You Can’t Occupy This

The government says the anti-protest bill was just a small tweak of the existing law. Don’t believe it.

By Dahlia Lithwick and Raymond Vasvari

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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.”

The types of events and individuals warranting Secret Service protection have grown exponentially since the law was enacted in 1971. Today, any occasion that is officially defined as a National Special Security Event calls for Secret Service protection. NSSE’s can include basketball championships, concerts, and the Winter Olympics, which have nothing whatsoever to do with government business, official functions, or improving public grounds. Every Super Bowl since 9/11 has been declared an NSSE.

And that brings us to the real problem with the change to the old protest law.  Instead of turning on a designated place, the protest ban turns on what persons and spaces are deemed to warrant Secret Service protection. It’s a perfect circle: The people who believe they are important enough to warrant protest can now shield themselves from protestors.  No wonder the Occupy supporters are worried.  In the spirit of “free speech zones,” this law creates another space in which protesters are free to be nowhere near the people they are protesting.

Consider that more than 6,700 people have been arrested at Occupy events since last September.  Thus, while these changes to the law are not the death of free speech, they aren’t as trivial as the administration would have you believe.  Rather, they are part of an incremental and persistent effort by the government to keep demonstrators away from events involving those at the top of the political food chain.

Let’s start by recalling that political speech—of the sort you might direct toward Newt Gingrich or Queen Beatrix of the Netherlands, both of whom merit Secret Service protection—is what the First Amendment most jealously protects.

Demonstrators can almost never be muzzled based on what it is they want to say. The First Amendment also has a special solicitude for speech in what are called traditional public fora. There is a presumed right of access to streets, sidewalks, and public parks for the purpose of engaging in political discussion and protest. And while the government can always impose reasonable limits on demonstrations to ensure public order, that power comes with a caveat: It must never be used to throttle unpopular opinion or to discriminate against disfavored speakers.  That is a powerful caveat: The degree of slack a court will cut any given restriction on public protest will rest on whether the government appears to be acting even handedly.

Restrictions that apply equally to all subjects and all points of view will usually be approved by the courts if they are narrowly designed to advance a significant governmental interest, such as public safety. But protest restrictions that discriminate based on subject or viewpoint must be absolutely necessary to serve a compelling state interest. Courts rarely permit them.

The changes in Section 1752 thus really do matter because they permit those in power to relegate their detractors to perform their political speech in remote locations, far from the public and the press. They do so in the name of protecting the security of the government official, despite the fact that their actual motivation for doing so has everything to do with the message of their opponents. Law professor Timothy Zick of William and Mary Law School published an outstanding analysis of what are known as “spatial tactics” in the Texas Law Review a few years back. When it comes to relegating demonstrators to obscurity, two approaches predominate: keeping protesters outside an expansive, sanitized bubble that surrounds the very event they have come to protest, or allowing them to come closer, but only within the confines of heavily policed “protest pens” that one federal judge likened to temporary internment camps.

Here’s one way the new legislation becomes doubly problematic: The exclusion zones imposed by Section 1752 have no natural or intuitive spatial boundaries. They can be as large as law enforcement claims is necessary to ensure the security of whoever the Secret Service is protecting. The “free speech zone” is a moving target, not a delineated area.

Brett Bursey learned that distinction the hard way. The 50-year-old brought an antiwar sign to an October 2002 Bush rally at an airport in Columbia, S.C. Police and Secret Service agents told Bursey to take his sign to a free speech zone a half-mile away or face arrest for trespass. He refused.

Bursey knew more about state law than the officers arresting him. Thirty years earlier, he had demonstrated against the Vietnam War when Richard Nixon visited the same airport, and demonstrators who refused to disperse were charged with trespass. The South Carolina Supreme Court threw out their convictions.

So, not unreasonably, Bursey thought he’d get the same result in 2002, and to a point, he was right. The state trespass charges against him were indeed dismissed on the strength of the precedent that he himself had helped to set a generation earlier. But four months later, he was charged with violating Section 1752. His conviction was upheld on appeal.

Bursey later described his experience to the San Francisco Chronicle.  When he asked authorities if the problem with him staying in the area was related to the content of his sign, police told him that it did.  As to geography: “The problem was, the restricted area kept moving. It was wherever I happened to be standing.”

Bursey might not have been convicted had he not engaged in a lengthy discussion with police regarding the legality of his actions, which helped to prove that his incursion was willful. A showing of that mental state is no longer necessary, however. In futzing with the intent requirements of Section 1752, Congress may well have had Bursey in mind.

It is tempting to dismiss the exile of protesters as a reasonable concession to security in what law enforcement would like you to believe is a new age of terrorism. After all, they will say, demonstrators are not being silenced; they are merely being denied access to the forum of their choice and the chance to amplify their own message by presenting it against the backdrop of the message they oppose. But that is precisely why we should be concerned.

Whatever they have come to say, the presence of demonstrators at these events carries a powerful message in and of itself  that cannot be delivered as effectively in any other place. Being permitted to deliver their message in the same forum and at the same time as the speaker they oppose highlights the passion and commitment that animates the protesters. It underscores the existence of dissent, which is precisely what those who would sanitize the space around high officials would have us forget.

In short, citizen protests puncture the pretty, patriotic illusion of a focus-grouped, Photoshopped media event, and replace it with the gritty patriotic reality of democracy in action.  That’s why the teeny cosmetic changes to Section 1752, which purport to be about new kinds of security, are really all about optics. They conflate dissent with danger, a Cold War habit which America was beginning to outgrow, but which after 9/11 seems to be a permanent part of the political landscape.

Dahlia Lithwick writes about the courts and the law for Slate.

Raymond Vasvari practices First Amendment law as a partner at Berkman Gordon Murray & DeVan in Cleveland. His blog, Somewhere Becoming Rain, deals with the first amendment, among other things.

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