Model

Ordinance to Protect Free Speech and Online Privacy Protection

Whereas, the First Amendment of the United States protects the freedom of association, assembly,
and speech;
Whereas, the Supreme Court has ruled that freedom of association, assembly, and speech are
fundamental liberties and thus protected by the Fourteenth Amendments guarantee of due
process;
Whereas, the [State Constitution provisions] guarantees [free speech, free association, etc.];
Whereas, [reference any local human rights bills, charters, etc. that guarantees free speech, free
association, etc.];
Whereas, law enforcement agencies have a long and continued history of gathering information on,
monitoring, and infiltrating nonviolent political groups, such acts have a chilling effect on free
association, assembly, and speech, and neither the federal legislature nor the federal courts have
put in place appropriate protections;
Whereas, the Internet has come to function as the modern-day public square, subject to the same
protections as a physical public square;
Whereas, the increased reliance on social media has given activists new ways to organize and
express themselves, while at the same time opening up new doors for police surveillance;
Whereas, recent revelations show that law enforcement agencies across the country have taken to
monitoring social media and in some cases used facial recognition software to arrest individuals
exercising their First Amendment rights;
Whereas, in response to claims that law enforcement was using social media to arrest individuals
exercising their First Amendment rights in Standing Rock, North Dakota 1.6 million people
checked-in at Standing Rock on Facebook in a display of solidarity with the protests and a form of
protest against unwarranted law surveillance of assembly;
Whereas, demonstrations of concern about political and social issues benefit [the City of ] and are
protected the First Amendment;

Whereas, public demonstrations must be visible to the public and their intended target in order to
be an effective means of free speech;
Whereas, social movements, such as Occupy, Movement for Black Lives, and the Water Protectors in
Standing Rock, North Dakota have often been met with heavy-handed, militarized police responses
severely limiting their First Amendment right to free expression and assembly;
BE IT RESOLVED that [the city of] passes this resolution in order to be ensure the protections of the
First Amendment, [relevant state and local provisions], and to ensure online privacy.
I. Definitions
A. Observation or monitoring means surveillance, monitoring, or data collection facilitated by
human intelligence, undisclosed participation by law enforcement agents or informants,
warrantless wiretaps, remote or live imaging, data recorded from cellular telephones, internet, and
other telecommunications devices, or other routine or spontaneous investigative activities.
B. Data Centers means any facilities accepting public funds to facilitate the collection,
dissemination, or analysis of intelligence data concerning non-criminal behavior collected through
observation by federal, state, or local law enforcement agencies.
C. Non-Criminal Intelligence Information means information about activities that are not criminal
in nature, collected outside the context of an investigation of a criminal act that has occurred.
D. Local Law Enforcement Agencies include [ ].
II. Limits on Undercover Infiltration and Political Profiling
A. Local law enforcement authorities shall not engage in undercover infiltration, or undisclosed
participation of any kind, in groups or organizations pursuing First Amendment-protected (speech,
political or religious) activity, absent probable cause that a criminal offense may be committed.
B. Any investigation involving religious institutions or political organizations shall be pursued
through the most minimally invasive methods available, and shall require active and recurring
internal oversight.
C. Local law enforcement authorities shall not select persons, organizations, associations, or
institutions for any investigatory activity, to any extent, on the basis of their First Amendmentprotected (speech, political or religious) activities.
D. Local authorities shall not collect, disseminate or maintain non-criminal Intelligence Information
about the political, religious, or social views, associations, or activities of any person or any group,
association, corporation, business, partnership, or other organization unless such information

relates to criminal activity and there is reasonable suspicion to believe that the person may be
involved.
III. Protections for Public Demonstrations
A. Law enforcement activities undertaken in the context of political demonstrations, or other
activities protected by the First Amendment, shall be subject to the following limitations:
1. Crowd management: Police shall approach non-violent protests from a crowd management, not a
crowd control, perspective and practice de-escalation techniques as much as possible.
2. Free Speech zones: Persons and groups have a right to organize and participate in peaceful First
Amendment protected activity on the streets, sidewalks, and other public ways, and in the parks of
[the City of ] , and to engage in First Amendment protected activity near the object of their protest
so they may be seen and heard, subject to reasonable restrictions designed to protect public safety,
persons, and property, and to accommodate the interest of persons not participating in the
assemblies to use the streets, sidewalks, and other public ways to travel to their intended
destinations, and use the parks for recreational purposes. Notice and plan approval process for
First Amendment protected activity may only be established to avoid situations where more than
one group seeks to use the same space at the same time and to provide Local law enforcement
agencies the ability to provide appropriate police protection, traffic control, and other support for
participants and other persons and may not discriminate on anticipated views to be expressed or
prefer non-First Amendment activities over First Amendment activities. However, it shall not be an
offense to assemble or parade on a [the City of ] street, sidewalk, or other public way, or in a [the
City of ] park, without having provided notice or obtained an approved assembly plan. First
Amendment protected activity that will take place on public sidewalks and crosswalks and will not
prevent other pedestrians from using the sidewalks and crosswalks; or have fewer than 50
anticipated participants; or is for the purpose of an immediate and spontaneous expression of
views in response to a public event shall be exempt from any notice and approval process.

4. Mass arrests: Arrests of persons engaged in First Amendment protected activity must rely on
articulable facts supporting probable cause to believe that every person subjected to arrest
committed a criminal offense, beyond their presence in a particular location at a particular time.
Arrests to pre-empt criminal activity are not authorized. Any person arrested for failure to obey a
time, place, or manner restriction must be allowed an opportunity to depart from the area.
5. Police checkpoints: No screening checkpoint shall subject any person to a search absent
reasonable suspicion of criminal activity.
6. Condition of confinement during mass arrests: Persons subjected to arrest for participation in
First Amendment protected activity shall not be subjected to shackling absent a specific threat of
violence, shall be allowed access to counsel within six hours, and shall be given a copy of any
incident report relating to their arrest to use for exculpatory purposes.

7. Use of force: No non-lethal weapons shall be used until after an act of proportionate violence is
committed, nor shall undercover law enforcement agents commit the act serving as a predicate for
the deployment of nonlethal weapons, nor in any circumstances shall rubber bullets, bean bags, or
wooden dowels be aimed at areas above the thighs.
8. Crowd control technology: Any purchase by law enforcement authorities of equipment for crowd
control purposes (including but not limited to tasers, tear gas, pepper spray, and Long Range Audio
Devices (LRADs)) shall require prior notice to the public, a meaningful opportunity to comment,
and the affirmative approval of the City Council.
IV. Safeguarding Online Privacy
A. Social media and law enforcement. Local law enforcement authorities shall not access
information in an persons cellular phone, computer, e-mail, social media account, or any personal
electronic device or account unless supported by a judicial warrant based on probable cause and
specific to the device or account unless a judicially recognized exception to the Fourth
Amendments warrant requirement exists. Any evidence obtained without a warrant based on
probable cause is not admissible in any criminal proceeding, civil proceeding, administrative
proceeding, arbitration proceeding, or other adjudicatory proceeding nor shall it be used to
establish reasonable suspicion or probable cause to believe that an offense has been committed
unless a judicially recognized exception to the Fourth Amendments warrant requirement exists.
B. Social media and public employment. Employment with [the City of ] shall not be conditioned on
the applicant or employee providing the password to their personal e-mail or social media accounts
or any information in personal e-mail or social media accounts not available to the public. Not
available to the public includes, but is not limited to social media accounts that are private or that
may be viewed only by persons approved by the applicant or employee or information on an
otherwise public social media account that is set as private or accessible only to persons approved
by the applicant or employee.
V. Surveillance and First Amendment Protected Activities
A. Facial Recognition-- Local law enforcement authorities shall not use face recognition to create a
record describing how any individual exercises rights guaranteed by the First Amendment unless
expressly authorized by statute or by the individual for whom the record is created or unless
pertinent to and within the scope of an authorized law enforcement activity where there is
reasonable suspicion to believe the individual has engaged, is engaging, or is about to engage in
criminal activity.
B. Surveillance technologies-- Local law enforcement authorities shall not use aerial surveillance,
police body-worn cameras, cell-site simulators, or license plate readers to create a record
describing how any individual exercises rights guaranteed by the First Amendment unless
expressly authorized by statute or by the individual for whom the record is created or unless
pertinent to and within the scope of an authorized law enforcement activity where there is

reasonable suspicion to believe the individual has engaged, is engaging, or is about to engage in
criminal activity.
VI. Protections on Personal Information
1. [Local law enforcement authorities] shall create any records describing how any individual
exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by
the individual for whom the record is created or unless pertinent to and within the scope of an
authorized law enforcement activity where there is reasonable suspicion to believe the individual
has engaged, is engaging, or is about to engage in criminal activity.
2. [Local law enforcement authorities] shall neither share with nor receive from other local law
enforcement agencies or other local government bodies any records describing how any individual
exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by
the individual for whom the record is created or unless pertinent to and within the scope of an
authorized law enforcement activity where there is reasonable suspicion to believe the individual
has engaged, is engaging, or is about to engage in criminal activity.
3 . Local law enforcement agencies shall not supply Intelligence Information to federal officials
absent reasonable suspicion that a criminal offense has been or may be committed. Incident reports
concerning allegedly suspicious activities shall not be reported to databases directly or indirectly
accessible by federal officials absent reasonable suspicion that a criminal violation has been or may
be committed.
3. Intelligence Information shall not be disseminated to military or private sector organizations.
Intelligence related to a criminal investigation that has been collected by local authorities shall be
disseminated only to law enforcement agencies; local authorities shall not include military or
private sector actors, nor Data Centers (see I.B.) through which military or private sector actors
could gain access directly or indirectly to such data.
4. Local law enforcement agencies shall not participate in inter-agency bodies that disseminate noncriminal intelligence information unless those bodies comply with 28 C.F.R. Part 23 and its
requirements regarding information receipt, maintenance, security, and dissemination.
V. Civil Action and Injunctive Relief
A. Any person subjected to law enforcement activity exceeding the limits imposed by this Ordinance
may file in a court of competent jurisdiction a civil action for declaratory or injunctive relief against
either
1. the local law enforcement agency employing the individual agent whose conduct constituted a
violation,

2. the individual agent(s) responsible for the injury, or both.

3. attorneys fees
1. A litigant who successfully brings a civil action for declaratory or injunctive relief under this act
shall be awarded attorneys fees.

VI. Severability
A. The provisions of this Ordinance shall be severable. If any phrase, clause, sentence, or provision
of this Ordinance is declared by a court of competent jurisdiction to violate the Constitution of the
United States or the Constitution of the State of [State], or if its applicability to any agency, person
or circumstance is held invalid, the validity of the remainder of the Ordinance and its applicability
to any other agency, person, or circumstances shall not be affected.