Mara Verheyden-Hilliard is Executive Director of the Partnership for Civil Justice Fund
This past week many free speech advocates have sounded the alarm about H.R. 347, which President Obama signed into law today.
Much of what has been written about H.R. 347 is not correct. We are writing this to clarify the situation and separate fact from fiction.
Many of the articles and email blasts claim that the law at issue, H.R. 347,“Federal Restricted Buildings and Grounds Improvement Act of 2011,” was written in response to, and targets, the Occupy Movement and is a new full scale assault on dissent in general. There have been alerts, articles and email campaigns urging people to take action asserting that the new bill“criminalizes protest,” is“severely curtailing First Amendment liberties,”“makes protest illegal,” is “outlawing the Occupy Movement,” and makes “free speech a felony.” There is even one campaign titled,“Say Goodbye to Your First Amendment Rights.” Sounds alarming.
At the Partnership for Civil Justice Fund, we have received many calls and inquiries regarding the central question: how does this law affect protestor rights?
We think these facts will help:
Fact: H.R. 347 does not represent a new law regulating free speech rights.
Most of the language of H.R. 347 has been on the books since 2006. H.R. 347 is an amendment to an existing law, 18 USC§ 1752 “restricted buildings and grounds,” that has existed in various forms since 1971. The most significant amendments to the law occurred in 2006.
The law is a bad law -- but it has been a bad law for years. Much of the language that people are talking about this week already exists and has existed for years. The language about “an event designated as a special event of national significance”? Already there. The language about “engaging in disorderly or disruptive conduct in, or within such proximity to” a restricted area? Already there. The language about “conspiracy”? Already there.
Fact: The purpose of the existing law, and why it’s bad.
The law as substantially amended in 2006 is very problematic and people should be rightfully concerned. What the law does (but this is not new) is it creates what is in essence a roving or movable zone of federal law enforcement jurisdiction around any person who is under Secret Service protection or in conjunction with a National Special Security Event (NSSE), as distinguished from a permanently fixed location. This allows for federal prosecution of persons who commit enumerated violations of the law within that zone – and some of those violations read like classic protest activities.
Among other things, the law allows the Secret Service to designate what would normally be public space as a restricted area and for there to be federal prosecution of anyone who “enters or remains” in a restricted area where a person under Secret Service protection will be visiting or which is restricted in conjunction with an NSSE; or who engages in “disorderly or disruptive conduct” with the intent and effect of “imped[ing] or disrupt[ing] the orderly conduct of Government business or official functions;” or who blocks entrance to or exit from a restricted area.
Certain major events are designated as NSSEs, and there are at least three on the horizon this year. They include DNC and RNC major party conventions this summer and the NATO meeting in Chicago in May. Other events that are so designated have included IMF/World Bank meetings, G-8 and G-20 meetings, the Inaugurations, and even the Super Bowl.
Fact: What is new about the H.R. 347 amendments?
1. The existing law required that for a person to be prosecuted under it, they would have had to carry out those described acts both “willfully” and “knowingly.” The requirement of “willfulness” generally means that a conviction requires proof that the person knew his conduct was unlawful. H.R. 347 strikes the “willfully” requirement. The new amendments appear to intend for a person to be convicted only by “knowingly” taking the actions described even if the person does not know that the actions are unlawful. As amended, a conviction arguably only requires proof that a person “knowingly entered” a certain area. This is an effort to lower the bar for prosecutors who would, arguably, no longer have to prove that a person knew his conduct was unlawful.
2. The other major change is the inclusion of the White House and grounds and the Vice President’s residence and grounds as fixed zones of designation. You might wonder why this is even necessary. Of course, entering into the White House and its fenced-in grounds is already a federal violation. We think this particular change is to target demonstration activity, specifically that which occurs on the White House sidewalk just outside the perimeter fence (as detailed in 36 C.F.R.§7.96 it is lawful to protest on the White House sidewalk, which is under National Park Service jurisdiction). We think that the Government wishes to make it easier to prosecute protestors who step up off of the White House sidewalk and stand on the concrete ledge supporting the fence, something which tourists can be seen doing all the time. We are also concerned that the Secret Service seeks to be able to expand its jurisdiction and authority to create pop-up cordoned off restriction zones in front of the White House extending to areas where demonstrators lawfully assemble. The PCJF will be closely monitoring the use of the new amendments and the existing law and is prepared to take legal action where merited.
Fact: There are no new penalties under this law.
Contrary to some of what has been written in the past week, there are no new penalties in the law. The law has also already been used in the past to prosecute demonstrators.
We do think that it is very likely that the Government is looking at the upcoming NSSE events which are sure to draw demonstrations and determining what is in their arsenal to arrest and prosecute persons engaged in protests. They are keenly aware of the growing social justice movement -- more than 6,700 peaceful protestors have been arrested in a sustained and coordinated attack against the Occupy movement since September 2011. This includes the 700 people falsely arrested on the Brooklyn Bridge on whose behalf the PCJF has filed a class action lawsuit seeking to vindicate their constitutional rights.
Fact: What Should A Person Do Who Is Concerned About Free Speech Rights?
We believe in firmly defending fundamental First Amendment rights in the courts and in the streets. Challenge this law’s effect on protest, yes. But it is critical to have accurate information in hand to wage that fight and not to assert the death of free speech rights when we are not at that moment.
As with any law, we are cognizant of any adverse impact on free speech and protest and dissent. While this law, including in its already existing form, is adverse, and serious, it is essential that those of us challenging abridgments of free speech or restrictions on dissent do so from a basis that is factual and accurate.
It is equally important not to spread fear and inaccurate information that has the effect of chilling participation in collective action and demonstrations.
So here’s what else you can do: stay vigilant about our civil rights and civil liberties and be prepared to take action to defend them; sign up for news and analysis you can trust from the PCJF, and most importantly, keep going out to the streets!
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