What is the truth behind bill HR 347. Are there now no free speech zones?
“HR 347, just signed without fanfare or news coverage by Barack Obama makes it illegal to protest anywhere the Secret Service is present. Who is present everywhere that Barack Obama goes? That’s right, the Secret Service. Ergo, it is illegal to protest Barack Obama. Well, there goes the 1st Amendment.”
Origins: In February 2012, the Federal Restricted Buildings and Grounds Improvement Act was passed in the Senate by unanimous consent and (as HR 347) approved by the House of Representatives by a lopsided vote of 399-3; the bill was then signed into law by President Obama. This bill was an updating of an existing law, originally enacted in 1971, that restricted access to areas around the president, vice president, or any others under the protection of the Secret Service.
HR 347 did not technically make it “illegal to protest anywhere the Secret Service is present,” as a law to that effect had already been in place for over forty years. The primary differences between the previously existing law and the updated version enacted by HR 347 are:
- The old law made it a federal offense to “willfully and knowingly” enter restricted buildings or grounds, now the law only specifies that one must “knowingly” enter such a space to be in violation of the law.
- The updated version specifically defines the phrase “restricted buildings or grounds” to include “the White House or its grounds, or the Vice President’s official residence or its grounds.”
Opinions vary as to the impact of these changes. Addressing the issue of the difference between the old law’s “willfully and knowingly” vs. the new law’s use of just “knowingly,” Russell Smith wrote in the LASIS (Legal As She Is Spoke) blog of New York Law School’s Program in Law and Journalism that the difference is of little legal import:
The difference between “willingly” and “knowingly” was set out in the 1998 Supreme Court decision Bryan v. United States, which held that in order to act “willfully,” a person must know his conduct is unlawful. On the other hand, the mental state “knowingly” requires only that a person is aware of the factual events that led to the crime.
But while this may seem like a significant difference, it isn’t. Not at all.
For example, protesters prosecuted under the old law, with the magic “willfully” present, could not honestly have claimed that they had no idea that trespassing or disorderly conduct was illegal. Such a claim would have been laughed out of court.
The “knowing” element of the new H.R. 347 all by itself requires the government to prove that a person was actually aware he was (1) entering, blocking or being disorderly and (2) in or around a restricted area. This means that those who were unaware that they crossed into a restricted area or accidentally blocked the entrance of a restricted building could not be charged under the law.
Through his communications director, Rep. Thomas Rooney defended H.R. 347 by saying, “right now it’s not a federal violation to jump the fence and run across the White House lawn; this bill makes it a federal violation.” This is the only aspect of the law that was substantively expanded, and so on this score, Rep. Rooney is right because prior to the new law, it was not a federal crime to trespass on the White House lawn if the President or his family was not inside.
Others disagreed with this assessment. Lucy Steigerwald, writing for Reason magazine, quoted the following from Will Adams, a lawyer who current serves as the deputy chief of staff for Congressman Justin Amash:
The bill makes it illegal knowingly to enter or remain in a restricted building or grounds without legal authority to do so. A restricted building or grounds is defined as a “restricted area” where a person protected by the Secret Service “is or will be temporarily visiting.” According to federal law (18 U.S.C. 3056), the Secret Service is authorized to protect “visiting heads of foreign states or foreign governments” and “other distinguished foreign visitors to the United States.”
So, let’s say a G-20 meeting is hosted in the U.S. and the Secret Service decides it wants a larger perimeter surrounding the event where only G-20 members and staff can be. A person could be arrested and found guilty of violating this law with up to 10 years in prison if they’re carrying a weapon, one year in prison if they’re not for merely walking into the restricted area, without even knowing walking into the area is illegal.
Gabe Rottman of the ACLU’s Washington Legislative Office took something of a middle ground, writing of the bill that:
H.R. 347 has been variously described as making the First Amendment illegal or criminalizing the Occupy protests.
The truth is more mundane, but the issues raised are still of major significance for the First Amendment.
It’s important to note contrary to some reports that H.R. 347 doesn’t create any new crimes, or directly apply to the Occupy protests. The bill slightly rewrites a short trespass law, originally passed in 1971 and amended a couple of times since, that covers areas subject to heightened Secret Service security measures.
H.R. 347 did make one noteworthy change, which may make it easier for the Secret Service to overuse or misuse the statute to arrest lawful protesters.
Without getting too much into the weeds, most crimes require the government to prove a certain state of mind. Under the original language of the law, you had to act “willfully and knowingly” when committing the crime. In short, you had to know your conduct was illegal. Under H.R. 347, you will simply need to act “knowingly,” which here would mean that you know you’re in a restricted area, but not necessarily that you’re committing a crime.
Any time the government lowers the intent requirement, it makes it easier for a prosecutor to prove her case, and it gives law enforcement more discretion when enforcing the law.
Dahlia Lithwick and Raymond Vasvari opined in Slate that even under the older version of the law, the increasing designation of “restricted buildings or grounds” to encompass events and functions that have nothing to do with the government creates an unreasonable restriction on the right to engage in free speech where “protected” persons are present:
The types of events and individuals warranting Secret Service protection have grown exponentially since the law was enacted in 1971. Today, any occasion that is officially defined as a National Special Security Event (NSSE) calls for Secret Service protection. NSSE’s can include basketball championships, concerts, and the Winter Olympics, which have nothing whatsoever to do with government business, official functions, or improving public grounds. Every Super Bowl since 9/11 has been declared an NSSE.
When it comes to relegating demonstrators to obscurity, two approaches predominate: keeping protesters outside an expansive, sanitized bubble that surrounds the very event they have come to protest, or allowing them to come closer, but only within the confines of heavily policed “protest pens” that one federal judge likened to temporary internment camps.
The exclusion zones imposed by [the law] have no natural or intuitive spatial boundaries. They can be as large as law enforcement claims is necessary to ensure the security of whoever the Secret Service is protecting. The “free speech zone” is a moving target, not a delineated area.
Russell Smith summarized by maintaining that even the minor changes to existing law implemented by HR 347 were unnecessary, and the law as it now stands “violates protesters’ first amendment right to protest in their preferred public place”:
Proponents of H.R. 347 claim it advances the government’s interest in protecting its property from damage and its officials from intruders. But every state’s laws already criminalize trespass, disorderly conduct and criminal mischief.
For example, jumping the White House’s fence would be a violation of the District of Columbia’s trespass statute, which subjects jumpers to up to six months in jail. Since police can arrest and remove anyone in violation of this state law, the government doesn’t need H.R. 347 in order to protect its property from damage and its officials from intruders.
And, the practical consequence of H.R. 347’s more serious punishment is that it will deter activists from staging protests near important policymakers.
The impact on protest locations is not incidental. The law was purposefully constructed to shield a select group of powerful government officials from provocative protests. A law which restricts speech based on the impact of its message is a fundamental violation of the first amendment.
It is no coincidence that Congress is polishing up the tools in the government’s arsenal for prosecuting protesters now. Later this year, the G-8 summit and the Democratic and Republican national conventions will draw massive protests. Because the President, Vice President, presidential candidates, or foreign heads of state will be in attendance at these events, activists will be at risk for violating federal law when protesting at them.