H.R. 347: The Strange History of the Bill with the Confusingly Euphemistic Title

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.

Minneapolis in retrospect

I arrived back in the UK on the 6th of September, very jet-lagged, and then promptly fell ill. Apologies for the big delay in updating my blog, but then most of my activity, as I have mentioned before, is documented on Facebook. But the archive-index is a lot better here.

I was not successful in finding a job in the Twin Cities, but then that would have been almost miraculous, so I wasn't really expecting to. I was not as successful as I would have liked in laying the groundwork for finding a job, which was disappointing, but largely due to two facts - 1) I did open a credit union account and (I think) buy a condo, but it took a lot more time and energy than I was expecting, and 2) the social scene also took up more time than I was planning for. One of the big surprises of the trip was that my old comrades in the DSA and some new friends who have joined while I was away were so incredibly welcoming and positive about my imminent return to their company. KB, now holding my old post of "only permanent female member" became an instant friend and we discovered loads of common interests, and the old stalwarts really touched me with their insistence that they had missed me terribly and were thrilled to have me back.

Other social events included meeting up with old friends Janet and her daughter Michael, and seeing Michael's three children who I had known only as online photos, seeing Krista and Ben's "new" baby Oskar, along with of course Krista and Ben, and coffee with Loren, with catching up and a little discussion about my possible career choices. I found to my sorrow and distress that Marie, whom I love very much, is suffering a very severe form of cancer, and was able to spend a few hours with her, and also with her son Doug, an ex-bf now married with adult son. My dear friend Lou, whose world is a chaotic whirl completely outwith her control, nevertheless ferried me around, introduced me to Savers, accompanied Dianne and me on a few condo visits and lent me a smartphone for the duration, all of which made my trip a lot easier. I visited Walker Church and caught up with friends too numerous to mention. And finally I must give thanks and more thanks to both Steve S. and KC B., who picked me up and dropped me off respectively at the airport and housed me in their homes for eight and seven days respectively.

No hotel reviews this trip, but I will do some foodie reviews and others on Qype, Yelp, Trip Advisor and Deborama's Kitchen. I also read a really good book or two, which I want to review on Deborama's Book Reviews and Store.

"Thank you, white folks"

Jack White of The Root says, "Thanks" to white America for voting for Obama in such large numbers and even adds, quite graciously, "we couldn't have done it without you."

Change has come

REUTERS/Jim Bourg

Here is an awe-inspiring photo-stream of pictures from last night. Amongst the show of 31 photos, it shows a vigil at Martin Luther King's grave in Atlanta, a site visited by my son and his girlfriend last night as part of their victory march through their (and my old) hometown.
Here is a full text of Obama's victory speech.
For the geeks like me, an election map from the BBC. The UK news media is if anything even more wonky about the US election than the US media. It's touching. The BBC and MSNBC maps are all Adobe Flash so I can't paste them into my blog.
And let's not forget all the other races! Minnesota is on my mind today. According to Live Blog of the election at the Minnesota Daily (U of M student newspaper) the Senate race between Al Franken and Norm Coleman is still too close to call.

Jim Hightower's tribute to librarians

I always knew it would come out this way. American integrity, the ideal of democracy and Western Civilization As We Know It are being saved by . . . wait for it . . . librarians! (From the website of Jim Hightower.)

Challenging monarchy

American readers, and some British readers, may find this hard to believe, but it is a crime punishable by life imprisonment to advocate in print the abolition of the British monarchy, even by peaceful democratic means. The Guardian newspaper is attempting to challenge that law, but without actually risking anyone going to prison, by asking for a court declaration that the law is incompatible with the EU guarantee of the right of free speech. The court refused to hear the case, claiming that "a ruling in favour of the Guardian would open the civil courts to being asked to give advice on whether or not an action would be a criminal offence". What rubbish! We can't allow you to have basic human rights, or everyone would want them. And what is worse, people in this country have nothing better to do than waste the courts' time coming up with frivolous questions, at the costs of thousands of pounds. (Lawyers may find this hard to believe, but most people dread going to court and will in consequence put up with all kinds of crap before they go see a lawyer to try to find relief.)


The chronology is as follows: 1) Guardian asked Lord Goldsmith, the Attorney-General, for the court declaration, 2) Goldsmith refused to rule on the question, 3) three appeals court judges overturned his refusal to rule and sent it back to him, and 4) Goldsmith is now appealing that ruling at the house of Lords, the final appeal. OK, the way I look at it is this: people in these circles are very motivated by a desire for the rewards that are found only in a system with a monarch at the top and a vast pecking order of nobles, knighthoods, QCs and other titles. How is it going to look on their CVs if they were instrumental in throwing open the door to a peaceful challenge to the monarchy itself, upon which the whole house of cards rests? Or worse still, what if someone is steadily advancing his or her career toward the expected knighthood, and then the monarchy is actually abolished just as they come within sight of their goal? And somehow, I don't expect the House of Lords to be the most sympathetic venue to hear this appeal. But then again, maybe they will surprise me. After all, there are a lot of Labour-appointed Life Peers in there now, and they have already got their rewards.

Electoral abuses in the UK

Here is an interesting article (a bit shocking, really) about the abuses of postal voting in UK local elections.


I mentioned here a while back that I am reconsidering my decision not to apply for British citizenship. I had a look at the forms, thoughtfully provided by my darling hubby (thank you, darling hubby!) and noticed that I will have to swear an oath of loyalty to the Queen. I am not thrilled by this idea. When I mentioned it to DH, he suggested that I protest on the basis that Sinn Fein MPs were exempted from having to do the same thing. (Admittedly, their reasons were more, shall we say personal? than mine; mine are almost pure technicality.) I wonder if Quakerism is a valid exemption reason? My aversion to swearing an oath to a human being is more in the line of the Quaker aversion to all oaths generally. When I was quite young, I worked for the state of Georgia briefly (for the University system, in between bouts of being a student) and had to swear a loyalty oath then (to the state of Georgia and the US and their constitutions, I believe it was). I thought it was very archaic, very offensive, very Georgia. Some 25 years later, my son also dropped out of college for a couple of years and worked for the University, and I believe they were still making employees swear the oath.