Some Protesting Declared IllegalEroding of Free Speech Continues as House Approves HR 347

The House of Representatives approved a bill on Monday that outlaws protests in instances where certain government officials are nearby, whether or not you even know it. The US House of Representatives voted 388-to-3 in favor of HR 347, formally entitled the "Federal Restricted Buildings and Grounds Improvement Act of 2011."

The effect of the bill is to make it a crime to knowingly, as opposed to willfully, protest (or be present in a certain manner) in designated areas or at an event attended to by the Secret Service.

As the ACLU summarized,  in order convict under the “willfully” standard, a jury “must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.” In contrast, knowingly “requires proof of knowledge of the facts that constitute the offense.”

Thus, what has many free speech advocates concerned, is a hypothetical situation in which a person is attempting to exercise their constitutionally protected right to protest, not knowing that the Secret Service is present, and thus finds themselves in a situation in which they can be fined, or put in prison for up to a year, or both. As it turns out, the Secret Service attends many events in which presidents (either current or former), may not even be present. Thus, knowing of their presence may not be entirely straightforward.

The relevant sections of this text which have the likes of the ACLU up in arms, are as follows:

    (1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so
    `(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;
    (b) The punishment for a violation of subsection (a) is--
    `(2) a fine under this title or imprisonment for not more than one year, or both, in any other case.
    (c) In this section--
    `(1) the term `restricted buildings or grounds' means any posted, cordoned off, or otherwise restricted area--
    `(A) of the White House or its grounds, or the Vice President's official residence or its grounds;
    `(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; and

Additionally, aside from the fact that the language of this resolution may appear to be legitimate, e.g. entering into grounds without lawful authority to do so will probably carry criminal trespass consequences anyway, how about the impact of chilling of Free Speech that this is bound to have?

Granted, the language condones "disorderly or disruptive conduct" that "in fact, impedes or disrupts the orderly conduct [of governmental or whatever business is being carried out]," but what that means exactly is somewhat unclear.

It is for that reason that the bill might get slammed as void for vagueness, as it "may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused." i.e., as the ACLU suggests, a person might not know that they are committing the offense, not only because of the secrecy of the  aptly named Secret Service, but also because of the potential inability to know what rises to the level of disorderly or disruptive conduct that does in fact impede or disrupt.

However, eventhough a law may appear unconstitutional, once it is signed into law, it remains on the books until someone invalidates it. The typical manner in which this occurs is by a person being convicted of the law bringing a challenge to the law and their conviction in order to have it ruled invalid and unconstitutional.

It will be interesting to see whether the bill becomes law, and the impact it has on the current outspoken free speech movements it was allegedly designed to impact, e.g. Occupy.