Can We Talk Here?

January 2, 2014

By:  Rob Jones

Due to today’s subject matter, I’ve decided to begin referring to my humble abode as “The Freedom Bunker”. As many of you are quite aware, I tend to talk about the United States Constitution often. When I do write about the Constitution, I try to keep my head and be somewhat objective. Today, I’m afraid I’m a bit angry. I was reading through several emails that I get on a daily basis, and came across one, from “”, on H.R. 347. It said, “Obama Secretly Signs No Free Speech Bill”. The headline certainly grabbed my conservative attention. The arguments are that this bill is going to violate our Constitutional Rights, particularly the First Amendment. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. I believe that H.R. 347 is in direct violation of the First Amendment, by abridging our freedom of speech, the right of the people to peaceably assemble, and to petition the Government for a redress of grievances. H.R. 347 may also violate freedom of the press, but we’re not getting into that today.

Much of what has been written about H.R. 347 is concerned only about our freedom of speech. Many of the  articles and email blasts claim that the law at issue, H.R. 347,  “Federal Restricted Buildings and Grounds Improvement Act of 2011,” was  written in response to, and targets, the Occupy Movement and is a new  full scale assault on dissent in general; our ability to protest. There have been alerts, articles and email campaigns urging people to take action asserting that the new bill “criminalizes protest,” is “severely curtailing First Amendment liberties,” “makes protest illegal,” is “outlawing the Occupy Movement,” and makes “free speech a felony.” There is even one campaign titled, “Say Goodbye to Your First Amendment Rights.” Sounds alarming.

The Partnership for Civil Justice Fund, has apparently received many calls and inquiries regarding the central question: how does this law affect protestor rights? The PCJF Had this to say:

“We think these facts will help:

Fact:  H.R. 347 does not represent a new law regulating free speech rights.

Most of the  language of H.R. 347 has been on the books since 2006. H.R. 347 is an  amendment to an existing law, 18 USC § 1752 “restricted buildings and  grounds,” that has existed in various forms since 1971. The most  significant amendments to the law occurred in 2006. The law is a  bad law — but it has been a bad law for years. Much of the language  that people are talking about this week already exists and has existed  for years. The language about “an event designated as a special event of national significance”? Already there.  The language about “engaging in disorderly or disruptive conduct in, or within such proximity to” a  restricted area? Already there.  The language about “conspiracy”? Already there.

Fact: The purpose of the existing law, and why it’s bad.

The law as substantially amended in 2006 is very problematic and people should be rightfully concerned. What the law does (but this is not new)  is it creates what is in essence a roving or movable zone of federal  law enforcement jurisdiction around any person who is under Secret  Service protection or in conjunction with a National Special Security  Event (NSSE), as distinguished from a permanently fixed location. This  allows for federal prosecution of persons who commit enumerated  violations of the law within that zone  and some of those violations  read like classic protest activities. Among other  things, the law allows the Secret Service to designate what would  normally be public space as a restricted area and for there to be  federal prosecution of anyone who “enters or remains” in a restricted  area where a person under Secret Service protection will be visiting or  which is restricted in conjunction with an NSSE; or who engages in  “disorderly or disruptive conduct” with the intent and effect of  “imped[ing] or disrupt[ing] the orderly conduct of Government business  or official functions;” or who blocks entrance to or exit from a  restricted area. Certain major  events are designated as NSSEs, and there are at least three on the  horizon this year. They include DNC and RNC major party conventions this summer and the NATO meeting in Chicago in May. Other events that are so designated have included IMF/World Bank meetings, G-8 and G-20  meetings, the Inaugurations, and even the Super Bowl.

Fact: What is new about the H.R. 347 amendments?

1. The  existing law required that for a person to be prosecuted under it, they  would have had to carry out those described acts both “willfully” and  “knowingly.” The requirement of “willfulness” generally means that a  conviction requires proof that the person knew his conduct was unlawful.  H.R. 347 strikes the “willfully” requirement.  The new amendments appear to intend for a person to be convicted only  by “knowingly” taking the actions described even if the person does not  know that the actions are unlawful. 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.

2. The other major change is the inclusion of the White House and grounds and the Vice President’s residence and grounds as fixed zones of  designation. You might wonder why this is even necessary. Of course,  entering into the White House and its fenced-in grounds is already a  federal violation. We think this particular change is to target  demonstration activity, specifically that which occurs on the White  House sidewalk just outside the perimeter fence (as detailed in 36  C.F.R. §7.96 it is lawful to protest on the White House sidewalk, which  is under National Park Service jurisdiction). We think that the  Government wishes to make it easier to prosecute protestors who step up  off of the White House sidewalk and stand on the concrete ledge  supporting the fence, something which tourists can be seen doing all the time. We are also concerned that the Secret Service seeks to be able to expand its jurisdiction and authority to create pop-up cordoned off  restriction zones in front of  the White House extending to areas where  demonstrators lawfully assemble. The PCJF will be closely monitoring the use of the new amendments and the  existing law and is prepared to take legal action where merited.

Fact: There are no new penalties under this law.

Contrary to  some of what has been written in the past week, there are no new  penalties in the law. The law has also already been used in the past to  prosecute demonstrators. We do think  that it is very likely that the Government is looking at the upcoming  NSSE events which are sure to draw demonstrations and determining what  is in their arsenal to arrest and prosecute persons engaged in protests. They are keenly aware of the growing social justice movement — more  than 6,700 peaceful protestors have been arrested in a sustained and coordinated  attack against the Occupy movement since September 2011. This includes  the 700 people falsely arrested on the Brooklyn Bridge on whose behalf  the PCJF has filed a class action lawsuit seeking to vindicate their constitutional rights.

Fact: What Should A Person Do Who Is Concerned About Free Speech Rights?

We believe in  firmly defending fundamental First Amendment rights in the courts and in the streets. Challenge this law’s effect on protest, yes.  But it is  critical to have accurate information in hand to wage that fight and not to assert the death of free speech rights when we are not at that moment. As with any  law, we are cognizant of any adverse impact on free speech and protest  and dissent. While this law, including in its already existing form, is  adverse, and serious, it is essential that those of us challenging  abridgments of free speech or restrictions on dissent do so from a basis that is factual and accurate. It is equally  important not to spread fear and inaccurate information that has the  effect of chilling participation in collective action and  demonstrations”.

One incident that I am aware of concerned a 71 year old Veteran, who turned his back towards Hillary Clinton, who was giving a speech at Washington University. The Veteran, Ray McGovern, was subsequently grabbed and removed from the audience. The part that really stands out to me, was the fact that Secretary Clinton’s speech was condemning governments that arrest protestors and do not allow free expression!! To make matters worse, Madam Secretary didn’t even bother to pause her speech, let alone say anything. Mr. McGovern, who was photographed with bruises, lacerations, and contusions, shouted, “So this is America?”, while being drug out the door. Attorney Mara Verheyden, of the PCJF is representing Mr. McGovern and said, “It is the ultimate definition of lip service that Secretary of State Clinton would be trumpeting the U.S. Government’s supposed concerns for free speech rights and this man would be simultaneously brutalized and arrested for engaging in a peaceful act of dissent at her speech.” The charges, against Mr. McGovern, were eventually dropped, but this begs my question, “Are our First Amendment rights safe?” I firmly believe that President Obama will use this law, as a means to cease any protest of his vast power grab. I am gravely concerned about how this law may be interpreted and used, maybe even abused, by our elected officials. God Bless You! God Bless West Virginia! God Bless America!



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