Obama (and Congress) vs. civil liberties

A Facebook Friend (who I’ve known longer than I’ve been on Facebook) suggested watching this:

The Fox News segment is about H.R. 347, the Federal Restricted Buildings and Grounds Improvement Act of 2011, which the House of Representatives passed 388–3 and the Senate passed unanimously. Libertarians will be happy to know that two of the three Nays were Republicans, Ron Paul (R–Texas) and Justin Amash (R–Michigan).

Given some people’s attitudes about Fox News, I decided to research this independently by going to sources that would not be considered sympathetic to Fox News, or vice versa.

The American Civil Liberties Union sees H.R. 347 as a bit less than advertised, largely because it’s not new:

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.

These restricted areas include locations where individuals under Secret Service protection are temporarily located, and certain large special events like a presidential inauguration. They can also include large public events like the Super Bowl and the presidential nominating conventions (troublingly, the Department of Homeland Security has significant discretion in designating what qualifies as one of these special events).

The original statute, unchanged by H.R. 347, made certain conduct with respect to these restricted areas a crime, including simple trespass, actions in or near the restricted area that would “disrupt the orderly conduct of Government,” and blocking the entrance or exit to the restricted area. …

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. To be sure, this is of concern to the ACLU. …

Also, while H.R. 347, on its own, is only of incremental importance, it could be misused as part of a larger move by the Secret Service and others to suppress lawful protest by relegating it to particular locations at a public event. These “free speech zones” are frequently used to target certain viewpoints or to keep protesters away from the cameras. Although H.R. 347 doesn’t directly address free speech zones, it is part of the set of laws that make this conduct possible, and should be seen in this context.

Slate.com is more critical:

Simply put, the way the bill will “improve” public grounds is by moving all those unsightly protesters elsewhere. The law purports to update an old law, Section 1752 of Title 18 of the United States Code, that restricted areas around the president, vice president, or any others under the protection of the Secret Service. The original law was enacted in 1971 and amended in 2006. At first blush, the big change here is that while the old law made it a federal offense to “willfully and knowingly” enter a restricted space, now prosecutors need only show that you did it “knowingly”—that you knew the area was restricted, even if you didn’t know it was illegal to enter the space. This has been characterized in some quarters as a small technical change that hardly warrants an arched eyebrow, much less a protest.

But it’s important to understand what has changed since the original law was enacted in 1971, because it shows how much a tiny tweak to the intent requirement in a statute can impact the free speech of everyone.

For one thing, the law makes it easier for the government to criminalize protest. Period. It is a federal offense, punishable by  up to 10 years in prison to protest anywhere the Secret Service might be guarding someone. For another, it’s almost impossible to predict what constitutes disorderly or disruptive conduct or what sorts of conduct authorities deem to “impede or disrupt the orderly conduct of Government business or official functions.”

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 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.

And that brings us to the real problem with the change to the old protest law.  Instead of turning on a designated place, the protest ban turns on what persons and spaces are deemed to warrant Secret Service protection. It’s a perfect circle: The people who believe they are important enough to warrant protest can now shield themselves from protestors.  No wonder the Occupy supporters are worried.  In the spirit of “free speech zones,” this law creates another space in which protesters are free to be nowhere near the people they are protesting. …

Let’s start by recalling that political speech—of the sort you might direct toward Newt Gingrich or Queen Beatrix of the Netherlands, both of whom merit Secret Service protection—is what the First Amendment most jealously protects. Demonstrators can almost never be muzzled based on what it is they want to say. The First Amendment also has a special solicitude for speech in what are called traditional public fora. There is a presumed right of access to streets, sidewalks, and public parks for the purpose of engaging in political discussion and protest. And while the government can always impose reasonable limits on demonstrations to ensure public order, that power comes with a caveat: It must never be used to throttle unpopular opinion or to discriminate against disfavored speakers. …

It is tempting to dismiss the exile of protesters as a reasonable concession to security in what law enforcement would like you to believe is a new age of terrorism. After all, they will say, demonstrators are not being silenced; they are merely being denied access to the forum of their choice and the chance to amplify their own message by presenting it against the backdrop of the message they oppose. But that is precisely why we should be concerned.

Whatever they have come to say, the presence of demonstrators at these events carries a powerful message in and of itself  that cannot be delivered as effectively in any other place. Being permitted to deliver their message in the same forum and at the same time as the speaker they oppose highlights the passion and commitment that animates the protesters. It underscores the existence of dissent, which is precisely what those who would sanitize the space around high officials would have us forget.

How do the libertarians at Reason.com feel? Reason first talked to Michael Mahassey, communications director for U.S. Rep. Thomas J. Rooney (R–Florida):

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.”

H.R. 347, said Mahassey, is simply a DC-centric update of already existing law. Section 1752 of title 18, United States Code, already protects those under Secret Service protection — except in Washington D.C. where these protections fall under local laws against trespassing, etc. Mahassey said that the Secret Service requested the changes to this law because “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.”

Not exactly the abolition of the First Amendment, is it? RT and The New American’s warnings are hopefully an exaggeration.

But there’s reason to worry says Will Adams, the deputy chief of staff for Congressman Amash. Yes, the law updates as Mahssey said. It brings the DC trespassing violations under the federal umbrella and “Amash has no issue with that.” But also does imply something else which inspired Amash to vote “nay.”

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”.

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.

So it’s hard to know the exact implications of this one-word change, especially when some very nasty, excessive crack-downs happen already in cases like G-20 summit protests. But law is precedent and interpretation. So in a world where the National Defense Authorization Actmaybe allows for the indefinite detainment of citizens, but maybe not, but the President says he won’t use the power so trust him, governments don’t need one more inch – not one more word of excuse — to crack down on protest and speech. The cult of the presidency has gone far enough.

I think it is silly to suggest that Democrats and Republicans are the same party. But there is a party that features most members of every legislative body I’ve ever seen — the Incumbent Party. And this could be seen as an example of the Incumbent Party at work.

I have no difficulty at all seeing this pass a Democratic-controlled House and unanimously pass (without a recorded vote) a Republican-controlled Senate and signed into law by a Republican president. All those who criticized the Walker administration for its response to the Recallarama protests du jour would have to admit, if they were being honest, that any Democrat likely to be governor would have reacted the same way. Incumbents, regardless of party, are not pleased with being criticized, and the longer they’re in, the more prickly they are about discouraging words.


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