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Hurting your Cause by Getting the Facts Wrong

August 15, 2013

I’m going to tell a little secret.  Sometimes bloggers get it wrong, really, horribly wrong.  However, especially if they’re on your side, there’s a temptation to give them a pass.

That’s a bad thing, because it makes your entire position weak, and if you want to convince people to take you, and your position, seriously, you need to be certain your arguments are in order, and that includes vetting any sources.

And Exhibit A is the Huffington Post’s  Anti-Protest Law Passes Nearly Unanimously And Is Signed By The President.    It’s an example of the sort of rant that normally you expect from a high school student who hasn’t even bothered to look at the law in question.

Essentially, the article is about the modification of the laws  controlling access to various government facilities and functions. It is also, according to the author, likely the beginning of the end for our ability to protest, with police officers demanding “papers, please!” probably in some bad German Accent.  In fact, among the other outrages, the article claims that we will be unable to…

 

1) Marching outside the Democratic or Republican National Conventions

2) Yelling “C**k-face corporate whore” outside a barber shop where Mitt Romney is getting his ear hair trimmed.

3) Marching in front of the entrance of the New York Stock Exchange

4) Sprinkling magic homosexual glitter on Rick Santorum, or even anyone near Rick Santorum, or even just making fun of his stupid sweater vest!

5) Going to the gates of the White House and demanding the President read the Constitution. …You know, if he gets a chance.

 

Sounds pretty bad.  Terrifying, even.

But what does the actual bill say?

Well first of all, the actual felony aspects of the bill require the following:

 

‘‘(b) The punishment for a violation of subsection (a) is—
‘‘(1) a fine under this title or imprisonment for not more
than 10 years, or both, if—
‘‘(A) the person, during and in relation to the offense,
uses or carries a deadly or dangerous weapon or firearm;
or
‘‘(B) the offense results in significant bodily injury as
defined by section 2118(e)(3)

In other words, to trigger a felony charge from this, you have to have a deadly weapon, or inflict significant bodily injury, and the idea that people should be discouraged from registering their political disagreement with a shotgun is not exactly a radical departure from the traditions of modern law.

Without that component, we’re talking a misdemeanor charge, which while not pleasant, is certainly not up to gulag levels.

So, now, on to the fear that you will no longer be able to gather in front of the  White House to present your petitions without having the Presidential Guard disperse you.  The Bill covers the following areas:

‘‘(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
‘‘(2) the term ‘other person protected by the Secret Service’
means any person whom the United States Secret Service is
authorized to protect under section 3056 of this title or by
Presidential memorandum, when such person has not declined
such protection.’’.

See the bolded part?  you’re not going to be walking along an empty street and suddenly, like Jason, a Secret Service agent is going to leap out and scream GOTCHA!  In fact, most cities wish that a function would be so lacking in publicity. It’s more likely that in trying to get to the protest you’ll be cursing the traffic jams created by the roadblocks for the Presidential visit while the cops in front of you are screaming at a delivery driver who didn’t get the memo and is currently blocking traffic.

In fact, the clear reading of the clause makes it clear that some form of notification must be given about the restricted area. The other clauses provide fairly limited definitions– nobody is going to set up a federal event just to grab a OWS protestor– there are better ways to do that.

But what about the ability to arrest protestors? Isn’t this proof that this is in fact an EVIL CONSPIRACY?

Let’s take a look:

‘‘(a) Whoever—
‘‘(1) knowingly enters or remains in any restricted building
or grounds without lawful authority to do so;

In most places, this is called trespass.  A public building doesn’t give you the right to stay in when the management tells you to leave.  So in this case, this law is simply repeating a lot of other laws that are commonly used against both protestors and other individuals.

‘‘(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;

Okay, this requires two things– you’re knowingly doing it, which is a pretty easy bar, especially in the case of a demonstration, but it sort of eliminates the idea that someone can whisper “I don’t think the government is doing the right thing” and suddenly the Secret Service will cart her off. It means that you are actively trying to make it impossible for the function to continue. Think someone standing up and trying to shout down the speaker or turning off the lights, and other such stunts.  Again, in most places there are laws against this, and if you try it in a court, you’ll be introduced to a nice thing called “A pissed off judge.”

But what about demonstrating outside?  Well, the thing is, does that really impede or disrupt the orderly conduct of Government business?  Remember here the vast majority of judges, if it gets to a court (or jury if it’s a jury trial) will be looking for a standard that you were both trying (remember “knowingly, and with intent”) and actually were successful in disrupting business. For most government building’s people demonstrating outside isn’t disrupting business, it’s Tuesday.  To trigger this, you’ve got to do something more, something that really does make it hard to conduct business.

‘‘(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or

Now this gets a bit more common– passive resistance such as blocking egress has been a very common tactic– but so has trying people for doing it. Again, this has the twin requirements that it must be knowingly and with intent.  So you have to be trying to block egress and aware that it isn’t permitted– in most cases due to posted signs or more likely an announcement.

‘‘(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds;

I really don’t think this needs elaboration.  Politics by bombs is not a goal to aspire to.

So what we have isn’t the creation of the Fourth Reich, but a law that really doesn’t extend governmental power all that far.   So, let’s look at our HuffPo writer’s suggested actions:

1) Marching outside the Democratic or Republican National Conventions

Not covered. Not unless they were knowingly trying to obstruct access. But while marching might fall afoul of other laws regarding permissible places for demonstrations (and those are far more worrisome than this law), this would clearly not be covered by the law under debate.

2) Yelling “C**k-face corporate whore” outside a barber shop where Mitt Romney is getting his ear hair trimmed.

Again, not covered. Words, especially directed against political figures have a very high standard of protection, and there is no intent or ability to interfere with him.

3) Marching in front of the entrance of the New York Stock Exchange

The New York Stock Exchange isn’t covered by this act, not unless the President or another protected figure is there. You’ll be dealing with the NYPD which has no need of a federal statute to harass protestors.

4) Sprinkling magic homosexual glitter on Rick Santorum, or even anyone near Rick Santorum, or even just making fun of his stupid sweater vest!

Physical contact, even for political reasons, generally isn’t accepted–  more importantly,  a man charging up to sprinkle “magic homosexual glitter” on Santorum might just as easily intend to use “magic .45 bullets”.  This is a clearly justified exercise of the Service’s mandate.  As for making fun of his sweater vest, if that’s the best you can come up with when talking about Santorum, neither politics nor comedy are for you.

5) Going to the gates of the White House and demanding the President read the Constitution. …You know, if he gets a chance.

Potentially actionable if the protestors actually tried to block access to the White House.  But again, traveling to the white house to present the copy of a constitution is for you, a once in a lifetime chance to stick it to the man– for the President and the Secret Services, it’s Tuesday.

So why should we care?  Well most importantly, this is what is called an “own goal.” If you are concerned about increasing government overreach on speech, and there are very, very good reasons to be concerned, you should get your facts right and avoid writing something that would get a 7th grade student a note saying: “Did you read your book?  See me after class.”  There are many areas where you can criticize the government, but running about publishing poorly researched screeds doesn’t do it. It causes everyone to raise their eyebrows, sigh and say: “Oh, you again,”  You’ll get the boy who cried wolf effect, which isn’t something anyone worried about the dangers of  governmental overreach should be aspiring to.  Granted this article is a bit too late to retract, since it was written in 2012, but it’s an important warning– sounding like a hysterical end of the world fanatic is not conducive to other people taking you seriously.

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