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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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