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House and Senate-Passed Bill Could Help Feds Crack Down on Protesters

March 6, 2012 - by Donny Shaw

A couple weeks ago, the House passed a bill that closes a security loophole to clarify in federal statute that it is a crime to trespass on White House property or any other federal property protected by the Secret Service. That’s a relatively innocuous change in law, and it’s probably just a response to the embarrassing White House party crashers incident back in 2009. But the bill also does something else that may have much broader implications, including an expansion of the government’s ability to lock up protesters. It amends a long-standing law againt “willfully and knowingly” trespassing on restricted grounds without lawful authority so that criminal penalties can be applied in a case where a person “knowingly” trespasses. “Willfully” has been dropped from the law by the bill.

To discern the significance of this small change in wording, we need to look at federal court precedent. In 2004, a man who was arrested by the South Carolina state police for protesting against the Iraq War outside of a designated “free-speech zone” at ain airforce base was indicted by the federal government for trespassing on restricted grounds. In that case, U.S. v. Bursey, the court focused on whether the defendant “willfully” violated the law because they believed that the hurdle of precedent for proving willfulness is higher than for proving knowledge. Here’s the precedent they cite in a footnote:

We focus our discussion on whether Bursey “willfully” violated the Statute, because, generally, “[m]ore is required” with respect to conduct performed willfully than conduct performed knowingly. Bryan v. United States, 524 U.S. 184, 193 (1998); see also United States v. Jarvouhey, 117 F.3d 440, 442 (9th Cir. 1997) (concluding willful violation of 18 U.S.C. § 924(a) requires “more culpable” mens rea than knowing violation). As a general proposition, the statutory term “knowingly” requires the Government to prove only that the defendant had knowledge of the facts underlying the offense. See Bryan, 524 U.S. at 192-93.

In other words, according to the courts, “willful” means that you are aware that what you are doing is against some law; “knowing” means that you are simply conscious of what you are doing.

Under this bill restricted areas are defined to include “a building or grounds restricted in conjunction with an event designated as a special event of national significance.” So, for example, the bill would seem to allow the federal government to indict any protester who chooses to enter a cordoned-off area at a protest outside an IMF meeting. Without the bill, they likely would not prevail in court because the average protester is probably not aware that there is a special federal statue regarding what they are doing. The punishment provided by the bill would be up to one year in prison, or up to 10 years in prison if the person is carrying a “deadly or dangerous weapon.”

The bill’s supporters in Congress have been aggressive in their claim that interpretations like mine are incorrect. For example, bill sponsor Rep. Tom Rooney [R, FL-16] tweeted: “H.R. 347 does not effect your right to protest in any way whatsoever. It deals with fence jumpers, not protesters.” But readings of the legislative text, federal statute, and legal precedent suggest that the bill’s supporters are simply unaware of the significance of the bill’s subtle changes in wording. As always with bills in Congress, it’s important to look at the potential for how it could be used and abused, not simply the intention of the members of Congress who sponsored it.

The bill has been approved by both the Senate and the House. It is currently waiting to be signed into law by President Obama.

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  • gpfsupplies 03/07/2012 5:17am

    GPFS Franchise, Inc. has been approved by California Department of Corporations to start the sale of Franchise Opportunities.

  • Oh, and OF COURSE OBAMA WILL SIGN IT! So much for the Dems being for personal freedoms!

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  • daphnebascos 03/07/2012 8:58pm

    very informative.

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  • rczar 03/08/2012 1:47pm

    Free Speech and Assembly has been “stolen” from our Constitution via the signing of this poorly written Trespass Bill. “Our” bipartisan Congress and the “lapdog” press has kidnapped the American public and perpetrated the most tyrannical heist of freedom in this country’s history. Good bye to the 1st Amendment.

    Read: "Free Speech and Assembly Stolen in Bipartisan Heist of 1st Amendment:

    The Trespass Bill and the NDAA have given Obama the rights to “remove” dissenters and lock them up indefinitely.

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    bongie56 03/29/2012 10:49pm

    You must be one of thoses the sky is falling I would be asking your self who wrote the bill and right now who is taking all rights away from the people take a good look at the Middle of the Country you have from democracy being taken away to the legislators and Governors playing doctors on women to Passing Vagina Laws now someone is not getting it at home to Vigilantism to a Governor being elected to run the state and all he dose is pass it on because he’s to lazy to do the work so he brings in a Emergency Manager or the Sticking things up a women and this is the real peoples agenda and where’s the Jobs that Republicans were voted in to do dose not sound like that going to happen any time soon

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  • Brian62 03/16/2012 3:34pm

    Great title Donny! It illuminates how you look at our nation.

  • Redfray 03/19/2012 4:51pm

    What an important bill to be passing. Why did those dumb republican vote to pass this bill? Of all the bills that need to be passed, why this one, it doesn’t help the tax paying people. We need these inconsiderate elected people to pass some bills that will protect the American tax payers, that want happen.

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    bongie56 03/29/2012 10:14pm

    I hope that the President dose not sign it and if he dose he will be doing a real blow to Freedom of Speech Republicans. think the more they take the more we will forget about what there doing to this Country and pay back is a B The Robots of Wall St. think that this vote on the health care will change my vote H it makes me even more because I no they will be in the back ground and that’s not far enough This Supreme Court are a joke by interfering in a Legislative Decision not a Court this court is known to try and legislate back in 1937 They received Criticism then and will again it’s funny how every election this court are always there now what kind of court are they again a party line Robot court and who are those Groups that brought this fourth there the Friends of the Court that says it all I seen this coming in 2010 they the Republicans were just to close and I new that they needed a lot more than themselves to take over this Government anyway they could

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  • OwenDimson 03/23/2012 1:40am

    If this bill will be approved, it could be possible that protesters will do some other way to shout out what they truly feel and believe. Although this situation is inevitable, there will still be some problems that will exists due to this, but hopefully, it would help.
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  • MariaBarry 03/23/2012 3:06am

    Though this bill had been approved by the Senate and the House hopefully it will not affect others.

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  • RejectGovt 04/06/2012 1:45am

    “Willingly,” “knowingly,” “free-speech zone”; What the f-ck ever! The United States IS the free-speech zone. Any rule or law that states otherwise is unconstitutional. Period.

  • mouseissue 04/10/2012 1:36pm

    Next to Obamacare, this is the most blatantly unconstitutional law I’ve seen written in all my 60 years.

    For so-called protestors that “jump fences” and present a threat to another’s health and/or welfare, this makes some sense.
    But how many innocent citizens speaking their minds would be locked up because of this law?… It’s scary to think!

    It’s very clear that our Constitution is being undermined at every turn.
    Soon, it will be no more than a historic document.

    At this rate, the America I grew up in would be a foreign land to my grandchildren unless the Supreme Court dumps this law.

  • jaymowat 05/17/2012 1:43pm

    This is clearly an unconstitutional law, and it is scary to see this kind of thing going on in Congress. It gives the government the “right” to lock up legitimate protesters whenever they feel like here

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