In post-Occupy America, it’s often hard to know whether new citizen protest laws signal the end of free speech or a mere tweak of the machine. That looks to be the case with the new anti-protest bill that passed the House of Representatives overwhelmingly two weeks ago and was signed into law by the president soon thereafter. On its face, the new legislation doesn’t change a whole lot. Yet the Occupy protesters are in an uproar that the bill both targets them and also signals a radical shift in free speech law. Almost nobody else seems to have noticed it at all. Who’s right?
That all depends on what you want to protest and where.
H.R. 347, benignly titled the Federal Restricted Buildings and Grounds Improvement Act, passed the House 399-3. Such a lopsided vote suggests that nobody in Congress is bothered by this, on either side of the aisle. When President Obama signed it on March 8, almost nobody seems to have cared.
Simply put, the way the bill will “improve” public grounds is by moving all those unsightly protesters elsewhere. The law purports to update an old law, Section 1752 of Title 18 of the United States Code, that restricted areas around the president, vice president, or any others under the protection of the Secret Service. The original law was enacted in 1971 and amended in 2006. At first blush, the big change here is that while the old law made it a federal offense to “willfully and knowingly” enter a restricted space, now prosecutors need only show that you did it “knowingly”—that you knew the area was restricted, even if you didn’t know it was illegal to enter the space. This has been characterized in some quarters as a small technical change that hardly warrants an arched eyebrow, much less a protest.
But it’s important to understand what has changed since the original law was enacted in 1971, because it shows how much a tiny tweak to the intent requirement in a statute can impact the free speech of everyone.
For one thing, the law makes it easier for the government to criminalize protest. Period. It is a federal offense, punishable by up to 10 years in prison to protest anywhere the Secret Service might be guarding someone. For another, it’s almost impossible to predict what constitutes“disorderly or disruptive conduct” or what sorts of conduct authorities deem to “impede or disrupt the orderly conduct of Government business or official functions.”