarters developed over five hundred thousand domestic intelligence files, sixty-five thousand of which were opened in 1972 alone.
Names of people considered “potentially dangerous to the national defense of public safety of the United States” were placed on lists for dissemination to U.S. attorneys around the country. In a national emergency, a U.S. marshal would be sent to arrest them. Although such lists had been kept since the end of World War II, the growth of the lists in the 1960s and 1970s reflected the same inability to define the target group. In 1970, Charles Brennan reorganized the lists so the FBI could “zero in on the most dangerous individuals and ‘lop off’ the top level immediately.” According to the FBI, Priority I included “individuals who have
shown the greatest propensity for violence” and those with “special training in sabotage, espionage, guerilla warfare, etc.” According to Arthur Waskow, it meant “all but shoot on sight.” It turned out Waskow was Priority I, though he did not learn of this until after the Hobson lawsuit was under way.
In addition to gathering information, COINTELPRO-New Left and Black Nationalist, like their predecessors’ were designed to prevent violence. Under the FBI rationale, disrupting targeted groups would make them less effective and therefore less violent’ Brennan explains: “All of the movements I saw went from a passive stage through a more active stage up to a violent stage. We had to consider, ‘How the hell can we stop it?’ [The New Left] was a massive movement and the only way that you could possibly affect it would be [to] divide and conquer.”
Hobson and the other plaintiffs argued that in targeting people whom it had no reason to believe were engaged in violence or illegal activities, and actively interfering with their lawful efforts for political change, the FBI exceeded its mandate’ The scope of this mandate had been clearly articulated as early as 1924 by Attorney General (later chief Justice) Harlan Fiske stone: “The Bureau of Investigation is not concerned with the political or other opinions of individuals. It is concerned only with their conduct, and then only as such conduct is forbidden by the laws of the United States.” When asked by the Church Committee “whether anybody at any time during the course of [COINTELPRO activityl ever discussed [its] constitutionality or legal authority,” George Moore replied, “No, we never gave it a thought.”
“We just went one step further and that one step was generated by the problems confronting us,” says Charles Brennan. “We took that extra step because we felt that we had God protecting us. He was sitting up there on the fifth floor saying ‘Go Get ‘Em.’”
But by the time the Hobson case came to trial’ in November 1981, J. Edgar Hoover had been dead for nearly ten years. At trial, the plaintiffs introduced the “Bananas” leaflet, the Rational Observer (a phony student newspaper published by the FBI), and evidence of FBI efforts to disrupt the November 15 demonstration. The plaintiffs also detailed FBI interference with other demonstrations. For example, during one protest, FBI agents intercepted demonstrators’ CB transmissions and directed them to march outside the approved parade route, knowing they would be arrested. In preparation for another demonstration, the FBI filled in housing forms with fictitious addresses, causing thousands of out-of-town participants to arrive in Washington only to find they had no place to sleep. The evidence of surveillance, harassment, and disruption was extensive.
The plaintiffs faced a major problem, however. In order to re-recover damages they had to prove that they had suffered actual injury as a result of the FBI’s activities. Under the law, it was not enough that they felt what the FBI did was wrong, or even that they could prove it was unconstitutional.
According to the plaintiffs’ attorney, Anne Pilsbury, “The judge made it real clear that we had to show that the FBl’s improper goal had been carried out and it had affected these people, either emotionally or financially. That was the hard part’ because these were all normal, happy, well-balanced individuals. A lot of it was water off their backs. They were damned if they were going to be deterred, and they were very apt to say so too.” It seemed ironic to Pilsbury that because the plaintiffs were so committed to their political beliefs, and therefore unlikely to be daunted by harassment, they faced the risk of not being able to prove harm.
The issue of harm was certainly not artificial to the FBI defendants. Under the law of conspiracy, as long as each of them knew the general scope and essential nature of COINTELPRO, and as long as one of them had acted to further its general objectives, each of them could be held liable for all COINTELPRO actions. Furthermore, in 1971, the Supreme Court had made it possible to sue individual members of the government personally for their official actions, and to try the case in front of jurors who could award damages as they saw fit. (Previously, it had only been possible to sue a government agency or the U.S. government itself, and the amount of the recovery was fixed by law.)
Each of the FBI agents stood to Iose a substantial part of his life savings for allegedly violating the First Amendment rights of people who had not been aware of the FBI’s activities, and who by their own admission were not deterred. After all, three hundred thousand people had assembled peaceably in the November 15 demonstration led by Coretta King and Julius Hobson. Charles Brennan believes that the plaintiffs “weren’t able to show any damage. We weren’t going around chopping people’s heads off or doing really nasty dirty stuff. This was a get-even suit.”
The FBI agents also argued they were unfairly selected as defendants, chosen because of their positions rather than their actions. They claimed that their names were obtained randomly, making it unfair to hold them personally responsible. Brennan’s and Moore’s names came from their Church Committee testimony, and the names of the others were obtained from files selectively released by the FBI. Had documents bearing other names been released, they argued, other men would have been sued. In addition, they claimed, because all five lived in the Washington area they were easy targets. They pointed out that others who were more difficult to locate (the New York agent who wrote the “Bananas” leaflet, for example) were not brought to court.
Brennan and his co-defendants also felt that the FBI itself should have been sued instead of the agents. They argued that they received approval for each COINTELPRO action and remained within the guidelines set down by J. Edgar Hoover. When this argument failed, they asserted that, as public employees, they
were immune from liability. Under the law at the time of trial, the judge told the jury they could find a defendant immune only if he sincerely and reasonably believed his officially approved conduct was lawful.
Apparently, the jury did not believe anyone could consider COINTELPRO’S actions lawful. After five days of deliberations, they awarded a total of $711,937.50 to eight plaintiffs’ Abe Bloom and Arthur Waskow each were awarded $93,700. Tina Hobson and David Eaton each were awarded $81,062.50.
“The jury got it,” says Waskow, “They really got it’ That was pretty amazing. Totally aside from the massive amount of monev, they got the sense that the Constitution does matter. There are rights, and you can sav people are damaged if their rights are taken away, even if they can’t figure out how to say they lost money on it. That felt really good.”
On appeal, the U.S. Court of Appeals for the D.C. Circuit upheld the jury’s verdict against the FBI defendants. It wrote, “The extraordinary nature of these charges makes this an easy case. Whatever authority the Government may have to interfere with a group engaged in unlawful activity… it is never permissible to impede or deter lawful civil rights/political organization, expression or protest with no other direct purpose and no other immediate objective than to counter the influence of the target associations.”
The Court continued: “Government action’ taken with the intent to disrupt or destroy lawful organizations’ or to deter membership in those groups, is absolutely unconstitutional. The Government could not constitutionally make such participation unlawful; consequently it may not surreptitiously undertake to do what it cannot do publicly. Nor can we fathom any conceivably legitimate governmental interest in such an undertaking.”
The court found, however, that there was insufficient evidence of a conspiracy between the FBI and the Metropolitan Police Departmeni, or between the police and the District of Columbia. It also ruled that the claims of Abe Bloom and three other plaintiffs were barred by the statute of limitations. Consequently’ the court found the jury’s damage awards against each defendant excessive and ordered the trial court to redetermine the amounts.
The FBl defendants were all retired by this time, facing personal financial ruin. “Working in the FBI is a great job, but you don’t get rich,” says Brennan. “No way [was] anybody going to dig $130,000 out of me.” But he had faith that somehow the FBI would take care of them. After all, they had grown up in the FBI, each of them had at least twenty years of service.
A settlement was finally negotiated in 1986. The plaintiffs accepted $46,000 in full satisfaction of their claims. Attorney General Edwin Meese agreed that the FBI would indemnify its agents and pay the sum.
Arthur Waskow received a total of $8,000: $4,000 for emotional distress, intimidation, and fear resulting from FBI exploitation of his religious background, and from the discovery that he was priority I on the security index; $2,250 for being subject to three years of “extensive and intrusive investigation”; $1,250 for emotional distress and injury to his reputation caused by the FBI’s
extensive questioning of his neighbors; $350 for injury to his reputation caused by being one of the purported authors of the “Bananas” leaflet; and $150 for emotional distress from the leaflet itself.
The Reverend David Eaton received a total of $7,500: $3,000 for emotional distress and injury to his reputation resulting from a COINTELPRO letter threatening death to each member of the BUF Board of Convenors, except Eaton, unless the BUF ceased its efforts to combat drug sales in the black community; $2,500 for the head-tax controversy and the “Bananas” leaflet; $2,000 for being listed on the agitator index and having reports about his behavior circulated to other federal agencies.
Julius Hobson died in 1977. Tina Hobson received $8,500: $3,500 as compensation for humiliation and embarrassment resulting from FBI inquiries into her personal premarital relations with a prominent black leader; and $5,000 for FBI intrusion into her employment.
Tina Hobson split the money among her children and Julius’s children, because she felt they had suffered the most from the FBI’s interference into their family life. Arthur Waskow has used his money “for good politics,” and Reverend David Eaton’s money is helping to put his children through college.
When it comes to the future, “I am inclined to guarantee that you will never see a resumption of that type of activity by the FBI again,” Charles Brennan said at trial, “The delineation of what the FBI can or can’t do is very clear’ and the Department of Justice has taken much firmer control over the FBI so that it is not going to operate in the autonomous manner that it did under Mr. Hoover.”
Tina Hobson is not so sanguine’ “I think that since our case over, somebody else better follow. You have to try to create a government that’s close to your heart’s desire. If you don’t do it somebody else will.”’