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WHOFACTCHECK: New Bill a Protest Clampdown?

Is this right or is it hype?

Is the president being asked to pound yet another nail into the coffin of democratic expression? So say alarmist scenarios concerning HR 347 (the Federal Restricted Buildings and Grounds Improvement Act of 2011), now on the president’s desk.

The answer, in short, is…maybe. We certainly do have a reason to be concerned. But not necessarily for the reasons we are being given.

***

First, let’s eat some broccoli. Reading text is not like downing mashed potatoes, but it is good for you.

The bill, according to the official summary:

Amends the federal criminal code to revise the prohibition against entering restricted federal buildings or grounds to impose criminal penalties on anyone who knowingly enters any restricted building or grounds without lawful authority. Defines “restricted buildings or grounds” as a posted, cordoned off, or otherwise restricted area of: (1) the White House or its grounds or the Vice President’s official residence or its grounds, (2) a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting, or (3) a building or grounds so restricted due to a special event of national significance.

A sampling of postings from recent days reflects the disquiet. One website published an article headlined “US Congress passes authoritarian anti-protest law.” Another’s said “H.R 347 could be making the First Amendment illegal.” Still another, a guest blogger on the website of constitutional law professor Jonathan Turley, was headlined “Imprecise Language and the Risks of H.R. 347

The first site one cited above, the World Socialist Website, which clearly has a viewpoint, made some interesting points. But the WSW stokes fears unnecessarily by its framing:

The passage of H.R. 347 has been the subject of a virtual blackout in the media. In light of the nature of the bill, which constitutes a significant attack on the First Amendment, this blackout cannot be innocent. The media silence represents a conscious effort to keep the American population in the dark as to the government’s efforts to eviscerate the Bill of Rights.

The timing of the bill is significant. H.R. 347 was reported to the Senate floor by the Senate Judiciary Committee on November 17, 2011, amidst a massive nationwide crackdown on the Occupy Wall Street protests – and just two days after hundreds of New York City police conducted the infamous military-style raid on the demonstrators’ encampment in Zucotti Park, driving out the protesters and erecting barricades…..

That makes a bunch of assumptions that may or may not be correct—and some clearly are not. For example, the media silence does not necessarily represent “a conscious effort” to keep the American population in the dark.” The media, notwithstanding its predilection for authority, fails to cover the vast majority of legislation, including most of the important bills. Some of this is simply a matter of awareness, resources, style, and even a disinclination to examine legislation that has a technical side, or, as in this case, where the vote is almost unanimous in favor.

In addition, the assertion about “timing” seems to misrepresent the intent. The bill was actually introduced long before the Occupy protests—and so one would have to note that fact– and it’s not clear whether it finally got legs because of the protests.

***

Speaking of intent, it’s important with these things—with all matters of dispute—to study their origins.
WhoWhatWhy called the office of the author of HR 347, Rep. Thomas J. Rooney (R) of Florida. According to his communications director, Michael Mahaffey, the bill originated a year ago when the Secret Service approached members of the Judiciary Committee, on which his boss then served. Rooney, who has a background in the military justice system and has taught constitutional law at West Point, volunteered to sponsor the bill. It was co-sponsored by a fellow Floridian, Democrat Ted Deutch (who, it should be noted, also co-sponsored the highly controversial Stop Online Piracy Act (SOPA.)

HR 347 passed both the Judiciary Committee and the House in the last Congress, when it was still under Democratic control. The current congress passed it almost by acclamation (unanimous in the Senate; in the House, just three members voted against it.)

Mahaffey says that the law needing amending, Section 1752 of title 18, United States Code, allows the government to designate as “restricted” any places the president and vice president travel to. But Section 1752 has no such reference to the White House or the vice president’s residence, the Naval Observatory. Because of this flaw in the law, when someone jumps the White House fence, the Secret Service can only take action under District of Columbia law, which treats such breaches as a misdemeanor. Mahaffey followed up on our conversation with an e-mail that made these further points:

This bill does not affect anyone’s ability to protest in any way whatsoever.

Current law prohibits unlawful entries upon any restricted building or ground where the President, Vice President or other protectee is temporarily visiting. That’s current law, and I don’t know of any complaints about people not being able to protest the President. However, there is no federal law that expressly prohibits unlawful entry to the White House and its grounds or the Vice President’s residence and its grounds. Instead, when people trespass onto White House grounds, secret service relies on DC anti-trespassing laws. Again, that’s already current DC law that you can’t trespass onto White House Grounds, and no one has complained they can’t protest the President outside the White House. This bill simply extends the protections that follow the President and VP when they’re traveling to their homes at the WH and Naval Observatory.

One reason we needed to make this technical fix is that the DC law that secret service relies on does not distinguish between those who have lawful authority to be on White house grounds (like secret service) and those who don’t (like fence-jumpers). So to be absolutely clear, just like the current law allows protests outside restricted areas when the President is traveling, this technical fix will continue to allow people to protest outside the White House. Any claims to the contrary are unequivocally false. This bill only affects those who knowingly and without legal authority trespass onto White House or Naval Observatory grounds. Unless you’re jumping the fence, you don’t have anything to worry about.

Some have falsely claimed that you could be prosecuted for unknowingly entering a restricted space. Actually, this bill makes it more difficult to prosecute a trespassing case than under current law. The bill retains the “knowing” standard and replaces “willful” with the phrase “without lawful authority to do so.” That means that the government has to prove that the person knew they were breaching a restricted building or ground AND knew they were doing so without lawful authority. That’s a tougher case to prove than under current law.

***

It does seem reasonable to make fence-jumping a felony.  After all, once someone scales the fence, the president is at risk. And preventing that is the job of the Secret Service.

My guess is that this may actually have originated as a result of the Salahis, the couple who creepily got into the White House and close to Obama without proper clearance.  (Be sure to read our piece on this and other disturbing security breaches since Obama has been president.)

The bill was requested and introduced in what was still the 111th Congress, while the lame-duck Democrats were still in the majority, and about a year after the Salahis got into the White House without proper authorization.

Obama was rattled by this—and it’s entirely possible that he is behind this tightening up.

We wanted to ask the White House Communications Office, but they had not responded to our inquiry at posting time.

***

The reasonableness of this, and perhaps the urgency, if this is taken at face value, may explain why virtually every member of congress, Republican and Democrat, Conservative and Liberal, supported it. One of the three notable exceptions was the thoughtful and very liberal Keith Ellison of Minnesota. We were curious to hear his rationale—but when we contacted his office, they told us that he was erroneously listed as being opposed. So even he thinks it is on balance, more a good bill than a bad one.

Notwithstanding what is presumably the best of intentions by those voting for it, the bill does seem to be overly broad and overly vague on a number of fronts.  The blogger on Turlington’s site focused on one example. But others are evident. For example, consider some more broccoli:

‘Sec. 1752. Restricted building or grounds
‘(a) Whoever–
‘(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;
‘(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions; ….

The phrase “within such proximity” seems to refer to those who are not in a restricted building or on the grounds, but merely somewhere near. And what would constitute impeding or disrupting?  For example, if there were a ceremony in the Rose Garden, and peaceful demonstrators outside the White House grounds were extremely loud, couldn’t they be said to be “disrupting…in proximity” to a “official function.”? What about a large demonstration flowing into the street, slowing down the passage of vehicles into and out of the White House? Such scenarios should be discussed.

The bottom line is that it does make sense to have tough laws in place to protect the president. But is this the right language? Even to someone who is not a constitutional lawyer, it certainly doesn’t look to be. In this country, we err on the side of caution when it comes to restricting the right to protest.

So, if Obama cares about not just his personal safety—but the safety of democracy itself—he will demand that Congress go back to the drawing board.

Meanwhile, the current climate, in which some Americans automatically support repressive or potentially repressive measures, and others see everything as a deliberate step down the road to authoritarianism, is poisonous. We need to be vigilant, but we also need to be careful not to vilify all of government, and all the people we elect, as deliberately complicit in democracy’s downfall.

Sometimes there’s more to the story. And we need to learn a lot more. Unfortunately, by the time a bill is on the President’s desk, there simply isn’t the time.

 

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GRAPHIC: http://www.prlog.org/11812358-hr347-free-speech-is-now-felony.jpg


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  • http://erichs-blog.blogspot.com/ Erich Kuerschner

    “The bill was requested and introduced in what was still the 111th
    Congress, while the lame-duck Democrats were still in the majority, and
    about a year after the Salahis got into the White House without proper
    authorization.

    Obama was rattled by this—and it’s entirely possible that he is behind this tightening up.”

    Or an alternative explanation was that the “rattling of Obama” was intentional. After all. you wouldn’t want a President to *really* believe that whether going to war was his call. Better he got some sense of his vulnerability before he made a bad decision.
     

  • http://www.facebook.com/stephanie.marie.farrell Stephanie Farrell

    Sign this petition and ask the president to veto the bill 
    http://signon.org/sign/president-obama-dont-4?source=s.em.cr&r_by=839340&mailing_id=2490

  • Nomorewaryouprats

    I see an additional instance of vagueness in the language. What does “or otherwise restricted” mean (if anything) in the summary apart from “within such proximity to” in Sec. 1752′s ‘Restricted building or grounds’?

    Also, as I have seen it reported, “or other person protected by the Secret Service” (summary) applies to Presidential candidates among others. Wow…free speech zones at the Republican Convention in Tampa. I wonder if the protestors will even be within camerashot of the site? Our politics has all the honesty and spontaneity of Jersey Shore. This is just one more step in manufacturing our televised consent.

  • https://plus.google.com/118376752237626707461/about Matt Prather

    “First, let’s eat some broccoli. Reading text is not like downing mashed potatoes, but it is good for you.”

    That’s a pretty unique way of putting things, and I, for one, find it refreshing and humorous. Original.

    . . .

    It’s good to approach things with a healthy dose of skepticism, including the positions of alternative media skeptics. So thanks for doing a little “fact check” on the potential for alarmism here.

    Frankly, from what I’ve seen of “evil laws” that potentially destroy liberty and freedom — they’re already on the books with the “Patriot” Act, and in Executive Orders  – so I’ve already been in full-blown alarm mode.

    I guess what ultimately matters will be the will of the people and the will of the law’s custodians.

    “Will they or won’t they?” — go Nazi, that is. 

    The Constitution is  “just a piece of paper” and so is Federal law and the “Patriot” Act. We make them real or not with our beliefs and deeds.

    . . .

    In any case, I see a horrific struggle brewing in the winds now, between the forces of totalitarianism / dictatorship / autocracy who want to control the world through money, media, military, and technology — and the completely disjointed forces of everyone else.

    “The Peace Movement is divided, while the War Movement is united.”

    My own personal theory is that we all just need to stop giving trust to far-away authorities — they will always misuse us and mistreat us. The people vying to be our far-away authorities in today’s world have all proven themselves such, at least.

  • http://twitter.com/PublicLobbyist Michael Simonson

    I’ve done quite a bit of proofreading in my life. Nobody seems to have noticed that 2 very important provisions of the older version were deleted. The older version said that Hr347 did not supersede state or local law. Being federal and, by default, the new version overrides state and local law. Secondly, the older version stipulated that the federal courts having jurisdiction would handle the case. By omitting his requirement, the feds can take you to Gitmo or any detention center of their choosing for whatever Obama decides is a fair trial.

    Rooney’s staff is being deceitful in his explanations. Removing ‘Willfully’ makes it easier to prosecute NOT harder.

    See thepowerstruggle.blogspot.com for alternative viewpoint.

  • Mamaskye

    I totally appreciate your insightful and fair-minded appraisal of all things political! TruthOut is awesome, but you guys rock the “Free Press” gig all the way. I’ll send more money next round… ;)

  • CQ

    As a peaceful advocate for animals, I’m not surprised. We already have the dissent-hushing Animal Enterprise Terrorism Act, and now Iowa has passed an “ag-gag” bill to squelch undercover videotaping of cruelty to animals: http://www.npr.org/2012/03/10/148363509/ag-gag-law-blows-animal-activists-cover

    I like broccoli with my mashed potatoes (made with almond milk and Earth Balance). 

  • Mark in Boston

    “WHO” FACT CHECK!!!

    I’m glad you took on this subject because IMO everything about this smells fishy and it is not being discussed in the media. I’m a little disappointed, though, in the ambiguity of your conclusions.

    Along with a “who” fact check, might I suggest a “what’ and a “why” fact check as well.

    “the bill originated a year ago when the Secret Service approached members of the Judiciary Committee”

    “My guess is that this may actually have originated as a result of the
    Salahis, the couple who creepily got into the White House and close to
    Obama without proper clearance.”

    Okay, let’s say your “guess” is correct. The SS was wigged because someone slipped into the White House. My understanding of the new law is that what was once a misdemeanor under local law (White House fence jumping) is now a felony. Given that every inch inside the White House fence is under the protection of the SS, exectly how does making it a felony assist the SS in exercising their duty, or conversely, how does it being a misdemeanor impede them? IMHO these are the first questions that should be asked and were not — not even in this analysis.

    And I agree with Michael Simonson: removing “willfully” makes it easier to prosecute, not harder, since proving intent is not necessary under the new law, and therefore, Mahaffey’s interpretation is incorrect and misleading — “willfully” or otherwise.

    My reading of the bill is that it aids prosecutors and not the SS. I have been to events with SS protection and have had to vacate when the SS needed to do a “sweep.” I’ve seen them coming the alleys of my neighborhood in advance of a presidential motorcade. NOTHING gets in the way of the SS when they are doing their job. So Why the new law?

    Anxiously waiting for your “Why” fact check.

  • Lhodges75

    I can verify – I was slapped with a restraining order banning me from Washington DC and every Federal building in the United States – I was in Canada, and stopped by Border Patrol – denied entry into the United States, and I’m a citizen -

    Who took out the restraining order?  My ex husband – a senior brass at the NSA – he arranged the whole thing with the DC police – totally illegal – but NSA was testing the waters – to see if they could make it stick

    I’m suing him in Federal court – we’ll see whether they can restrict access to Federal buildings -

  • Willy Wonk

    Great article, Russ.  Sorry, for the late post.  

    You are absolutely right: the clause “within such proximity to” is overly vague and does provide for the opportunity for abuse, particularly when applied to legitimate protests that happen to be in the proximity (say, somewhere in the District of Columbia) of a restricted area.  I can just hear Scalia (His Holiness) telling us all – lawyers and non-lawyers alike – what that one means and why it doesn’t offend the 1st Amendment, even when so applied.  

    Having worked in law and politics myself, I think you are also right to suggest that this vague language is probably not the product of a deliberate “conspiracy” to strip us of our civil liberties; more likely, it was drafted by nervous, well intentioned lawyers who where thinking “What about a terrorist an inch from the perimeter of the restricted area? We gotta get him covered!”   

    Still, it’s troubling stuff.  What happens with laws containing such open-ended phrases is that they sit around on the books for years until, one fine day, some maniacal prosecutor realizes what he can do with it and then, well, the case goes up to Scalia and the rest.  

  • Lhodges75

    Worked in law and politics since the 80s – worked for White House cabinet in their own law firms – married to a guy in Navy Security during Viet Nam -deployed with hubbie to the Navy’s top secret listening posts – oh yeah, I saw the security…..everytime I went to the base the KGB was camped outside the fence with long range camera lenses taking photos of our so-called top secret aircraft – following the guys when they left base – I got followed myself –

    I was going to protest something at the Capitol, until I talked to the Dir. of the ACLU about permits – you need a permit to go to the bathroom in DC – when a government asks you for a permit to do anything, they’re only looking for a way to nab you -

    Oh yeah, I took my kids to visit the Smithsonian.  We parked the car, and watched the DC police drag some poor helpless soul off a park bench for sitting down with her sign in the 100 heat

    This is a country that pretends to have a Constitution.  We also pretend to have a free press.  I feel terribly free everyday I wake up.   You’re a fool if you believe you’re actually free, and a bigger fool if you protest.  They have more freedom to protest in China.  And yes, I’ve protested before.  I was also in the Watts Riots – now there’s a protest!!!

  • http://www.facebook.com/people/Ian-T-MacLeod/100000013442666 Ian T. MacLeod

      This law needs to be fought
    in every way we can! It’s as unconstitutional and treasonous as it gets,
    people! Not to mention EVIL, especially considering the way it was made
    law. In a country where freedom of speech is one of the most treasured
    rights, this law is a travesty, and a assault on every American
    citizen! It’s bad enough that the MSM won’t say anything against this
    infiltrated, usurped, lying, thieving, murderous government that we have
    zero control over. Now we’re not allow to talk to others and tell them
    what we know or suspect on pain of long imprisonment! The man who wrote this, passed it, anyone who backed it belong in prison!

  • http://www.facebook.com/people/Ian-T-MacLeod/100000013442666 Ian T. MacLeod

    This was what I wrote in the comment space:
    This is one of the most un-American, ANTI-American laws I’ve ever heard of! Freedom of speech, Freedom of assembly, the “unalienable” RIGHTS, supposedly, to speak the truth to those who WORK FOR US in the government “taking care of the the People’s business” have always been our version of the crown jewels! That is why they were enshrined in the Constitution in the first place. This law illegally removes them, and even selectively, “only” removing in places where they might do some good and allow us to be heard by “our own government” is still as wrong as it gets! This is NOT something the country that my entire family, including my mother, joined the military in time of war without ANY of us ever being drafted, should be doing! America has never been afraid of the words and opinions of her own people – until recently. What has changed?? I want MY country back – the one that was worth fighting for! 

    • Pinback_Sherman

      How stupid do you feel now a year after writing this?