Posts Tagged ‘First Amendment

27
Mar
12

Attack on the First Amendment?

Original found here.

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

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 toimpede 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.

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05
Jul
10

Suspension of the First Amendment – Freedom of Press

I like it. Control the press, just like the Communist did!

25
Jun
10

Congress Attacks Free Speech… and me…

Original here.

The DISCLOSE Act, an acronym for the egregiously misnamed “Democracy Is Strengthened by Casting Light on Spending in Elections Act”, is expected to come to a vote soon in the House. Proponents of the bill want to sell it as correcting the Supreme Court Citizens United decision regarding the First Amendment right of American corporations. President Obama took the unprecedented action of publicly scolding the Supreme Court for this decision during his State of the Union address. He called for legislation to prevent foreign companies from taking advantage of this ruling.

The President’s alarm was itself a red herring as there is already existing law, the Foreign Agents Registration Act of 1996, which prohibits independent political advertising by foreign nationals or foreign companies. The DISCLOSE Act produced by Congress at the behest of the President should more accurately be called the “Shut Uppa You Mouth Act”. It goes far beyond addressing the bogus concern about foreign entities influencing American elections. The bill adds burdensome provisions on reporting and disclosing by domestic entities which will disproportionately affect corporations over unions. For example, corporations holding government contracts are restricted in ways that unions with government contracts are not. Continue reading ‘Congress Attacks Free Speech… and me…’

27
Sep
09

The Destruction of the First Amendment

The Constitution. The highest law in America.
First Amendment: Freedom of Speech, Press, Religion and Petition

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

“I declare this to be an unlawful assembly. I order all those assembled to disperse.”

Can someone please tell me what law is overriding the Constitution that is not allowing these people to peacefully assemble?

This really disgusts me. I wish they would have just stood their ground and got arrested and taken it to court on Constitutional law grounds.

20
Mar
09

Mandatory Volunteerism = Free Slave: HR 1388

Interesting. I thought that America was the “Land of the Free,” but it appears that I was wrong. On 18 March 2009 the House of Representatives voted on HR 1388 – the Generations Invigorating Volunteerism and Education Act or the GIVE Act with a vote of 321 to 105. (See how your representatives voted here).

Now let me make one thing clear. I am all for people volunteering their time to the community. I have long said that if everyone quit being so selfish that we would be better off. It is our neighbors that make life good, not the government. Even in my life, I can remember having neighbors who looked out for my siblings and me. And that is the way it should be;  the government should not look after people. But, I digress. I like volunteer work, but mandatory volunteer work. Um, no….

With this new bill it is possible that any able bodied person will have to volunteer their time to some sort of service of which the government will determine. This is interesting because as I remember it, we have the Thirteenth Amendment, which reads:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have the power to enforce this article by appropriate legislation.

What part of “involuntary servitude” does not make sense here fellas? Hell, they even have a “Senior Corps” built into this plan for people over 55!

Let’s also look at amendment 12 to this bill, which reads:

Amendment to prohibit organizations from attempting to influence legislation; organize or engage in protests, petitions, boycotts, or strikes; and assist, promote, or deter union organizing. Proposed: Mar 18, 2009. Accepted: Mar 18, 2009.

Hello? First Amendment? Please notice that this Amendment was ACCEPTED!

Moving on Section 1710 reads:

STUDY TO EVALUATE THE EFFECTIVENESS OF A CENTRALIZED ELECTRONIC CITIZENSHIP VERIFICATION SYSTEM.
(a) Study- The Corporation for National and Community Service shall conduct a study to determine the effectiveness of a centralized electronic citizenship verification system which would allow the Corporation to share employment eligibility information with the Department of Education in order to reduce administrative burden and lower costs for member programs. This study shall identify–

A WHAT? A centralized electronic citizenship verification system? Is this the National ID? Or the RFID chip? Or what? C’mon now…

Scaaaaaaaaaaaaaarrrrrrryyyyyyyyyyyy….. On the bright side, thank you to Congressman Flake for voting Nay on this monstrosity!




Quotes:

"We are apt to shut our eyes against a painful truth... For my part, I am willing to know the whole truth; to know the worst; and to provide for it." - Patrick Henry

"Politicians and diapers both need to be changed, and for the same reason." - Anonymous

"Right is right, even if everyone is against it, and wrong is wrong, even if everyone is for it." - William Penn

"Naturally the common people don't want war; neither in Russia, nor in England, nor in America, nor in Germany. That is understood. But after all, it is the leaders of the country who determine policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country" - Hermann Goering

"I know that nothing good lives in me, that is, in my sinful nature. For I have the desire to do what is good, but I cannot carry it out. For what I do is not the good I want to do; no, the evil I do not want to do this I keep on doing." - Romans 7:18-19

"Twenty years from now you will be more disappointed by the things you didn't do than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover." - Mark Twain

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