Chipping Away At The First Amendment: New 'Trespassing' Bill Could Be Used To Criminalize Legitimate Protests

from the chip-chip-chip dept

Don’t you just love Congress, where almost no bills actually are what they say on the tin? There’s some buzz building online about the “Federal Restricted Buildings and Grounds Improvement Act of 2011” (or HR 347), which has been positioned as a simple updating of trespassing laws concerning federal grounds. However, as some are pointing out, hidden in there is quite the Easter egg that effectively outlaws protests near people who are “authorized” to be protected by the Secret Service (mainly the President and Vice President, but it could include a lot more as well). Only three Representatives voted against it, including Rep. Justin Amash who explained his concerns via Facebook:

Current law makes it illegal to enter or remain in an area where certain government officials (more particularly, those with Secret Service protection) will be visiting temporarily if and only if the person knows it’s illegal to enter the restricted area but does so anyway. The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it’s illegal to be in that area and has no reason to suspect it’s illegal.

Some government officials may need extraordinary protection to ensure their safety. But criminalizing legitimate First Amendment activity — even if that activity is annoying to those government officials — violates our rights. I voted “no.” It passed 388-3.

The specifics of the law pretty clearly seem to make it a crime to do a standard form of protest, such as anything that “impedes or disrupts the orderly conduct of Government business or official functions” or just if someone “engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds….” As Amash notes, there can be times when it makes sense to protect certain individuals, but “disorderly or disruptive” conduct is a pretty broad brush… and it’s one very frequently abused by law enforcement officials.

You know all those stories we’ve had about people being arrested for filming police? Quite often those people are charged with disorderly conduct — which often seems to boil down to “that person did something law enforcement doesn’t like.” To then take that and say that anything that constitutes disorderly conduct on the grounds of a building where someone who is protected by the Secret Service is a crime, it appears to be wide open to abuse, and a pretty clear restriction on the free speech rights of anyone wishing to engage in normal and healthy protest of our political process.

On top of that, the punishment can be pretty severe. You can get up to a year in jail for being found guilty of these things, and that jumps up to 10 years if you are carrying a “deadly or dangerous weapon.”

As Amash notes, there are legitimate safety concerns to be aware of, and there are issues with doing something that significantly impedes government regulations. But it’s really not difficult to see how this bill could very, very easily be stretched to be used against those doing standard protesting against significant political figures.

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Comments on “Chipping Away At The First Amendment: New 'Trespassing' Bill Could Be Used To Criminalize Legitimate Protests”

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87 Comments
Josh in CharlotteNC (profile) says:

Yikes

The Democratic National Convention is being held in Charlotte this year. If I’m in the vicinity of a building where the President or someone with a Secret Service detail is staying, and simply assert rights the Constitution guarantees me, I’m at risk of a year or ten in prison.

If I disappear after the first week of September, someone call the ACLU for me, please.

Ninja (profile) says:

Soon the jail population in the US will be enter the top 5 country populations in the world. Oh wait, those prisons are still in the US… /sarc

As I said on twitter, the US needs to stop proposing new bills, revisit old laws and update them with their Constitution as their “Bible”. Or simply kill the bad laws.

This should avoid quite a few bad bills and fix another bigger amount of absurds. Don’t hold your breath though, this ain’t happening.

Anonymous Coward says:

“pretty clear restriction on the free speech rights of anyone wishing to engage in normal and healthy protest of our political process. “

See…here’s the thing. If you make protesting illegal, people are still going to do it, they’re just not going to be nearly as nice about it. I mean if you can already put them away for 10 years, what’s it matter to the less stable ones if it’s 10 years for protesting or 10 years for slinging molotov cocktails at the cops? There’s a tipping point in what you can do about protests, and I’m not saying this is it, but it’s certainly taking a step towards it.

kenichi tanaka says:

The Appeals Courts and the U.S. Supreme Court, if they get their hands on this, will undoubtedly strike this law down as being a violation of the First Amendment and a violation of the Constitutional rights of American citizens.

Even if this bill passes into law, I doubt that Obama would sign it and if he does sign it, I doubt it will survive a court challenge.

Anonymous Coward says:

As protesters get more aggressive, and use more “in your face” techniques to try to both get the attention of the politicians and the media, the more likely it is that new rules are written to try to balance things back out.

Is this one over the line? Perhaps – but then again, making it unsafe for a politician to walk the streets or appear in public is also over the line, and something that needs to be addressed.

Not an Electronic Rodent says:

Re:

How effective would protests just outside the perimeter be? Do we really need to be adjacent to a politician to protest?

I guess that would depend on the definition of “in the area of”. Is the language specific as to distance? Otherwise “in the area of” could include, for example, line of sight. After all if it’s about “protection” a mile away but still in sight is “in the area of” for a sniper, right?

Thinking Coward says:

"Deadly Or Dangerous Weapon"

Let’s see. Pens can be used to stab, belts, shoelaces make improvised garrotes. Given a sufficiently stupid or ambitious prosecutor, that’s ten years JUST for standing NEAR His Holiness the President.

And to be honest, how do I STOP carrying around my mind, the most deadly, dangerous weapon of all?

:Lobo Santo (profile) says:

Unsafe politicos

If the politician is such a fuck-up that he needs Secret Service protection and to be shielded from the general public should such a person even be in government in any function at all?

Let’s remember: the reason we have the right the bare arms is to KEEP THE POLITICIANS SCARED OF US so they’ll think twice before screwing the public.

Anonymous Coward says:

"Deadly Or Dangerous Weapon"

I refer you to the teachings of the venerable George Carlin, may he rest in peace.

“Shit, there?s a lot of things you could use to kill a guy with; you could probably beat a guy to death with the Sunday New York Times couldn?t you? Or suppose you just have really big hands. Couldn?t you strangle a flight attendant? Shit, you could probably strangle two of them; one with each hand… you know, if you are lucky enough to catch them in that little kitchen area… before they give out the fucking peanuts you know? But you could get the job done… if you really cared enough.”

He was speaking of airport security, but the basic concept is the same.

Mdissident (profile) says:

NSA spying and the Momron Connection.

The over extension of NSA is a little worrisome to me. As a former Mormon [LDS]I am aware of the need for those who think they have a Devine right to rule to build dossiers on anyone they might want to target. Persons who are aware of the fact that they seek that empire.

Persons like Senator McCain have been aiding and abetting the church to build those files. The fact that NSA is building a 1.3 million sq. ft. storage facility just 26 miles south of Salt Lake City to make files available to the Mormon Church as an augmentation of the files they have been building since the early 1970’s is extremely worrisome.

Anyone interested can look at the full website:
http://www.americans-united-against-fascist-and-theocratic-government.org

McCain pushing for the legislation proves to me he is in bed with that conspiracy.

Overcast (profile) says:

They are making so many laws, it just results in each one being harder to actually enforce.

But a large – if not the largest problem – with the whole situation is that many politicians, ‘law’ enforcement agencies, and corporations refuse to follow the rule of law themselves.

It will only be time before this really sinks into the people – and they ask, “If they don’t have to follow the rule of law, why do I?”

A Tyranny can only push so far; at a point life becomes almost meaningless once there are enough chains on people; then a revolt is well worth a try – and as history shows – often successful.

Overcast (profile) says:

Especially since the language “Congress shall make no law” in the first amendment clearly gives the right to protest preference over this one.

Yes, but as we can see on the ‘religion’ portion of that – government just outright ignores the rule of law itself.

You can argue about church/state separation all day – but the law doesn’t state that in the literal wording – it simply states that congress shall make no law.

Problem is – politicians seem to not quite understand English well enough to know what “NO” means.

Another AC says:

Re:

Your point makes no sense. We have laws that deal with the problem TODAY. Just because people escalate from protesting to something else that’s illegal, doesn’t mean we need new laws, WE ALREADY HAVE THAT COVERED TOO!

You can’t seriously think that eroding your rights for a new law that covers things we already have laws for can ever possibly be justified, do you?

Baldaur Regis (profile) says:

A political smell test

Empirically speaking, if a bill seems proactive – i.e., dealing with a current/future issue, chances are it was written by a lobbyist with a specific agenda.

If a bill seems reactive/puzzling, chances are it was written by a politician, and that the bill was likely written in response to something that happened 2-4 years prior.

In reading about this particular bill, what comes to mind are the photographs taken around 4? years ago showing openly armed men standing around a venue where the president was speaking. Police couldn’t touch them, as the weapons were openly displayed – current laws only make concealed weapons illegal. I’ve no doubt they made authorities nervous.

Chuck Norris' Enemy (deceased) (profile) says:

NSA spying and the Momron Connection.

Wow! Now where is my tinfoil hat! I guess the Mormons want all that info so that they can send targeted ads? The missionaries will know exactly what to say to you to convert? I know they keep records of dead people…you know…for genealogy purposes but now it all makes sense!

(Thanks for the relevant comment by the way)

Some Dude says:

more information

This law has been on the books prohibiting the same activities since 2006 http://www.law.cornell.edu/uscode/text/18/1752 and it has existed in some form since 1971 http://1.usa.gov/y4mIac

As far as First Amendment violations, this would probably not be fully overturned as prohibiting speech or the right to assemble because protecting the President is a compelling state interest. However, a conviction based on peaceful protest would most likely be overturned on First Amendment grounds as applied, because, ostensibly, the law’s purpose is to protect the President and the workings of the Government from interruption, not to stop peaceful assembly.

Chosen Reject (profile) says:

Re:

No, the real problem is that he’s asking the same people who are proposing and passing such ridiculous laws to review older laws and remove abuses. Let’s not forget that this bill was “positioned as a simple updating of trespassing laws concerning federal grounds”. If these clowns were to go and review older laws, we have no reason to expect anything different than what they are doing here.

Anonymous Coward says:

Just to make things easier for my Government I went ahead and set up all the necessary surveillance items in advance of the federal security mandate that will be implemented soon.
I now have wireless cameras in every room of my house at every angle,in and out, except for the bathroom…I can just tweet those details.I joined facebook and posted all my embarrassing photos and anti government rants and turned off all privacy controls.
I turned off my WiFI password and turned on onstar and had a new custom license plate made with my SS# on it.
Google has taken care of reading my emails for me and I now allow all tracking on my browser and threw away all my foil hats.

I ordered a new set of ball and chains with the new high tech look in a dark red color.(always want to be stylish while being interrogated)

Anyone know where I can get a good deal on really nice looking manacles?
Have I missed anything?

letherial (profile) says:

Unsafe politicos

The right to bear arms stemmed out of needing a militia…see back in the day, they didn’t have a formal army so it was the populace that needed to be armed. They could protect themselves from Indians, red coats, and any would be criminal.

It was not to ‘scare the politicians’

also, there is no amount of guns that you could possibly have to take on the USA military. I dont see how you could scare a politician with the USA military behind them.

Anonymous Coward says:

Unsafe politicos

Because the way I figure it guns are the great equalizer. Their purpose in this sense is to make it so everyone sleeps equally well (or equally poorly) at night. The right to bear arms has become the way of keeping people honest through mutual distrust and fear of death.

Guns make it so it doesn’t matter how strong, fast, rich, or powerful you are. With the right to bear arms all it takes is one nutjob or one disenfranchised person you stepped on to get to the top (pass your law, become a politician, get out of jail, whatever) that has $500 and a complete disregard for what happens to them to end you. Rich or poor, you’re held accountable for pissing people off this way. Is it perfect? Nope. Not by a long shot. But owning that gun is an American right, and means that everyone sleeps equally poorly.

Anonymous Coward says:

Re:

I am sorry, that is just not true.

A entitlement world that we live in these days (think “I am entitled to pirate this movie because the price is too high”) also has many other faces. There is also a mentality that exists (including here on Techdirt) that the minority can somehow dictate to the majority. When they cannot achieve it by democratic means (ballot box), they move on to more extreme measures.

“Getting in the face” of a politician has sadly become a more and more common thing. Confrontational politics, getting physically up close to someone and shouting your dislike of their policies is the new trend, and one that is very dangerous. It doesn’t take much for it to go from protesting to shooting, especially in the heavily armed US.

It’s not about “walking the streets” as much as planned events that are attacked, district offices taken siege, and people feeling that they can be entirely disruptive to get their message across, no matter how much that makes it unsafe for everyone else.

Torg (profile) says:

Re:

I’d be more than happy to go to a ballot box and vote against this bill, but it’s not on any ballots. What democratic means would you suggest then, or am I only entitled to speak of things that I’ve been allowed to vote on?

As has already been pointed out elsewhere on this page, there are already laws in place that can be used against people that are too disruptive. No one here is complaining that they won’t be able to toss Molotov cocktails at Santorum anymore, because stuff like that is already illegal and there’s nothing stopping the Secret Service from tackling and arresting a guy carrying a bottle with a rag sticking out of it. The issue is that the language of this bill could easily apply to people that aren’t too disruptive.

AllanA (profile) says:

Unsafe politicos

The US Military has taken an oath as do all Police, Fed’s etc. to defend us against all enemies foreign and Domestic. What has gotten lost here is the definition of Domestic. Domestic enemy is by definition the government if it acts in such a manner as to disregard the Constitution. But the government is slowly trying to make Domestic mean domestic terrorism, among many other things.

Anonymous Coward says:

Unsafe politicos

“”Prudence, indeed, will dictate that governments long established, should not be changed for light and transient causes; and, accordingly, all experience [has] shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But, when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.” –Thomas Jefferson: Declaration of Independence, 1776. ME 1:29, Papers 1:429 “

http://www.famguardian.org/Subjects/Politics/ThomasJefferson/jeff1770.htm

I’m not advocating violence, at this point I don’t think it’s close to necessary and I do think, if we can organize large protests and organize a way to get more people informed about how authoritarian and plutocratic our government is, we can peacefully compel our government to act in the public interest. But it’s not going to be easy and it will take hard work.

Anonymous Coward says:

Unsafe politicos

“The right to bear arms stemmed out of needing a militia…see back in the day, they didn’t have a formal army so it was the populace that needed to be armed.”

That was part of the reason why we had a right to bear arms, but the most important reason is the following.

“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government”

“The beauty of the Second Amendment is that it will not be needed until they try to take it. “

“What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? “

“God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty…. And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure. “

All from Thomas Jefferson a great american. His thoughts and ideas are still good today.

http://answers.yahoo.com/question/index?qid=20110111114140AAfRkDn

Posted by deucedog

The founding fathers in general, and Thomas Jefferson in particular, were not ambiguous about the fact that the right to bear arms is to protect the people from government.

?The right of the people to keep and bear arms shall not be infringed.? The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. ? Nunn vs. State 1846

The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed ? Thomas Jefferson

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops? ? Noah Webster

http://gds44.wordpress.com/tag/right-to-keep-and-bear-arms/

Though that last quote by Noah Webster doesn’t really apply so much anymore, partly thanks to government advances in military weaponry (ie: tanks, airplanes, etc…), and partly thanks to so many weapon regulations that ordinary people aren’t really allowed to carry weapons powerful enough to collectively defend ourselves against our very powerful government if it so chooses to be oppressive.

I think it’s kinda sad that our right to bear arms has been so eroded over the years and even the suggestion that we should have the right to more freely bear (more powerful) weapons is considered hearsay by the government and might get you investigated. Personally I don’t own any weapons and I don’t intend to, and I’ve hardly ever even fired a gun, but I still support people’s right to bear arms.

Anonymous Coward says:

Re:

“It’s not about “walking the streets” as much as planned events”

This is absolute nonsense. Laws that guard against assassinating politicians already exist, if someone is going to assassinate a politician the fact that it’s against the law to obtain a weapon will not convince that person not to do it. That person already intends to break the law, what’s another law that they are to break going to do? The only thing it will do is disarm law abiding citizens, criminals, by definition, will break the law regardless. and if they obtain a weapon through the black market, a weapon who’s traded history mostly exists in the black market (because it’s mostly illegal in the white market), it will be much harder for investigators to trace the origins and history of that weapon to find the killer in the event of a sophisticated and coordinated attack.

Anonymous Coward says:

Re:

“A entitlement world that we live in these days (think “I am entitled to pirate this movie because the price is too high”) also has many other faces. There is also a mentality that exists (including here on Techdirt) that the minority can somehow dictate to the majority.”

I agree, the mentality that a minority can somehow dictate a majority does exist on Techdirt. That mentality stems from IP extremists. Look at how extreme and one sided our IP laws are, 95+ year copy protection lengths coupled with a one sided penalty structure that encourages IP trolls to abuse the system. and all dictated by a small minority who negotiates these sorts of laws, like ACTA, in secrecy because they know too well that the majority doesn’t want these laws.

Remember Creative America tried to start an astroturfing campaign to get people to sign a pro-SOPA petition? Remember how badly that failed? Very few people signed it, the MPAA inflated the numbers (even techdirt IP extremists were fooled being that not a single commenter even mentioned the MPAA’s later (lack of an) explanation before the MPAA mentioned it because it wasn’t at all obvious), many who did sign the petition later said they were fooled and demanded their signatures be removed, and the MPAA even resorted to paying people to get signatures out of desperation.

Yet signatures opposing SOPA reached in the millions in hardly any time.

The majority doesn’t want 95+ year copy protection lengths, only a small minority wants our currently one sided laws. and this minority thinks it can dictate its wishes to the majority through secretive negotiations, campaign contributions in return for laws (Chris Dodd practically admit to this), and the revolving door.

Raven Morris says:

Re:

The US court system has mostly been bought out by corporate interest, same as the rest of the political spectrum.

Perhaps you’re unaware that Obama signs assassination orders against people with no charges against them? That he supports torture without charges? Or that he has lied across the board on his most important campaign promises?

You seem to think that the US political system is anything other than pure corruption, but it isn’t.

btr1701 (profile) says:

Unsafe politicos

> If the politician is such a fuck-up that he needs Secret Service
> protection and to be shielded from the general public should
> such a person even be in government in any function at all?

Are you fucking kidding me? The idea that a president– ANY president– could function effectively without protection in the modern world is ridiculous.

No, needing a protective detail is not evidence that the president is a fuck-up.

Was Abraham Lincoln a fuck-up? How about John Kennedy?

There are people out there, many people– from the dangerously mentally unstable, like John Hinckley who tried to kill a president just to impress a girl, to organized groups, both foreign and domestic, who would just love to lop the head off a superpower– who will kill the US president in a heartbeat if given the chance and it has absolutely nothing to do with whether the politician in question is a fuck-up or not.

Grow up.

UNlikely expert says:

The reality of reality

Stuff like this gets posted just to see who says what. Here goes. First, they love to see our blood boil. Some people are just playing politics (in all appearances contrary). Of course there has to be somebody up there who appears to make sense, crying out the injustices for the little people. But for as always, to what avail. Its just another case of 51 to 49. It can actually empower a person to know exactly how much they dislike the human race, and still be human, perhaps a bit too tired to run the course anymore. Just stop waiting around for the next law to knock you down. Try to do some push ups or go to the park. Eat that cookie, but enjoy it.

chip says:

Um actually if you look at the current law “18 USC ? 1752 – RESTRICTED BUILDING OR GROUNDS” , it already does all the things that HR 347 is doing. It already includes “other person protected by the Secret Service.” I already makes illegal entry of a restricted area. And Amash is wrong on this: “The bill expands current law to make it a crime to enter or remain in an area where an official is visiting even if the person does not know it’s illegal to be in that area and has no reason to suspect it’s illegal.”

He’s probably saying this because whereas current law applies to persons who “willingly and knowingly” enter, HR 347 says just “knowingly.” But from a legal standpoint there is no difference.

If you actually read closely and compare the existing law and HR 347, they are saying the same thing, the only difference being that it adds one thing.

The definition of “restricted buildings or grounds” is exactly the same as current law but HR347 adds to that “The White House or its grounds or the Vice President’s official residence or its grounds”

This does not significantly change existing law. It just extends existing law to the residences of the Pres and Vice Pres.

The current version of the law came into effect in 2006, and has been law since then. The main issues this article focuses on are already existing law. The punishment is the same in HR 347 as existing law as well.

Thomas (profile) says:

Congress..

doesn’t give a rats tushie about the Constitution, period. They do not believe in separation of church and state, they do not believe in First Amendment, or any of the others. They have zero qualms about turning us into even more of a police state. Perhaps they have been studying the Gestapo manuals in an English translation? (obviously they can’t read a foreign language).

btr1701 (profile) says:

Unsafe politicos

> Saying “we need to protect the President” is about as irrefutable
> as “we can’t let the terrorists win”. It makes for good rhetoric
> to pass something that is tangentially related to it.

Which has jack-all to do with the assertion to which I was responding. The claim was that any politician that needs Secret Service protection is by definition so fucked up that they shouldn’t be allowed to serve in office.

That claim is so idiotic on its face, I almost didn’t know where to start with my response.

ben says:

Response to: kenichi tanaka on Mar 2nd, 2012 @ 9:28am

Um.. Obama signed a bill that allows the military to police the US (which is unconstitutional) and detain ANYONE WITHOUT CHARGE OR TRIAL (also unconstitutional). Even though he issued a signing statement (also unconstitutional) saying he wouldn’t use it on Americans, AND a presidential directive (unconstitutional) saying basically the same thing, it doesn’t matter because THE LAW STILL EXISTS. Obama is not out to help you. He’s out to help those he’s always helped, the wealthy.

TheStupidOne says:

Re:

According to Wikipedia: US prison population at the end of 2010 = 2,266,800

According to Wolfram|Alpha: Number of countries with population less than 2,266,800 = 98

According to Wolfram|Alpha: Number of countries on the planet = 204

So the US prison population is larger than the population of 48% of the recognized countries on the planet :

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