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HR 347: Goodbye Free Speech and Protest or a ‘Kerfuffle’?

On Monday Feb. 27, the House passed the ‘‘Federal Restricted Buildings and Grounds Improvement Act of 2011” sponsored by Rep. Thomas Rooney (R-Fla) in a vote of 399 to 3; the Senate passed its companion S 1794 on Feb. 6 unanimously.

The innocuous sounding bill isn’t about landscaping; it’s about creating federal grounds for certain ‘crimes’, and replacing what most considered ‘reasonable language’ in existing bills.  And it’s either a major anti-Occupy and other forms of protest bill, or it just attempts to allow Feds to charge people for say, hopping the White House fence, rather than leaving those matters to D.C. cops (did they ever?), depending on different points of view, like The Hill’s  ‘move along, little dogie’ coverage of the seeming non-event.

On the front page of opednews,com this morning was a story link to the WSWS story calling it an ‘authoritarian anti-protest law’.  Other coverage is far more inflammatory, like ‘A Trepass on the First Amendment’, or ‘Goodbye First Amendment’ which is posted at the ACLU Sacramento County website, but links to an RT piece here, and seems to be the basis for much of the coverage so far.  Please weigh in if you know much about RT; I don’t.

“Under the act, the government is also given the power to bring charges against Americans engaged in political protest anywhere in the country.

Under current law, White House trespassers are prosecuted under a local ordinance, a Washington, DC legislation that can bring misdemeanor charges for anyone trying to get close to the president without authorization. Under H.R. 347, a federal law will formally be applied to such instances, but will also allow the government to bring charges to protesters, demonstrators and activists at political events and other outings across America.

The new legislation allows prosecutors to charge anyone who enters a building without permission or with the intent to disrupt a government function with a federal offense if Secret Service is on the scene, but the law stretches to include not just the president’s palatial Pennsylvania Avenue home. Under the law, any building or grounds where the president is visiting — even temporarily — is covered, as is any building or grounds “restricted in conjunction with an event designated as a special event of national significance.”

It’s not just the president who would be spared from protesters, either.

Covered under the bill is any person protected by the Secret Service. Although such protection isn’t extended to just everybody, making it a federal offense to even accidently [sic] disrupt an event attended by a person with such status essentially crushes whatever currently remains of the right to assemble and peacefully protest.” (more here)

The duopoly conventions and NATP/G8 Summit have already been designated as ‘of national significance’, apparently.

Lucy Steigerwald writing at reason.com hopes the RT and other coverage is over-the-top, but writes that Will Amash, Deputy Chief of staff for Rep. Justin Amash (R-MI), who voted nay on the bill, says:

“Adams, who is a lawyer by trade, like his boss, explained the changes in updates from the previous statute in layman’s terms. It all comes down the words “willfully” and “knowingly”. As Amash wrote on his facebook, (and Doherty noted):

Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it’s illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it’s illegal to be in that area and has no reason to suspect it’s illegal. (It expands the law by changing “willfully and knowingly” to just “knowingly” with respect to the mental state required to be charged with a crime.)

To elaborate on what seems to be subtle legal stuff, the current law being amended, Section 1752 of title 18, United States Code, would be here. Note that the words are “willfully” and “knowingly” are there. H.R. 347 is here. The word “willfully” is indeed gone. What does that mean exactly? [snip]

She cites  U.S. v. Bursey (an Iraq war protester case from 2004)which pdf won’t open for me, but says that the court found that:

“As the Bryan Court observed… for a defendant to have acted willfully, he must merely have “acted with knowledge that his conduct was unlawful.”…we focus our discussion on whether Bursey “willfully” violated the Statute, because, generally, “[m]ore is required” with respect to conduct performed willfully than conduct performed knowingly… requires “more culpable” mens rea than knowing violation).As a general proposition, the statutory term “knowingly” requires the Government to prove only that the defendant had knowledge of the facts underlying the offense.”

 

Which makes taking away the word ‘willfully’ and leaving ‘knowingly’ a biggish deal, especially the other vague and too inclusive terms about ‘events of national significance’, yes?

So, more caveats: I haven’t found that either Glenn Greenwald or Emptywheel have written about this bill, which causes me some concern as to its potentially huge , but I did find this guest blogger, Gene Howington at Jonathan Turley’s house speaking about ‘Imprecise Language and Risks’ of the bill.  After a brief mention of some of the troubling NDAA language and its potential for sever abuse, he writes:

“The root of the problem with this legislation lies in the omission of the word “willfully” to make the condition simply “knowingly” in conjunction with the phrase “or so that, such conduct, in fact”.  The use of this conditional phrase effectively nullifies the intent component in the absence of “willfully” being explicitly stated.  You may not have willfully or knowingly done anything other than exercise your free speech and free assembly rights, but if you “in fact” “[impede] or [disrupt] the orderly conduct of Government business or official functions”, you can be arrested and charged under this proposed revision of 18 U.S.C. § 1752 whether the impediment or disruption was willful or not.  The reworded law as the bill is currently formulated effectively does away with intent as a requirement in addition to expanding the meaning of the term ‘restricted buildings or grounds’ to mean virtually any place in proximity to or place proper a government function or an “event of national interest” is taking place. This would allow for the arrest of protesters just about anywhere.  Outside political rallies, near the hotels of visiting foreign dignitaries, outside sporting or other public events like the Super Bowl . . .  you get the idea.

Is this an instance of vague/imprecise language creating the potential for civil rights abuses?

Or it this an instance of purposefully vague/imprecise language to allow the government to infringe upon your rights to free speech, assembly and petition?”

The Kerfuffle Factor comes from Florida, as Stiegerwald writes:

“Michael Mahassey, the communications director for the bill’s sponsor, Rep. Thomas J.Rooney (R-Florida), sounding irritated on Wednesday (while he implied that I was not the first person to call and ask about it). Mahassey called the reaction to the bill “a whole lot of kerfuffle over nothing. This doesn’t affect anyone’s right to protest anywhere at any time. Ever.”

Yup.  Got it.  Thanks, dear.  We’ll all sleep better knowing that the Security State knows its Constitutional limits, and we live in The Land of the Free, and the Home of the Duped and Deranged.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

And just for the record, I think this bill is a huge deal.

(cross-posted at kglblogz.com soon)

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