Get ready for the protests. Get ready for the warm American spring — and maybe a hot summer and fall. Vast economic inequality has not disappeared and, in a presidential election year, the supremacy of money in politics will be extravagantly displayed.
But if you protest, also get ready for "free-speech zones," "pop-up" restricted areas, National Special Security Events, and — with the signing on March 8 by President Barack Obama of HR 347 — a suddenly sharper federal anti-protest law. Despite American constitutional rights to speak freely, to assemble, and to petition for redress of grievances, suppression of protest is just as American.
HR 347's title, the Federal Restricted Buildings and Grounds Improvement Act of 2011, suggests court-house landscaping, but its true impact cuts much deeper. Without debate, it flew through the Senate with unanimous consent. In the House, only three members voted against it, all Republican, most notably presidential candidate Ron Paul. The brief debate featured jokes about the Super Bowl.
But after its February passage, HR 347 caught the attention of lefty and libertarian bloggers. They saw it as the end of the right to protest and the beginning of outright fascism — with Occupy in its crosshairs. Their reaction reflects a political atmosphere in which the Obama administration is justifying assassinating American citizens without trial as a necessary part of the War on Terror.
The reality of HR 347 is more nuanced, say civil-liberties lawyers. Many months before Occupy Wall Street materialized, the bill had been introduced in Congress at the behest of the Secret Service, which protects the president, vice-president, and other dignitaries. And HR 347 doesn't make protest illegal. It just makes it riskier.
"Fairly histrionic," says Mara Verheyden-Hilliard, co-chair of the National Lawyers Guild Mass Defense Committee, of the blogs and e-mails she has seen on HR 347. Although she thinks "a significant crackdown" on dissent is taking place, a "crescendo of fear" is the last thing that should happen because of HR 347. "People should be in the streets."
What's important to know, Verheyden-Hilliard says, is that HR 347 only makes worse "a terrible law" — Section 1752 of Title 18 of the United States Code. It's been around since 1971 and was strengthened in 2006.
Section 1752 prohibits people from "restricted" areas around the president, vice-president, and anyone else protected by the Secret Service. These other protectees — including presidential candidates, former presidents, and foreign heads of state — are common protest targets. The law also can be used at "special" national events like presidential nominating conventions. Violators could get a year in jail, 10 years if a weapon is involved.
Gabe Rottman, a Washington attorney for the American Civil Liberties Union, says HR 347's most important provision makes it easier to prosecute protesters. Formerly, to be convicted of being in, or blocking the access to, a Secret Service–restricted area, or of engaging in "disorderly or disruptive conduct" inside or in "proximity" to a restricted area (or conspiring to do these things), the person had to do it "willfully and knowingly."
Now, it's only necessary to prove that the individual did it "knowingly" — that is, that the person knew she or he was in a restricted area, even if the person didn't know it was illegal to be there.
Although a spokesman for the Secret Service wouldn't comment to the Phoenix on the elimination of "willfully" in HR 347, he says the new law represents only "a technical change."
Protest Pens and National Special Security Events
How bad the amended Section 1752 is, of course, depends on how it's enforced. Occupy Boston activist-attorney Deborah Butler is struck by the "deliberately ambiguous" language in the law, which allows for "selective enforcement."
"Disrupt the orderly conduct of government business." Is being noisy disruptive, she asks? "Proximity." "Is that 15 feet or 50 feet? Or so close that we can hear you?" And conspiring to do something also can be very ambiguous.
These aren't academic questions. Butler recalls demonstrating at a New Hampshire Republican presidential primary debate in January when the 500 protesters — including a 12-piece marching band — were herded into a "protest pen" in a back parking lot far from the candidates.
In an Orwellian phrasing, the authorities call protest pens "free-speech zones," though they often are far from the news media as well as the objects of the protest. Butler calls them "unfree-speech zones of temporary incarceration."
Protest pens and restricted areas aren't only used where the Secret Service is present. Local police, using trespass or disorderly-conduct laws, commonly use them to restrict protests. And they can be instant and unadvertised, in which case they are known as "pop-up" restricted zones.
On October 1 in New York, 700 Occupy Wall Street marchers on the Brooklyn Bridge were herded into buses and taken to jail. Many said they had been led onto the roadway by the police and then arrested. Verheyden-Hilliard, who is legal director of the Partnership for Civil Justice Fund in Washington, is suing the city on their behalf. Nationally, more than 6700 people have been arrested in Occupy actions since last September.
The big protest targets this year — like the Group of Eight (G-8) and NATO meetings and the presidential conventions — are likely to see the greatest use of protest pens and pop-up restricted areas. Such big events are usually designated National Special Security Events (NSSEs) by the Secretary of Homeland Security, the Secret Service's boss.
The ACLU's Rottman says Homeland Security has huge discretion in designating NSSEs. And the restrictions of the newly revised Section 1752 anti-protest law apply to these events regardless of whether a Secret Service–protected dignitary is present. In fact, every Super Bowl since 9/11 has been declared an NSSE.
Here come the people
As the weather warms up, big and small protests — not just Occupy re-encampments — are being planned and already are taking place. Occupy Boston has called for a "national day of action" on April 4 to support public transportation. Occupy Providence recently demonstrated for a financial transactions tax. Occupy Augusta protested outside the offices of Maine's most prominent corporate lobbyists.
Nationally, Occupy Chicago is celebrating after forcing the May 18-19 G-8 summit to be abruptly switched to Camp David, the president's wooded Maryland retreat, in order to minimize the protests. But Chicago's May 20-21 NATO meeting still gives activists a big bull's-eye.
In what could herald a dramatic turn toward radical action within the progressive mainstream, moveon.org and the 99% Spring coalition of more than 50 groups, including big unions like the United Auto Workers, have announced they will train 100,000 people in direct action and nonviolent civil disobedience.
Training sessions will take place at 550 locations around the country beginning April 9. The coalition's first big protests will be on Tax Day, April 15.
Occupy provided the inspiration. Jeff Hauser, a spokesman in Washington for the AFL-CIO, a 99% Spring coalition member, says the labor movement has been "extraordinarily impressed by Occupy." John Cavanagh, director of Washington's Institute for Policy Studies, says of 99% Spring, "We're building a new infrastructure of the progressive movement."
Potentially, 2012's biggest protest targets are the national presidential nominating conventions — August 27-30, in Tampa, Florida, for the Republicans; September 3-6, in Charlotte, North Carolina, for the Democrats. Congress has appropriated $50 million for security for each convention.