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The First Amendment Needs a Rape Kit

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The newest attack of vague language is aimed at your 1st Amendment rights of Freedom of Speech, Freedom of Assembly and Freedom to Petition. It is found in the pending legislation of H.R. 347.… As currently worded, it might as well have been called the “Federal We’re Too Important To Be Annoyed By Your Protest Act of 2011.”

Gene Howington

The Federal Restricted Buildings and Grounds Improvement Act of 2011 (PDF) may sound like a landscaping measure, but it is also being called the Trespass Bill, the Anti-Occupy Bill, and the First Amendment Rights Eradication Act. Under this bill, it is a felony to protest at or in the vicinity of a venue or event that is attended by anyone who has Secret Service protection. H.R. 347 passed the House on February 27th by a vote of 388–3. The Senate version (S. 1794) passed unanimously. With President Obama’s signature, the Act became law on March 8.

The bill has caused a furor among advocates of civil liberties. Justin Amash, one of the three “no” votes in the House, dubbed the bill the “First Amendment Rights Eradication Act.” Calling it “this administration’s latest assault on our civil liberties,” he explains on his Facebook page that “criminalizing legitimate First Amendment activity — even if that activity is annoying to those government officials — violates our rights.”

The left-leaning Daily Kos states, “Protesting will be a felony — where is the outrage?”

Meanwhile, the bill is being ignored by the mainstream media as uncontroversial. Supporters of the act dismiss its critics as hysterical or ill-informed. Michael Mahassey, the communications director for Rep. Thomas J. Rooney, who sponsored H.R. 347, called the backlash, “a whole lot of kerfuffle over nothing. This doesn’t affect anyone’s right to protest anywhere at any time. Ever.”

Who is correct? And why is there such a deep schism on H.R. 347?

A bill by any other name would smell …

The American Civil Liberties Union warns against H.R. 347. Nevertheless, the ACLU observes, “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.”

Section 1752 of title 18 in the United States Code is entitled “Restricted Building or Grounds.” This 1971 bill was intended to prevent assassination, kidnapping, or other attempts to harm the political elite, especially the president. The section of title 18 that immediately precedes it, section 1751, is entitled “Presidential and Presidential Staff Assassination, Kidnapping, and Assault; Penalties.” Thus, section 1752 restricts people from entering or blocking access to or from public areas that have been cordoned off by the Secret Service for the protection of a person (or for a “special event of national significance,” which could range from the Olympics to a political convention). The penalty for violating section 1752 includes a possible one-year jail term; if a “dangerous weapon” is involved, then the jail term rises to a possible ten years.

In recent years, the 1971 bill has been interpreted beyond its intent in order to crack down on peaceful protesters. Moreover, as the Transportation Security Administration (TSA) has amply demonstrated, the definition of a “dangerous weapon” has been expanded at the discretion of law enforcement to include such items as nail clippers.

Thus, the controversy over the current revision, H.R. 347, revolves around two issues. First, is H.R. 347 part of a trend toward vagueness in legislative wording, which can be later exploited and expanded by authorities in order to violate civil liberties? Second, how legally “slight” is the change of wording in this revision?

Consider the first question. Gene Howington, a guest blogger at Jonathan Turley’s legal-analysis site, writes,

it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing “wiggle room” for Federal authorities to potentially abuse civil and human rights under the color of authority. This is a dangerous practice.

Howington refers to a recent example of legislative vagueness — the National Defense Authorization Act (NDAA), which gives Obama the power to indefinitely detain citizens without trial if they are accused of terrorism. Some politicians, notably Senator Carl Levin, argued that the NDAA did not allow such arrests and, so, soothed his worried compatriots while dismissing the bill’s critics. Nevertheless, even Obama acknowledged his new power after the bill passed, saying, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”

No wonder legal scholars now scrutinize with a skeptical eye every word that appears in potentially menacing legislation.

As to the second question, to determine how “slight” the revisions of H.R. 347 truly are, it is necessary to review them. One change has or could have deep significance. The original text reads,

(a) It shall be unlawful for any person or group of persons—

(1) willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.

***

Four additional paragraphs, (2) through (5), begin with the words “willfully” and “knowingly.”

The revised text of paragraph (a)(1) in H.R. 347 reads,

(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so.

The four additional clauses in the original are compressed to three, each of which now begins with the word “knowingly” only.

Why is deleting the word “willfully” so significant? Because it removes the need for a prosecutor to prove that a protester had the intent to violate the statute, for example, through blocking an egress. All that needs to be proven is that the protester knew he was accessing a restricted area. His intent may have been nothing more than to exercise freedom of speech; blocking the exit may have been inadvertent. But under H.R. 347, his mens rea — that is, that aspect of his state of mind — becomes legally insignificant.

In Latin, “mens rea” means “guilty mind” or guilty intention. Within Western law, an act has traditionally required a guilty mind for that act to become criminal behavior. That is why defendants who are found to be mentally incompetent are not placed on trial; they are not deemed capable of mens rea. The Latin legal phrase, actus non facit reum nisi mens sit rea — “the act does not make a person guilty unless the mind is also guilty” — is often invoked in such cases.

Writing in the periodical In These Times, Daniel Hertz encapsulates the impact of removing “willfully” from the statute, “In other words, Congress removed a hurdle in enforcing the law without actually adding any new restrictions to the First Amendment.”

They simply changed the rules of enforcement to remove what is often the most difficult element of the crime to prove: namely, intent. Indeed, since both the original text and H.R. 347 allow the arrest of someone who is merely in “proximity” to a restricted area, proving intent could be close to impossible. How could you prove that person was walking near a politician’s hotel with the intent of causing harm or blocking the egress?

As Gene Howington observes, “in addition” to lowering the threshold for mens rea***, H.R. 347 defines

the term “restricted buildings or grounds” to mean virtually any place in proximity to or place proper [where] 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.

H.R. 347 may well make the arrest and conviction of peaceful protesters much easier.

Conclusion

It is criminally naive to believe that the police and courts will not eventually use the expanded latitude granted by H.R. 347. The Occupy movement frightened and angered the authorities it yanked control away from. For years, “free speech zones,” in which protesters speak from behind barred walls, as though in cages, contained dissenters and kept them far from government officials. They were allowed to protest only where the elite and the mainstream media would not hear them.

Occupy changed that. And the authorities have struggled to find ways to contain dissent ever since; they never want to lose control again. And, especially in this election season, politicians are eager to avoid a repeat of the public outrage that surrounded the 1968 Democratic convention, when police were filmed brutally beating peaceful demonstrators in the street.

The elites are losing patience with civil rights. This January, Chicago Mayor Rahm Emanuel pushed through two anti-protest ordinances that were widely termed “sit down and shut up” measures. The online periodical and voice of Occupy, the Dissenter, describes two of several repressive new requirements.

  • Ahead of demonstrations, “organizers would be required to provide the City with a list of all signs, banners, sound equipment or ‘attention-getting devices’ that require more than one person to carry them,” creating “a license for the city to ‘ding’ organizers with absurd fines.”
  • All downtown protest marches would be required to get $1 million insurance coverage to “indemnify the city against any additional or uncovered third party claims against the city arising out of or caused by the parade.” They would have to “agree to reimburse the city for any damage to the public way or city property arising out of or caused by the parade.”

Clearly, Emanuel is determined that the upcoming NATO/G8 meetings in his city will go smoothly. Emanuel and his ilk would not hesitate to use the free hand provided by H.R. 347 to prosecute “offenders.” And god help them if the protesters are found to be in possession of a pair of nail clippers, small scissors, or any other item that could be construed as a “dangerous weapon.” The penalty could then rise to ten years imprisonment for young people still idealistic enough to believe they have free speech, freedom of assembly, and the right to petition officials with their grievances.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).