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This Is NOT What Democracy Looks Like! Criminalizing First Amendment Rights

March 7th, 2012 | Filed under Activism, Politics & Government . Follow comments through RSS 2.0 feed. Click here to comment, or trackback.

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By John W. Whitehead, Rutherford.org

“Congress shall make no law… 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.” — First Amendment to the U.S. Constitution

One of the key ingredients in a democracy is the right to freely speak our minds to those who represent us. In fact, it is one of the few effective tools we have left to combat government corruption and demand accountability. But now, even that right is being chipped away by statutes and court rulings which weaken our ability to speak freely. Activities which were once considered a major component of democratic life in America are now being criminalized. Making matters worse, politicians have gone to great lengths in recent years to evade their contractual, constitutional duty to make themselves available to us and hear our grievances. That is what representative government is all about.

Unfortunately, with gas prices rising, the economy tanking, the increasingly unpopular war effort dragging on and public approval of Congress at an all-time low, members of Congress have been working hard to keep their unhappy constituents at a distance — avoiding town-hall meetings, making minimal public appearances while at home in their districts, only appearing at events in controlled settings where they’re the only ones talking, and if they must interact with constituents, doing so via telephone town meetings or impromptu visits to local businesses where the chances of being accosted by angry voters are greatly minimized. Consider that in the summer of 2011, 60 percent of Congress refused to hold town hall meetings with their constituents during their summer break. The ones who did often charged a fee for attendance. For example, Rep. Paul Ryan charged fifteen dollars per person for his public appearance, and Rep. Dan Quayle charged 35 dollars per person.

Now, in a self-serving move aimed more at insulating government officials from discontent voters than protecting their hides, Congress has overwhelmingly approved legislation that will keep the public not just at arms’ length distance but a football field away by making it a federal crime to protest or assemble in the vicinity of protected government officials. The Trespass Bill (the Federal Restricted Buildings and Grounds Improvement Act of 2011) creates a roving “bubble” zone or perimeter around select government officials and dignitaries (anyone protected by the Secret Service), as well as any building or grounds “restricted in conjunction with an event designated as a special event of national significance.”

The bill’s language is so overly broad as to put an end to free speech, political protest and the right to peaceably assemble in all areas where government officials happen to be present. Rep. Justin Amash (R-MI) was one of only three members of the House of Representatives to vote against the legislation. As he explains:

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.

Specifically, the bill, which now awaits President Obama’s signature, levies a fine and up to a year in prison against anyone found in violation, and if the person violating the statute is carrying a “dangerous weapon,” the prison sentence is bumped up to no more than ten years. Thus, a person eating in a diner while a presidential candidate is trying to score political points with the locals could be arrested if government agents determine that he is acting “disorderly.” Mind you, depending on who’s making the assessment, anything can be considered disorderly, including someone exercising his right to free speech by muttering to himself about a government official. And if that person happens to have a pocketknife or nail clippers in his possession (or any other innocuous item that could be interpreted by the police as “dangerous”), he could face up to ten years in prison.

Given that the Secret Service not only protects the president but all past sitting presidents, members of Congress, foreign dignitaries, presidential candidates, and anyone whom the president determines needs protection, anywhere these officials happen to be becomes a zone where the First Amendment is effectively off-limits. The Secret Service is also in charge of securing National Special Security Events, which include events such as the G8 and NATO summits, the National Conventions of both major parties, and even the Super Bowl. Simply walking by one of these events places one in a zone of criminal trespass and thus makes him subject to arrest.

While the Trespass Bill may have started out with the best of intentions (it was one of many knee-jerk pieces of legislation introduced by members of Congress in the wake of the Gabrielle Giffords shooting in January 2011), it has ended up as the government’s declaration of zero tolerance for individuals exercising their First Amendment rights. Moreover, short of government officials patting down or body scanning every individual within proximity of a government official, this law is practically unenforceable. It’s doubtful this will even do much to deter determined psychopaths, who have a way of getting past the most determined barriers. What it will do, however, is keep law enforcement officials occupied with people who pose no threats whatsoever and distracted from the real threats.

It’s safe to say that what happened to Steven Howards will, under this law, become a common occurrence. Howards was at a Colorado shopping mall with his son in June 2006 when he learned that then-Vice President Dick Cheney and his Secret Service security detail were at the mall greeting the public. A Secret Service agent overheard Howards telling someone that he was going to approach Cheney, express his opposition to the war in Iraq, and ask him “how many kids he’s killed today.” Howards eventually approached Cheney and shared his view that Cheney’s policies in Iraq “are disgusting.” When Cheney turned and began to walk away, Howards brushed the Vice President’s shoulder with his hand. The Secret Service subsequently arrested and jailed Howards, charging him with assaulting the Vice President. The assault charges were later dropped. However, the U.S. Supreme Court has now agreed to hear Howards’ case on whether or not his right to free speech was extinguished.

The United States has historically stood for unfettered free speech, which is vital to a functioning democracy. Unfortunately, the tendency on the part of government and law enforcement officials to purge dissent has largely undermined the First Amendment’s safeguards for political free speech. The authoritarian mindset undergirding these roving bubble zones is no different from that which gave rise to “free speech zones,” which are government-sanctioned areas located far away from government officials, into which activists and citizens are herded at political rallies and events. Both zones, however, have the same end result: dissent is muted or silenced altogether, and the centers of power are shielded from the citizen.

Free speech zones have become commonplace at political rallies and the national conventions of both major political parties. One of the most infamous free speech zones was erected at the 2004 Democratic National Convention in Boston. Not so much a zone of free expression as a cage, it was a space enclosed by chain link fences, Jersey walls, and razor wire. Judge Douglas Woodlock, who toured the free speech cage before the convention, noted, “One cannot conceive of other elements put in place to make a space more of an affront to the idea of free expression than the designated demonstration zone.”

Bubble zones and free speech zones, in essence, destroy the very purpose of the First Amendment, which assures us of the right to peaceably assemble and petition the government for a redress of grievances. In other words, we, as citizens, have a constitutional right to address our government officials in a public manner so that they can hear our grievances or concerns. What these zones do, however, is create insulated barriers around public officials, thus keeping us out of sight and sound’s reach of those who are supposed to represent us. Many prominent activists, from Occupiers, to the Tea Party, from anti-war protestors and so on, will be shut out from the view of public officials under this legislation. These zones also serve a secondary purpose, which is to chill free speech by intimidating citizens into remaining silent.

Consider this: if these types of laws had been in effect during the Civil Rights movement, there would have been no March on Washington. Martin Luther King Jr. and his fellow activists would have been rendered criminals. And King’s call for “militant nonviolent resistance” would have been silenced by police in riot gear.

- John W. Whitehead is an attorney and author who has written, debated and practiced widely in the area of constitutional law and human rights. Whitehead serves as the Rutherford Institute’s president and spokesperson. Please visit Rutherford.org for more information.

TAKE ACTION: InterOccupy Organizing Call

Register For: Stop “Trespass” Bill HR 347

HOST: Occupy DC / Direct Action

FOR WHOM: Occupiers Nationwide

PURPOSE: To organize a nationwide day of action to stop President Obama from signing the “Trespass” Bill – HR 347. It would prohibit disturbances, even from peaceful, otherwise lawful protesting, near anyone protected by Secret Service agents, any visiting dignitaries, and at any government functions.

REGISTER HERE

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    Previous Comments:

  1. [...] This Is NOT What Democracy Looks Like! Criminalizing First Amendment Rights [...]

  2. [...] This Is NOT What Democracy Looks Like! Criminalizing First Amendment Rights [...]

  3. Francoise Arouete said:

    “Tearing away” at the First Amendment right to peaceably assemble. My, my, how the hyperbole doth fly!  Who writes this hysterical rubbish? High school sophomores?

    Instead of telling us, with your own hyperbolic propagandistic adjectives, what the Bill says why don’t you just provide a copy of the bill so we can, like, think for ourselves? Or does that run too much of a risk for you? Hysterical propaganda like this only serves to damage your own credibility. To paraphrase Abraham Lincoln, when it comes to matters of law would-be journalists are best to remain silent and presumed ignorant rather than open their mouths to remove all doubt.

    It is axiomatic that no law is absolute- not even the First Amendment. This law clearly does not violate the First Amendment but merely enables it’s enforcement. Come on! This is a legal no brainer. Can you read?! The First Amendment protects the “right of the people peaceably to assemble.” It says what it means and it means what it says.

    No doubt the bill if passed into law and signed by the president will face legal challenge but having actually read it it appears to be entirely constitutional as a “reasonable time, place and manner restriction.”  It is sufficiently narrowly drawn as it requires a ‘knowing intent to impede or disrupt the orderly conduct of Government business or official functions,’ It requires one to engage in “disorderly or disruptive conduct [that] in fact, impedes or disrupts the orderly conduct of Government business or official functions.”

    That, by definition, is not ‘peaceful assembly’ which is all First Amendment protects. The right to ‘peaceful assembly’ clearly does not include the right to intentionally impede or disrupt the orderly conduct of Government  nor does it grant anyone the right engage in “disorderly or disruptive conduct [that] in fact, impedes or disrupts the orderly conduct of Government business.

  4. Anonymous said:

     I’m no expert on US law or constitution, but if you read the very first part of the quoted First amendment above, you know, the bit about congress not to abridge….. Which is exactly and precisely what HR347 is.

    If you want to live in a nation like Zimbabwe, sure, go ahead and support laws like this.

  5. Francoise Arouete said:

    This is absolutely false propaganda. It’s a legal no-brainer.   See
    H.R. 347 Does Not Violate First Amendment at http://open.salon.com/blog/f_arouete/2012/03/07/hr_347_does_not_violate_first_amendment

    Can we please stop these hysterical please to ignorance that do little more than trash your own credibility?

  6. Francoise Arouete said:

     Clearly you are NO expert but this take no expertise!This is absolutely false propaganda. It’s a legal no-brainer.   See
    H.R. 347 Does Not Violate First Amendment at http://open.salon.com/blog/f_a...

    Can we please stop these hysterical please to ignorance? This is easy enough for w pea-shooter brain to grasp – provided they can read as a 6th grade level. HOW many children have been left behind?!

  7. Anton said:

    The Hill knows that the revolution will soon be coming to the neighborhood and it is preparing for it, trying to shield themselves from what is going to become an angry mob, and to no avail… there is no way of stopping it.

  8. Anonymous said:

    Democrats and Republicans are passing these fascist laws, so let’s vote AGAINST these traitors!

    The Green Party is the progressive alternative. The Green Party doesn’t accept corporate money and represents the 99%.

    5% of the vote will get the Green Party matching Federal funds.

    Your Green vote sends a message to the corporate parties that passing fascist laws and using military tactics to brutalize people exercising their freedom of speech will cost them votes.

    And this message is sent even if the Green you vote for loses.

    VOTE GREEN!

  9. Anonymous said:

     I call bullshit. The police can interpret ANYTHING as disorderly
    conduct! Anyone who thinks this protects the public is probably living a
    sheltered life and never gets out in the REAL world.

    And ANY demonstration can be considered ‘knowing intent to impede or disrupt the orderly conduct of Government’!

    This
    is a license to mow down peaceful protestors (like the Occupy Movement,
    who is obviously being targeted by this) by the military, and lock them
    up indefinitely.

    Francoise you have very little credibility, and
    are either incredibly naive or an apologist for the fascist disease
    infesting our country.

  10. Anonymous said:

     I call bullshit. The police can interpret ANYTHING as disorderly
    conduct! Anyone who thinks this protects the public is probably living a
    sheltered life and never gets out in the REAL world.

    And ANY demonstration can be considered ‘knowing intent to impede or disrupt the orderly conduct of Government’!

    This
    is a license to mow down peaceful protestors (like the Occupy Movement,
    who is obviously being targeted by this) by the military, and lock them
    up indefinitely.

    Francoise you have very little credibility, and
    are either incredibly naive or an apologist for the fascist disease
    infesting our country.

  11. Annakis said:

    And also consider that all the police have to do is say that a politician is going to make an appearance so whatever you are doing is in violation of this law and arrest you. It really amounts to the honesty of law enforcement and this gives them almost a blank check on arresting people who disagree.
    99% rally. Just have a politician show up and they can arrest everyone.

  12. Clyde Harkins said:

    Due some thoughtful research and you will find that Americans do not have any unalienable or inalienable rights that can actually be exercised as stated in the Declaration of Independence.  Why is this a fact?
    The 14th Amendment that was not lawfully passed in 1868 legally abolished all such rights and converted them into arbitary privleges and immunities.  Civil rights aren’t rights if they are granted by government.  What government gives it may also take away. You and I volunteer (most likely due to ignorance) to be persons and U. S. Citizens that made us slaves. Do not complain that the owner of your rights is now taking them away.

    Clyde

  13. Anonymous said:

    Or a Tea Party anti-rally to Govt’s spending.  I recently read a congresscritter complaint about the TPer’s inability to have a protest in DC.  I’m pretty sure the GOP whiner didn’t tell them that NDAA was why.

  14. Ronald Reed said:

    I appreciate your due diligence. Having looked up the law on GovTrac, and linked to the original posting on Thomas, I find it less problematic that even Kucinich and Lee voted for the original House version. (Both were among the non-voters on the reconciled bill that Obama signed.) It turned out, after looking up the statute itself, that the real damage had already been done in 2006 and 1994, when the sanction was changed from a misdemeanor with a maximum sentence of six months and a $500 fine to a felony with a year’s imprisonment for non-violent gathering, and an unspecified and therefore potentially unlimited fine. HR347 and its accompanying Senate bill basically reduced the verbiage of the 2006 law, without fundamentally altering it. 

    That said, it strikes me nevertheless as absurd that the people’s servants can tell the master of the house that s/he is forbidden to trespass without permission on her or his own property. After all, these “restricted” areas were paid for by the people who pay the salary of the restrictors. And the public spaces are becoming an endangered relic of pre-Security state times, with privatized functions and prohibitive fees taking their place, as well as the execrable and utterly fascistic “free speech zones.” The people are right to be concerned, if not hysterical; it is just that this particular bill does little to advance the police state from the major strides it had already made. A more constructive response would be to demand support for Ron Paul’s move to repeal the most objectionable parts of the NDAA-12, and for the bills in the Senate and House to define U.S. citizens and national residents as outside the purview of the terrorist legislation of the last few years, as a first step toward entire repeal. That, and refusing to support those who voted for the NDAA-12, for the Patriot Act, for the Defense bill of 1907 that effectively repealed the requirement for the 700-year-old tradition in English common law of _habeas corpus_, and for other similar legislation. 

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