HR 347/S1794: A Trespass on the First Amendment

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.

HR 347 and S 1794, the ‘‘Federal Restricted Buildings and Grounds Improvement Act of 2011” has nothing to do with improving landscaping around federal buildings.  This bill is being presented as a No Trespassing bill.  Reasonable people understand that restrictions and protections are needed for government officials and government functions.  However, this legislation makes it a federal crime to simply DISRUPT the ORDERLY CONDUCT of government.  The violator doesn’t have to be on the grounds where the government business is being conducted, just within the vicinity of the self-proclaimed business. The law is not limited to buildings or locations as the title suggests, but seems to be “roving” and follows persons protected by Secret Service wherever they go.1752(a)(2) knowingly, and with intent to impede or disrupt the orderly conduct of government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;

1752(a)(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds;

1752(c)(1) the term ‘restricted buildings or grounds’ means any posted, cordoned off, or otherwise restricted area— (B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance;

The right protected in the First Amendment is the right to peaceably assemble.  We do not have the right to impede the flow of traffic, either on sidewalks or roadways.  We do not have the right to impede anyone’s business practices.  But this law is not about private business, it is about government operations.

This Congress has a habit of writing in vague and overbroad terms; yet, in order for laws to be Constitutionally sound they CANNOT be vague and overbroad in ANY aspect, and they can ONLY interfere with the rights of the people in as narrow a capacity as necessary.  But this law makes it a crime to disrupt the government.  The Supreme Court has said this type of broad language gives too much power to the government, and they have been saying this since 1939.  This law actually places the desire of the government to be free from disruption over the right of the people to redress the government of their grievances.

Suppose your Congressman, who is under secret service protection, has a town hall meeting and many members of the community show up to challenge him on his voting record.  This law could be construed to allow federal charges to be brought against these citizens for disrupting his town hall meeting.  After all, it will not be hard to claim that people who are not happy with the Congressman’s voting record had the “intent” to disrupt this meeting.  This vague and overbroad language has the potential to ultimately prevent people from gathering outside any government building or politician’s function for fear of being charged with a federal offense.   In Constitutional law, we call that a “chilling effect” and the Supreme Court has always held these restrictions to be unconstitutional.  After all, as the people in this video were forced to decide, who can afford to go to jail to stand for their rights, even if they will win?

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.  The Court in Hague v. CID, 307 U.S. 496 (1939), memorably stated;

Wherever the title of streets and parks may rest, they have immemorially been heldin trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

The Supreme Court ruled in Boos v. Barry, 485 U.S. 312, 318 (1988), that protesting outside an embassy is worthy of Constitutional protection. Washington DC attempted to make this protest unlawful because it disrupted the business in the embassy.  However, the Court recognized that freedom of speech “reflects a ‘profound national commitment’ to the principle” and “‘debate on public issues should be uninhibited, robust, and wide-open.’”  The Supreme Court has “consistently commented on the central importance of protecting speech on public issues.”

Additionally, as if to reaffirm the Court in Hague, the Court in United States v. Grace, 461 U.S. 171, 177 (1983), stated that “`Public places’ are historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be `public forums.'”  Again in Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, (1983), the Supreme Court chimes in on this issue of the right to protest on public grounds.

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” emphasis added.

Attempts to silence the people, like in this video, were perpetrated by governments using the claim that orderly government and the desire to be disruption free should outweigh our Constitutionally protected rights.  Each time the Supreme Court has made it abundantly clear that the orderly conduct of Government is NOT the standard to be protected.  People have the right to complain, the right to have their voices be heard, the right to redress their grievances in the form of protests. These actions are supposed to make the government take notice. Disruption cannot be the standard to stop speech.  To allow the government to create this new standard allows the government to tell us to sit down and shut up.  What happens to the man in this video under the new law after Rep. Jim Moran (D-VA) tells him to sit down and shut up?

The chilling effect occurs not in the fact that you are denied your due process.  If you are arrested because of unlawful legislation you can fight the prosecution and even sue the government for violating your rights.  If the Supreme Court has not become completely corrupted you have fairly good odds of winning.  But, anyone who has been wronged by a government agency can tell you, a victory will often come at the expense of a ruined life and livelihood.  Under this language could Bob Etheridge have press charges against the student he assaulted for “impeding government business?”

The bottom line is that there are laws in every municipality that punish Trespass, Disorderly Conduct, Assault, and any other crime involving real threats against government and people.  Why do we need a vague and overbroad FEDERAL LAW to enforce laws that are already in effect, when that law could encroach on our protected rights?   William Penn said, “Necessity, it is said, is the plea for every infringement of human liberty; it is the argument of tyrants and the creed of slaves.”  The fact is, we don’t need a “Federal Trespass Bill.”  We already have one; it’s called the Bill of Rights!

When will we have enough of government intrusion on our Constitutionally protected rights? We were outraged because we are Taxed Enough Already.  When will we recognize that if we cannot trust the government with our finances, then we certainly cannot trust the government with our Liberty?