issues, does not cause them to outweigh other factors automatically. (See sections 3 and 4).
2. Likelihood of Success on the Merits.
The plaintiffs' case is based on the First Amendment and the Privacy Act, 5 U.S.C. § 552a.
The basis of the First Amendment claim appears to be that the predicate for the investigation was too weak to justify so extensive an intrusion into plaintiffs' activities. The specific FBI measures taken were, apparently, within the proper limits of investigative activity; at least, the plaintiffs have not alleged any abuses of investigatory technique under the standard established by Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972). If the basis of the First Amendment claim is simply that the investigation was without an adequate basis, the Court cannot conclude that plaintiffs are likely to succeed on the merits, since it is well settled that "the FBI would not be violating the First Amendment itself . . . if it decided to investigate a threat that was not so immediate as to permit punitive measures against the utterer." Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1015-16 (7th Cir. 1984) (en banc). The fact that an investigation fails to lead to an indictment or conviction does not create, in itself, a claim under the First Amendment.
Plaintiffs also contend that their First Amendment rights were violated because the investigation was politically motivated. This contention is backed up by the declaration of Professor Ferguson of Columbia University, an expert on 17th century political rhetoric. The Court does not find that the proferred rhetorical analysis makes it likely that the plaintiffs will succeed on the merits of a claim that the investigation was politically motivated. The analysis fails to show that "the language used by FBI agents during their investigation of CISPES reveals intellectual bias and an attitude of hostility toward the group under investigation;" still less do the examples given in the Ferguson Declaration demonstrate "that the FBI investigation was politically motivated." To begin with, it would be unrealistic to suppose that FBI agents, having been told that they were investigating possible terrorists, would refer to their subjects in neutral, or value-free language, assuming that such a style of discourse exists. Also, unless the plaintiffs intend to show that verbal denunciation of an investigative subject necessarily signifies something about the attitudes of FBI headquarters, the fact that FBI agents in the various field offices engaged in vituperative rhetoric proves nothing at all about the motivations of their superiors in authorizing the investigation. CISPES has no First Amendment right to be discussed in friendly terms by the FBI. The fact that the reports of individual agents appear to reveal a negative attitude toward CISPES may reflect the subjective reaction of the agents to what they observed, but the Court bears in mind that the task the agents thought they were performing was an investigation of possible links between CISPES and foreign terrorists. The ultimate decision to initiate, and then to suspend the investigation, was not made by the agents whose evaluations form the basis for Professor Ferguson's declaration, and the Court refuses to ascribe any importance to their characterizations of CISPES' activities as indications of the motivation behind the investigation.
As to the Privacy Act claim, while the Court does not prejudge its merits, the fact that the Act applies only to individuals, 5 U.S.C. § 552a(a)(2), which would preclude a recovery to CISPES as a group, and the possibility that there is a statute of limitations problem in invoking it, leads the Court to believe that the plaintiffs' likelihood of success on this claim is far from obvious. Furthermore, injunctive relief of the kind sought here may well be precluded under the Privacy Act, since the individual plaintiffs' allegations appear to fall into a class of claims for which Congress has authorized only an award of damages. See Hastings v. Judicial Conference of the United States, 248 U.S. App. D.C. 180, 770 F.2d 1093, 1104 (D.C. Cir. 1985), cert. denied, 477 U.S. 904, 91 L. Ed. 2d 562, 106 S. Ct. 3272 (1986). This leaves only the First Amendment claims as a basis for the injunction. These claims do not seem so likely to succeed on the merits that they outweigh the other factors to be considered under Virginia Petroleum Jobbers. (See Sections 3 and 4).
3. Harm to Third Parties.
The extraordinary relief requested by the plaintiffs would impose costs on the FBI and would also involve a considerable effort on the part of the National Archives. Since the harm to plaintiffs discussed above is rather speculative, and the likelihood that plaintiffs will succeed on the merits is less than compelling, it is a serious possibility that the harm the requested relief might cause to the FBI would outweigh the rather fragile allegations of present injury to the plaintiffs. In addition to the immediate costs to the government (both the FBI and the National Archives) of retrieving the files, sealing them, and maintaining the documents once retrieved, there is the further possibility that granting plaintiffs' request would inhibit the FBI in the performance of its investigative duties. It would be inappropriate to impose these burdens on the FBI when there is every indication that the Bureau has made a good-faith effort to undo the ill effects of the investigation. To grant injunctive relief on this scale to the plaintiffs in a case where the Director of the FBI has already stated publicly that the investigation was inadequately grounded, and at a time when the Bureau is still in the process of devising a remedy to the problems complained of, thereby forcing the Bureau to go to extraordinary lengths to protect the subjects of this investigation, would be appropriate only if the harm to plaintiffs were much more emergent than it seems to be, and if the legal bases for their claims were plainly meritorious.
4. Public Interest
In this case, the public interests at stake include the interest in effective law enforcement, the right to privacy as defended by the Privacy Act, and the right to free speech. The plaintiffs' claims under the First Amendment and the Privacy Act have been discussed above, but the essential tension in this case as it affects the public interest is between those claims and the more prosaic, but equally valid, interest in effective police investigation. Evaluation of the public interest is not a popularity contest, and the fact that the public interest is an elusive thing makes the balancing of these interests a delicate task. Nonetheless, the Court is persuaded that in this case the issue is best left for ordinary litigation. The plaintiffs have asked the Court to enjoin the FBI and to order extraordinary protective measures, as if it were obvious that without such relief pendente lite the plaintiffs would suffer undisputed and serious harms which could not be redressed in the courts through a normal lawsuit. The Court is simply not persuaded that this is the case. The relief requested would have a concrete impact on the FBI, in the form of a requirement that the Bureau perform a complicated and expensive task, as well as a less concrete effect, i.e., potentially inhibiting the ability of the Bureau to perform investigations without undue fear that the results, if they failed to lead to a prosecution, would be used against the agency in court. Balanced against this is the conclusion that the harms alleged by the plaintiffs are speculative and contingent, and that the legal basis for the case is less than ironclad. Although the interests at stake are genuine, the form in which they are presented is insufficient to persuade the Court that it would be in the public interest to impair the functioning of the FBI by means of an injunction, prior to a complete airing of the legal merits of the case in the course of ordinary litigation.
Therefore, the plaintiffs' motion for a preliminary injunction is denied.
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