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Little 'Tweak,' Big Chill: How Feds Isolate Free Speech

March 29, 2012 - 6:00pm

A bipartisan "tweak" in a citizen-protest law is eliciting squawks from activists on the right and the left who call it one more way for politicians to distance themselves from the public.

The "Federal Restricted Buildings and Grounds Improvement Act" has a Florida connection. House Resolution 347's sponsor was Rep. Tom Rooney, R-Tequesta, and its co-sponsor was Rep. Ted Deutch, D-Boca Raton.

Passed by the House on a 399-3 vote this month, the measure was quickly signed by President Obama.

Rooney spokesman Michael Mahaffey describes HR 347 as "a small technical correction to existing law."

"It did one thing -- transfer arresting authority from [the Washington, D.C., Police Department] to Secret Service when someone jumps the fence at the White House or the Naval Observatory.

"It does not affect anyone's right to protest anywhere, any time in any way. Any claim that it does anything else is blatantly false," Mahaffey said.

But critics say the one-page bill adds yet another bureaucratic layer of federal power to a statute (Section 1752 of Title 18 of the U.S. Code) that has been steadily bulking up security since the 1970s.

"This bill typifies a growing trend in Washington, where our rulers are codifying their desires at the expense of our rights. That 'balance' is nothing more than code for erosion of our natural rights," said Andrew Nappi of the Florida Tenth Amendment Center.

Indeed, civil-rights advocates say Section 1752 is entirely UNnatural in establishing amorphous "exclusion zones" where demonstrators can be rousted or arrested.

"Exclusion zones 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," write Dahlia Lithwick and Raymond Vasvari at

Under Section 1752, which HR 347 implicitly affirmed and explicitly adorned with its window-dressing, "the types of events and individuals warranting Secret Service protection have grown exponentially since the law was enacted in 1971," say Lithwick and Vasvari, a First Amendment lawyer.

"Today, any occasion that is officially defined as a National Special Security Event calls for Secret Service protection. NSSEs 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."

While the law technically does not quash First Amendment rights, it does give authorities the tools to remove people who exercise them in places deemed inappropriate by the government.

"Its a perfect circle: The people who believe they are important enough to warrant protest can now shield themselves from protesters," Lithwick and Vasvari argue.

To show how times have changed, the legal-affairs writers point to the case of Brett Bursey.

The 50-year-old brought an anti-war sign to a George W. Bush rally at a Columbia, S.C., airport in October 2002. Police and Secret Service agents told Bursey to move 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.

Bursey figured hed get the same result in 2002. The state trespass charges against him were again tossed, based on 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.

What upsets anti-war protesters should concern conservative activists like tea party groups, as well. If government can haul off Occupy Wall Street rabble, it can just as easily crack down on tea party rallies, too.

Anna Trujillo, a Republican running against Deutch, decried what she calls the creation of "no free-speech zones."

"It's ridiculous to be taking away our rights to free speech in the public square. The Secret Service shouldn't have the power to repress speech as long as it is a peaceful demonstration," said Trujillo, who added that she is "not a libertarian."

The only dissenting votes against the Rooney-Deutch "tweak" of Section 1752 came from three tea party-backed Republicans -- Reps. Ron Paul of Texas, Paul Broun of Georgia and Justin Amash of Michigan.

Amash has no problem with HR 347 tweaking out the D.C. police, but he cites a subtle, yet significant, change in verbiage. Amash writes:

"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."

Rooney, in a letter to concerned constituents, emphasized the narrow scope of his HR 347 and then broadened his defense.

"Since when did the Secret Service become the bad guys in this country? They swear to uphold the and defend the Constitution of the United States just as I did when I wore the uniform of the U.S. Army. ... I don't see them as the enemy. Do you?"

Die-hard skeptics say Rooney is missing -- or at least fuzzing -- the Big Picture (title of the Army's 1950s TV series that touted its exploits).

"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," Lithwick and Vasvari contend.

"Thats why the teeny cosmetic changes to Section 1752, which purport to be about new kinds of security, are really all about optics."

Contact Kenric Ward at or at (772) 801-5341.

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