Tuesday, December 13, 2005

Free speech 'zones' shrinking

Long time activist and uberfriend, Ben Masel checks in with an analysis of the "new" Patriot Act and finds a disturbing section. I'm just going to post his email verbatim.

Section 602 of the Conference Committee's version of Patriot Act makes holding an un-authorised sign at a Democratic or Republican National Convention, a Presidential or VP appearance, and any other event designated by the Secret Service as a "national special security event" a felony punishable by a year imprisonment.

A not farfetched interpretation would have made felons of the entire Wisconsin Delegation to the 1968 Democratic Convention, when Mayor Daley ruled them out of order for moving to adjourn the Convention and reconvene outside Daley's bailiwick.

Section 603 makes a seperate offence of entering the Convention with forged credentials, possessing such, or even perhaps the time-honored tradition of sharing ones' entry pass to a friend.

Full text of the pending PATRIOT ACT renewal, including the "Joint Explanatory Statement" from the GOPers on the Conference Committee.
Un-authorised signs? Still think you can call us a free country?
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15 Comments:

Blogger Bostonian Exile said...

Unless I'm missing something more from Mr. Masel's full e-mail (and I may well be), I have to respectfully disagree with his conclusion as to section 602.

As I read the section, very little of the pre-existing law is changed. While it does add "special event[s] of national siginificance" (e.g., conventions, the Super Bowl, etc.) to the list of potential restricted zones, that is not the end of the inquiry.

First, a person must enter such a restricted zone "in violation of the regulations governing ingress or egress thereto . . . ." So, it's still not much of a danger to someone with the correct passes (such as a convention delegate).

Second, not only does someone have to enter the secured area "illegally", if you will, but that person must do so knowingly, willingly, and 1) with the intent to disrupt; or 2) actually disrupt; or 3) engage in an act of physical violence against a person or property. Some very minor tweaking of language aside, the description of the criminalized physical act is not changed in any material way in this bill.

But, assuming that the elements of the crime have been met thus far, this bill does increase the penalties. This is the most drastic change: a ten year prison term for crimes of violence or carrying a dangerous weapon or firearm (where there was no violent crime provision before) and an increase in all other violations from a six month term to that of one year. Again, though, the demonstrators ala the 1968 Wisconsin convention would be safe (thanks to their convention IDs) as would any protesters outside (who, by staying outside of the secured area are not liable under this law -- the old version or the new one).

I didn't get to Section 603... Section 602 took quite long enough on its own and struck me as the section with the greater potential impact.

If you have MS Word, I'd be happy to send you the document I made tracking the changes between the old law (last amended in 1984) and the new one. It makes deciphering the conference report much easier.

9:20:00 PM  
Blogger Kevin said...

So, in other words, someone has to break two or three other laws before they can be accused of breaking the unconstitutional law restricting what can be printed on a sign.
Why is this law necessary?

It reminds me of the bill co-sponsored by Senator Clinton which makes it illegal to burn somebody elses flag. Isn't it already illegal to burn something belonging to somebody else?

11:36:00 PM  
Blogger Bostonian Exile said...

So, in other words, someone has to break two or three other laws before they can be accused of breaking the unconstitutional law restricting what can be printed on a sign.
Why is this law necessary?


See, that's why I'm a little confused. I mean, I used the signage as the example, but I have a hard time seeing how the simple act of holding a sign would be criminalized under this bill, whether the new version or the old one; by the way I read it, you would have to create a bigger disturbance than that. Instead, the bill seems to do what it is billed as doing: maintain security within the perimeter of "special events of national significance". And even at that, it almost seems as though you would really have to want to break this law to actually do it, given all the elements that would have to be proven.

6:29:00 AM  
Anonymous Libby said...

Exile you know I respect your opinion but in an administration that considers the wearing of a t-shirt at a public rally a criminal and disruptive act, it's not much of a stretch to imagine them jailing dissenters for even flimsier grounds. It's not even the minor changes here so much as the White House relentlessly chipping away at our civil rights.

It used to be all of America was a free speech zone, which is what the founders intended. The free speech zones as they are currently employed under the guise of "security" should be declared unconstitutional IMO.

Maybe you had to live through the Nixon years to take this sort of thing seriously. All I know for sure is, although I don't know him personally, I know of his work and if Ben is concerned - we have to cause to worry.

The way I see it, the purpose of civil dissent is to peacefully disrupt the status quo. I don't think they make the distinction between violent anarchists and peaceful dissenters as was clearly evidenced in the rounding up of some what was it, 2,000 protestors in NYC during the RNC. Some of them weren't even protesting, they were passersby at the wrong place at the wrong time.

It's all part of a very disturbing pattern

9:24:00 AM  
Blogger Bostonian Exile said...

Maybe you had to live through the Nixon years to take this sort of thing seriously.

I was going to let this topic drop, but this sentence tweaked me a certain way. In case you missed the other half of that equation, all I've ever known was a presumptive distrust of the government. It is true that, unlike you, the way I view our government as an institution was never shattered; instead, it crystallized according to the post-Nixon reality. I may be young, Libby, but I am far from naive.

All I know for sure is, although I don't know him personally, I know of his work and if Ben is concerned - we have to cause to worry.

I've spent part of this morning searching for Mr. Masel's other writings. I have to say, as ardent as Mr. Masel is, the fact that a self-described "Green Libertarian" is opposed to this (or any) provision of the PATRIOT Act is hardly surprising. I'm going to need more than that, hence the reason for my original question (which, from my outside reading, I see is answered: I apparently had all of the information from him and was not missing anything).

Now, I appreciate your concerns, but the scenarios you raise are inapplicable under the statute unless the "protester" first illegally breaks into the perimiter of the designated space. That's the crucial part of this law, more so than the activity once the person gets inside.

You still have every right to protest the President, but I don't believe that you ever expected to have the right to stage a sit-in on the White House lawn. Moreover, you can protest outside of the next RNC all you want, but I don't believe you have ever had the right to "crash my party" (no pun intended) because that would allow you to make your point better.

Besides, not to be glib, but even if I grant you that there might be a chance of prosecutorial misfeasance under this law - old or new, I thought part of civil disobedience was the willingness to go to jail to highlight the protested injustice. I doubt Gandhi, Mandela, and MLK would have received nearly as much attention (and support) if they had backed down when faced with incarceration. Mind you, I'm not by any stretch justifying political incarceration, but it stikes me that when it comes to civil disobedience, the penal consequences are the accepted cost of doing business, if not a badge of honor for some.

So, there it is. If you can construct a scenario via Section 602 under which someone can truly be deprived in some grand new way of the speech rights that they exercise unfettered under the old law, I'm happy to hear it. In fact, I'll join your ranks on this one if you or anyone else can convince me. You are familiar with my past views on speech rights, and this instance should be no different, so you can be confident that my offer is completely open.

However, for now, I just don't see it. Rather, I suggest - as a friend - that this objection is an unwitting red herring and that your efforts against the PATRIOT Act, though I may disagree with many of them, are better directed at other sections.

11:19:00 AM  
Blogger Kevin said...

Bostonian, if your assertion is correct, that someone would need to violate several existing laws restricting access to certain areas in order to be charged with this additional crime, then why is the administration so adamant about keeping these provisions?

Also, even if your assertions are true, wouldn't section 602 still be unconstitutional?

1:24:00 PM  
Blogger porchwise said...

Except for the violence factor, the pre-existing law also sucked. I was bopped at a rally once by an over-exuberant cop just for using the old finger sign. I think impoitic is right, free speech zones are shrinking.

1:28:00 PM  
Blogger Bostonian Exile said...

Bostonian, if your assertion is correct, that someone would need to violate several existing laws restricting access to certain areas in order to be charged with this additional crime, then why is the administration so adamant about keeping these provisions?

If there are any other laws broken, they are likely to be state laws for trespass, unauthorized entry, or perhaps breaking and entering. This makes the act a federal crime (and avoids double jeopardy because the state and federal government are seperate sovereigns). This becomes important later. When I referred to "illegal" entry earlier, I was referring specifically to violating the regulations that the Secret Service sets for each event it secures. Now, it is absolutely possible that such underlying regulations could be unconstitutional (and that is absolutely a reason for continued vigilance), but that is true of every regulation every time Congress delegates to the executive branch decisionmaking outside of its legislative expertise (indeed, it's a big reason why the Federal Register is tens of thousands of pages long).

As for why the administration wants these provisions, I suspect the rationale (ostensibly, anyway) is that as long as the Secret Service is securing these special events, then the commission (or attempt, or conspiracy to commit) of violent crimes should probably be a federal crime as well. I think the "disruption" issue is probably secondary as evidenced by the addition of the words "knowingly" and "willingly" to that part of the statute; the prosecutor now has to prove that the defendant has a higher level of criminal intent than is presently required. A spontaneous protest (such as that of the 1968 Wisconsin delegation) would be protected. If this was really about stifling dissent, the administration would probably not want to make prosecutors' jobs at doing so any more difficult. It may not sound like much, but it's a distinction like this one that would get the now-renowned Lions fan off the hook if he had his sign at the Super Bowl.

Also, even if your assertions are true, wouldn't section 602 still be unconstitutional?

In addition to the caveats above about underlying regulations, I don't think so. The (painfully) short version of the on-the-fly analysis goes something like this: the regulated areas are probably generally not going to be traditional public forums under First Amendment jurisprudence (so greater regulation is permitted), the statute is content- and viewpoint-neutral on its face, and the regulated conduct (the "disruption" or "violent crime") is generally not going to fall within the ambit of protected speech. There is a possibility of an "as applied" challenge down the road, but that would depend by its very nature upon the underlying regulations. Again, if it were really about something as simple as the singular act of holding a sign, you'd probably be onto something. But it takes a lot more than that to violate this law.

2:21:00 PM  
Anonymous Libby said...

But it takes a lot more than that to violate this law.

I'm on tyke duty so I don't have time to really answer all Exile's points at the moment but I might remind you that several people have been arrested and at I can think of at least one guy who was prosecuted under some obscure federal statute for carrying a relatively innoucous sign on a public street.

The trouble is, while it may take a lot to get a conviction, this administration has proven time and time again, they are willing to pull out all the stops and spend buckets of our tax dollars trying to do exactly that. They're quick to arrest for the most minor instances of public dissent. It's small comfort to the defendant who was wrongfully arrested to prevail after spending years in court and thousands in legal fees to defend themselves.

All I have time to say right now, and I say it with the greatest of respect and affection Exile - Stop thinking like a lawyer and use some common sense here. Can't you see you're excusing the destruction of free speech on the basis of legal minutia? My God, that's what the White House is relying on to excuse torture as well. I don't understand how you can defend this.

3:41:00 PM  
Anonymous Libby said...

And I would add to Kevin's query, what the hell does this have to do with terrorism and national security? Why is it in the Patriot Act which is supposed to have expanded all these powers in order to "fight terrorism".

3:43:00 PM  
Blogger Bostonian Exile said...

I'm on tyke duty so I don't have time to really answer all Exile's points...

That's understandable; we can set this aside until a more convenient time. And for what it's worth, I'm not feeling so hot today, so I do apologize for any excessive stridency.

Now, you know I can't stop thinking like a lawyer anymore than you can stop thinking like a grandmother or an activist or anything else you might self-identify as. That said, we may have strayed from the original point. Fair enough.

My fundamental point, though, is unchanged. You posted this opinion on Section 602, which held that a parade of horribles would follow its passage. I responded that I strongly disagreed with this analysis because it disregarded a crucial part of both the present law and Section 602 and because Section 602 does not materially change present law. You disagreed, citing past actions of the Bush Administration. I posed the question and I pose it again now:

Assume that Section 602 goes into effect at midnight tonight. What are you lawfully allowed to do today that you are prohibited from doing tomorrow? If you have no answer, then (it seems to me, anyway) your grievance is not with Section 602, but with concerns about how this administration might use it or any other law, a condition which we have, can, and will debate probably for as long as we know each other.

But, also, if there is no answer to my question, then Mr. Masel's predictions about Section 602 are incorrect.

Maybe I am looking at this like a lawyer -- I can't help that -- but, especially after you charge me with "excusing the destruction of free speech on the basis of legal minutiae," I have every right to ask exactly what free speech rights you now possess but stand to lose on the basis of this legislation.

BTW - As to the second point, the tie to terrorism is that events like the Super Bowl are massive bulls-eyes for terrorists. This bill gives the FBI and others a hook to investigate plots against these events with special security designations. As much as I hate to reference Tom Clancy, his novels The Sum of All Fears and Rainbow Six, both written before 9/11, outline scenarios in which terrorists use nuclear and biological weapons against the Super Bowl and the Olympics, respectively. (If it sounds terribly far-fetched, he also wrote a scenario eerily similar to 9/11 several years before the real tragedy and, in any event, it's just for illustrative purposes.)

5:45:00 PM  
Blogger Bostonian Exile said...

I might remind you that several people have been arrested and at I can think of at least one guy who was prosecuted under some obscure federal statute for carrying a relatively innoucous sign on a public street.

I'm sorry. I didn't mean to disregard this point. I can't say that I am familiar with the details here, so if you have links to these accounts of these incidents, I'll gladly look at them.

5:58:00 PM  
Anonymous Libby said...

What are you lawfully allowed to do today that you are prohibited from doing tomorrow? If you have no answer, then (it seems to me, anyway) your grievance is not with Section 602, but with concerns about how this administration might use it or any other law, a condition which we have, can, and will debate probably for as long as we know each other.

I'm not feeling so hot myself all of sudden and I have to admit I haven't even had time or energy to read the Section so I'd have to answer, I don't know. And most certainly my bigger problem is with how the administration intends to use it, which remains to be seen.

All I know for sure is they wouldn't have snuck it in unless they had a use for it and I fail to see how it addresses terrorism. As far as I can see, the whole damn Patriot Act is useless in terms of terror and has been employed as back door to shut down dissent and prosecute ordinary crimes, mainly drug offenses.

They used it in the sneak an peak when they busted the marijuana tunnel from Canada and I see in comments at Detroit and I think Mikevotes left me a link at LOS, that another provision tucked into this "terror prevention" cure has to do with meth labs.

Sorry, but these meth labs they're busting are small time operations run by American citizens who happen to be addicts - they're not terrorists.

And I assume you saw the article in the last couple of days that shows the FBI is opening up "terrorist investigations" against peaceful anti-war groups.

Forgive me if I seem snappish Exile, but perhaps it's part of my greater frustration in not being able to win you over to my side. We need you to help fight these people and it drives me crazy that you're using your talent and your intelligence to excuse them instead.

In any event, perhaps we've reached the stage where we agree to disagree. Whatever the fine legal points are, as a practical matter, I see by the headlines on my homepage that the House just passed the bloody thing anyway making the debate somewhat moot.

How they will use it I'm afraid, will become all too depressingly apparent in time.

7:06:00 PM  
Blogger Bostonian Exile said...

In any event, perhaps we've reached the stage where we agree to disagree. Whatever the fine legal points are, as a practical matter, I see by the headlines on my homepage that the House just passed the bloody thing anyway making the debate somewhat moot.

I think we are, too. And it is probably moot, but perhaps not. For what it's worth, it looks like Russ Feingold is ready for a fight in the Senate. He's threatened to filibuster and, while I don't know if he has the numbers to do it, it will be close.

If he does, though, look out! Never mind the principle -- I'm pretty sure he wants to be president, and this is the kind of thing that would bolster the grassroots over on your side. If he's smart about this, he becomes a remarkably strong dark horse candidate overnight.

I don't know how it will turn out, and I'm not about to start laying money on it. Not on this one.

And, for what it's worth, the Lady Exile knows your frustration better than anyone. She sends her sympathies.

7:29:00 PM  
Anonymous Libby said...

And, for what it's worth, the Lady Exile knows your frustration better than anyone. She sends her sympathies.

It's worth much more than you think. ;-D

9:00:00 PM  

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