From Memphis, with Love: A Model to Protect Protesters in the Age of Surveillance

Abstract

In 1978, after two years of contentious litigation, the City of Memphis entered into a unique agreement with its citizens: it signed a consent decree, stipulating that it would halt its interference with First Amendment–protected activities. More specifically, the Consent Decree barred the City from surveilling protesters—the very conduct that triggered litigation. Fast forward forty years. In 2018, narratives of police brutality dominated the nation’s headlines. Consequently, protesters demonstrated from the streets of Ferguson, Missouri to Oakland, California. And in Memphis, Tennessee, those who protested were often met with an all-too-familiar response—surveillance by the Memphis Police Department. That is until the Western District of Tennessee found that the City had violated the terms of its own agreement. The court’s message was undeniably clear—the Memphis Consent Decree is alive and well. Memphis is by no means an outlier in police–civilian relations. After all, police departments across the country surveil protesters. But Memphis is an outlier in terms of the method it has chosen to address this issue. As the surveillance of protesters and the capacity to surveil protesters grow, the Memphis Consent Decree offers a model for future legislation that better safeguards First Amendment values. This Note accordingly narrates the story of Memphis, its successes and failures, and the lessons it holds for hundreds of cities, for decades to come.