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Hofstra Law Review

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Abstract

The First Amendment was adopted to elevate and defend the central right of a free people: the right to peaceably dissent, to argue, to persuade, and to demonstrate. The United States Army was created to preserve and protect our society. Laird v. Tatum, a class action challenge to military surveillance of civilian politics, demonstrates with frightening precision the degree to which the force of protection can and has imperiled the instrument of freedom.

There was no evidence in the record before the Supreme Court to show the extent to which lawful political activity was chilled and deterred by Army intelligence. The reasons are several. The action was initiated with a modicum of information; much that is known today was not known at the time of the District Court hearing. More important, individuals present in court who were prepared to relate their experiences monitoring civilian activity were not allowed to take the stand and, instead, took their story to the country through a press conference.

This Comment will explore the salient issues raised by Laird v. Tatum and will attempt to answer the following questions: Did the Supreme Court err in denying the political activists an opportunity to present witnesses at a District Court hearing and in deciding the issues on the original papers and appellate briefs? Was the Military Intelligence (hereinafter MI) program complained of an impermissible abridgment of First Amendment rights? Did Justice Rehnquist behave improperly by participating in the Laird v. Tatum decision? Last, to what extent has the Supreme Court's decision in this case affected future adjudication of First Amendment class action challenges to government programs of surveillance and data compilation related to lawful political activity?

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