20 May 2012
The Federal Restricted Buildings and Grounds Improvement Act.*
One of the few liberal media sources to cover the bill called it the anti-Occupy bill, but internal Occupy-related media seem to be largely ignoring it. The Tea Party is outraged by it, but nobody else thinks it’s aimed at the Tea Party. The Senate passed it unanimously and Obama signed it, but the few constitutional experts to review it are adamant that it’s unconstitutionally vague. Even the House, over two votes, could only muster three votes against it. And what is the bit in the title about “Grounds Improvement”? Is that some kind of sick joke?
The bill in question carries the official title of The Federal Restricted Buildings and Grounds Improvement Act of 2011. It passed 399 to 3 in the House in 2011, was amended and then passed unanimously by the Senate in 2012, then the amended version passed the House 388 to 3 in 2012. President Obama signed it on March 8, 2012. The “Grounds Improvement” riddle is solved by reading the introduction, or by more careful explication in the blog post from the Partnership for Civil Justice Fund “H.R. 347: Get the Truth on the New ‘Protest Law’”. As the introduction to the bill itself explains, it is an act …To correct and simplify the drafting of section 1752 (relating to restricted buildings or grounds) of title 18, United States Code. So it’s not the grounds being “improved”, it’s the original law, which was enacted in 1971 and then substantially amended in 2006.
What many of the more hysterical postings about the passage of H.R. 347 fail to note is that the dangerously vague and overreaching language they are objecting to was present at least from 2006. But there was one noticeable “improvement” that is a new departure. Despite blog posts to the contrary, the act does NOT make infringements that were previously misdemeanors now felonies and it does NOT add new scope to the powers of either the Secret Service or the Department of Homeland Security. These constitutional failings and likely infringements of First Amendment rights were already present in the 2006 rewrite to the federal code. What the act does empower, potentially, is the easier prosecution of a defendant who has committed one of the proscribed acts.
The most significant change was to remove the words “willfully and” before “knowingly” in the description of the crimes in the 2006 act. What this means is, if the law itself or this change to the law is not struck down as unconstitutional, that a protester, for example, does not need to be proven to have known that their alleged trespass was illegal. As the Partnership for Civil Justice Fund explains, “As amended, a conviction arguably only requires proof that a person ‘knowingly entered’ a certain area. This is an effort to lower the bar for prosecutors who would, arguably, no longer have to prove that a person knew his conduct was unlawful.” Or, as the Senate bill sponsor Sen. Richard Blumenthal (D-CT) said, it will “improve the law enforcement tools available to the Secret Service in its attempts to protect the President, the Vice President, and others on a day-to-day basis by closing loopholes in the current federal law.” Loopholes? Tools? An interesting spin.
This law has not really been tested for constitutionality yet, whether we are talking about the new “improved” version where you don’t even need to know the action was forbidden by the law, or the original law itself. Those commenters who realize that H.R. 347 is an amendment to a law that was already a “bad law” in the words of the Partnership for Civil Justice Fund point to its vagueness and potential for abuse. A self-described Constitutional scholar associated with the Tea Party, KrisAnne Hall, although she does not mention that the language she is concerned about was part of the 2006 law and not newly introduced in H.R.347, does make a very important first amendment point in this article quoted extensively by the Gainesville Tea Party
The protected right of the people peaceably to assemble is something that has fundamental and historical foundations. Our founders established a clear “no trespassing sign” in our first amendment to keep the government away from this fundamental right. “Congress shall make no law abridging…the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Legislation in the Congress seems to be treading on the grounds of this constitutionally restricted territory.
The right to orderly conduct government is NOT a Constitutionally protected right. However we DO have the right to free speech and the right to peaceably assemble. Our Constitution establishes the fundamental principle rights to speech and assembly are held by the people and the government must protect these rights, not limit them.
But again, this language was pre-existing in the U. S. Code. And although several constitutional scholars agree that it is but one of several flaws in the existing law, it needs to be tested before one can assert absolutely that it is against First Amendment rights.
And perhaps it will be very soon. When the 2006 law was written, the country was under a Republican administration. There had been no credit crisis, no austerity push (indeed, Federal spending was at an unprecedented high, mainly due to the war in Iraq) and there was no Tea Party. When the 2011 amendment, H.R. 347, was first proposed in 2011, it may have been directed at the Tea Party. But more likely it was in anticipation of both major parties’ upcoming national conventions, of a flood of Republican presedential contenders under Secret Service protection, and also in remembrance of highly volatile protests at G8, G20, NATO and other world “summit” meetings. It certainly could not have been the “anti-Occupy” bill, because OWS had not happened yet.
But it may be Occupy that tests it, for the next NSSE or “National Special Security Event” (this is one circumstance that can invoke the law, and includes all of the above as well as one recent Super Bowl) is the NATO Summit meeting in May in Chicago. And Occupy movements and affinity groups around the country and the world are even now planning an overwhelming and highly committed protest presence at this event, in most cases quite unaware of the constitutional challenge potentially hanging over their actions.
*This article was originally written for print publication in a small Occupy newsletter but for complex reasons was never published there. I have changed it slightly to embed the links.