Ready to Occupy? What You Need to Know about H.R. 347, the "Criminalizing Protest" Law

http://www.aclu.org/blog/free-speech/ready-occupy-what-you-need-know-about-hr-347-criminalizing-protest-law

Spring has sprung, the grass is riz . . . and the Occupy movement is about to ramp up again. Activists recently announced a general strike for May 1, and protests are expected at the NATO summit on May 20 in Chicago. Later, of course, we can expect demonstrations in connection with the Republican National Convention in Tampa in late August and the Democratic National Convention in Charlotte in early September.

Last month, I wrote about a then-little known bill designated H.R. 347 and titled the "Federal Restricted Buildings and Grounds Improvement Act of 2011." The law, signed by the president in mid-March, expands an existing statute that criminalizes certain activity in and around areas that are restricted by the Secret Service.

Given the approaching protests, it may be worth providing a more detail on how exactly the law works, and what protesters can expect. Preliminarily, it's important to define one particular term in the law: "restricted buildings or grounds." These are specific geographic zones that have been designated by the Secret Service, and can be located under H.R. 347 in three places:

• The White House or the vice president's residence.
• A building or area where any individual under Secret Service protection is visiting.
• A building or area at which a National Special Security Event (or "NSSE") is taking place (more on that in a second).

Under the existing statute, four types of activities were illegal with respect to these zones, and remain so under the new law:

• You cannot "knowingly" enter or remain in a restricted zone without lawful authority.
• You cannot "knowingly" engage in "disorderly or disruptive" conduct in or near a restricted zone. A prosecutor would have to show, however, that you intended to disrupt government business and that your conduct actually did cause a disruption. Troublingly, the term "disorderly or disruptive conduct" is undefined.
• You cannot "knowingly" block the entrance or exit of one of these restricted zones. Again, however, the prosecutor would have to show that you did so with the intent to disrupt government business.
• Finally, you cannot "knowingly" engage in an act of physical violence against person or property in one of these restricted zones.

You'll notice that "knowingly" is in quotation marks above. This is one of the two major changes to existing law (the other is the extension of the statute to the White House and VP's residence). Previously, the law required someone to act "willfully and knowingly." This is the state of mind the government has to prove you had to establish your guilt (the "intent standard"). "Willfully and knowingly" means that you need to know you're committing a crime. "Knowingly" just means you need to be aware you're in a restricted zone, but not necessarily that it's unlawful.

(Incidentally, the punishment can be relatively severe. If you commit the offense with a weapon or if you cause injury (a felony), it can carry a maximum sentence of 10 years in prison and a fine of $250,000. Otherwise, the maximum is one year in prison and a fine of up to $100,000).

Also, lots of attention has been paid to the National Special Security Events, which include things like presidential inaugurations, nominating conventions and even large spectacles like the Super Bowl. The Department of Homeland Security has massive discretion (which in and of itself is a problem) to designate one of these events as an NSSE based on things like the expected number of attendees and the presence of dignitaries.