Criminalizing
Free Speech: Is This What Democracy Looks Like?
March 2012
By John W. Whitehead
“Congress
shall make no law … 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.”—First Amendment to the U.S.
Constitution
One
of the key ingredients in a democracy is the right to
freely speak our minds to those who represent us. In
fact, it is one of the few effective tools we have left
to combat government corruption and demand
accountability. But now, even that right is being
chipped away by statutes and court rulings which weaken
our ability to speak freely. Activities which were once
considered a major component of democratic life in
America are now being criminalized. Making matters
worse, politicians have gone to great lengths in recent
years to evade their contractual, constitutional duty to
make themselves available to us and hear our grievances.
That is what representative government is all about.
Unfortunately,
with gas prices rising, the economy tanking, the
increasingly unpopular war effort dragging on and public
approval of Congress at an all-time low, members of
Congress have been working hard to keep their unhappy
constituents at a distance—avoiding town-hall meetings,
making minimal public appearances while at home in their
districts, only appearing at events in controlled
settings where they’re the only ones talking, and if
they must interact with constituents, doing so via
telephone town meetings or impromptu visits to local
businesses where the chances of being accosted by angry
voters are greatly minimized. Consider that in the
summer of 2011, 60 percent of Congress refused to hold
town hall meetings with their constituents during their
summer break. The ones who did often charged a fee for
attendance. For example, Rep. Paul Ryan charged fifteen
dollars per person for his public appearance, and Rep.
Dan Quayle charged 35 dollars per person.
Now,
in a self-serving move aimed more at insulating
government officials from discontent voters than
protecting their hides, Congress has overwhelmingly
approved legislation that will keep the public not just
at arms’ length distance but a football field away by
making it a federal crime to protest or assemble in the
vicinity of protected government officials. The Trespass
Bill (the Federal Restricted Buildings and Grounds
Improvement Act of 2011) creates a roving “bubble” zone
or perimeter around select government officials and
dignitaries (anyone protected by the Secret Service), as
well as any building or grounds “restricted in
conjunction with an event designated as a special event
of national significance.”
The
bill’s language is so overly broad as to put an end to
free speech, political protest and the right to
peaceably assemble in all areas where government
officials happen to be present. Rep. Justin Amash (R-MI)
was one of only three members of the House of
Representatives to vote against the legislation. As he
explains:
Current
law makes it illegal to enter or remain in an area
where certain government officials (more particularly,
those with Secret Service protection) will be visiting
temporarily if and only if the person knows it's
illegal to enter the restricted area but does so
anyway. The bill expands current law to make it a
crime to enter or remain in an area where an official
is visiting even if the person does not know it's
illegal to be in that area and has no reason to
suspect it's illegal.
Some
government officials may need extraordinary protection
to ensure their safety. But criminalizing legitimate
First Amendment activity—even if that activity is
annoying to those government officials—violates our
rights. I voted "no." It passed 388-3.
Specifically,
the bill, which now awaits President Obama’s signature,
levies a fine and up to a year in prison against anyone
found in violation, and if the person violating the
statute is carrying a “dangerous weapon,” the prison
sentence is bumped up to no more than ten years. Thus, a
person eating in a diner while a presidential candidate
is trying to score political points with the locals
could be arrested if government agents determine that he
is acting “disorderly.”
Mind you, depending on who’s
making the assessment, anything can be considered
disorderly, including someone exercising his right to
free speech by muttering to himself about a government
official. And if that person happens to have a
pocketknife or nail clippers in his possession (or any
other innocuous item that could be interpreted by the
police as “dangerous”), he could face up to ten years in
prison.
Given
that the Secret Service not only protects the president
but all past sitting presidents, members of Congress,
foreign dignitaries, presidential candidates, and anyone
whom the president determines needs protection, anywhere
these officials happen to be becomes a zone where the
First Amendment is effectively off-limits. The Secret
Service is also in charge of securing National Special
Security Events, which include events such as the G8 and
NATO summits, the National Conventions of both major
parties, and even the Super Bowl. Simply walking by one
of these events places one in a zone of criminal
trespass and thus makes him subject to arrest.
While
the Trespass Bill may have started out with the best of
intentions (it was one of many knee-jerk pieces of
legislation introduced by members of Congress in the
wake of the Gabrielle Giffords shooting in January
2011), it has ended up as the government’s declaration
of zero tolerance for individuals exercising their First
Amendment rights. Moreover, short of government
officials patting down or body scanning every individual
within proximity of a government official, this law is
practically unenforceable. It’s doubtful this will even
do much to deter determined psychopaths, who have a way
of getting past the most determined barriers. What it
will do, however, is keep law enforcement officials
occupied with people who pose no threats whatsoever and
distracted from the real threats.
It’s
safe to say that what happened to Steven Howards will,
under this law, become a common occurrence. Howards was
at a Colorado shopping mall with his son in June 2006
when he learned that then-Vice President Dick Cheney and
his Secret Service security detail were at the mall
greeting the public. A Secret Service agent overheard
Howards telling someone that he was going to approach
Cheney, express his opposition to the war in Iraq, and
ask him “how many kids he’s killed today.” Howards
eventually approached Cheney and shared his view that
Cheney’s policies in Iraq “are disgusting.”
When Cheney
turned and began to walk away, Howards brushed the Vice
President’s shoulder with his hand. The Secret Service
subsequently arrested and jailed Howards, charging him
with assaulting the Vice President. The assault charges
were later dropped. However, the U.S. Supreme Court has
now agreed to hear Howards’ case on whether or not his
right to free speech was extinguished.
The
United States has historically stood for unfettered free
speech, which is vital to a functioning democracy.
Unfortunately, the tendency on the part of government
and law enforcement officials to purge dissent has
largely undermined the First Amendment’s safeguards for
political free speech. The authoritarian mindset
undergirding these roving bubble zones is no different
from that which gave rise to “free speech zones,” which
are government-sanctioned areas located far away from
government officials, into which activists and citizens
are herded at political rallies and events. Both zones,
however, have the same end result: dissent is muted or
silenced altogether, and the centers of power are
shielded from the citizen.
Free
speech zones have become commonplace at political
rallies and the national conventions of both major
political parties. One of the most infamous free speech
zones was erected at the 2004 Democratic National
Convention in Boston. Not so much a zone of free
expression as a cage, it was a space enclosed by chain
link fences, Jersey walls, and razor wire. Judge Douglas
Woodlock, who toured the free speech cage before the
convention, noted, “One cannot conceive of other
elements put in place to make a space more of an affront
to the idea of free expression than the designated
demonstration zone.”
Bubble
zones and free speech zones, in essence, destroy the
very purpose of the First Amendment, which assures us of
the right to peaceably assemble and petition the
government for a redress of grievances. In other words,
we, as citizens, have a constitutional right to address
our government officials in a public manner so that they
can hear our grievances or concerns. What these zones
do, however, is create insulated barriers around public
officials, thus keeping us out of sight and sound’s
reach of those who are supposed to represent us. Many
prominent activists, from Occupiers, to the Tea Party,
from anti-war protestors and so on, will be shut out
from the view of public officials under this
legislation. These zones also serve a secondary purpose,
which is to chill free speech by intimidating citizens
into remaining silent.
Consider
this: if these types of laws had been in effect during
the Civil Rights movement, there would have been no
March on Washington. Martin Luther King Jr. and his
fellow activists would have been rendered criminals. And
King’s call for “militant nonviolent resistance” would
have been silenced by police in riot gear.
WC:
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