The Federal Restricted Buildings and Grounds Improvement Act of 2011

Andrew Napolitano condemns this recently enacted statute:

Last week, President Obama signed into law the Federal Restricted Buildings and Grounds Improvement Act of 2011. This law permits Secret Service agents to designate any place they wish as a place where free speech, association and petition of the government are prohibited. And it permits the Secret Service to make these determinations based on the content of speech.

Thus, federal agents whose work is to protect public officials and their friends may prohibit the speech and the gatherings of folks who disagree with those officials or permit the speech and the gatherings of those who would praise them, even though the First Amendment condemns content-based speech discrimination by the government. The new law also provides that anyone who gathers in a “restricted” area may be prosecuted. And because the statute does not require the government to prove intent, a person accidentally in a restricted area can be charged and prosecuted, as well….

This abominable legislation enjoyed overwhelming support from both political parties in Congress because the establishment loves power, fears dissent and hates inconvenience, and it doesn’t give a damn about the Constitution. It passed the Senate by unanimous consent, and only three members of the House voted against it. And the president signed it in secret. It is more typical of contemporary China than America. It is more George III than George Washington.

One can reasonably criticize the law, but this strikes me as rather excessive.

1. The law doesn’t seem to apply to “a person accidentally in a restricted area,” since it’s limited to people who act “knowingly.” In particular, the provision criminalizing “knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so” would likely be read as requiring knowledge that the building is restricted. (See, e.g., Liparota v. United States (1985).)

2. The law applies only to (A) the White House and its grounds and the Vice President’s official residence and its grounds, (B) buildings or grounds where the President or another person protected by the Secret Service is or will be visiting, and (C) buildings or grounds “restricted in conjunction with an event designated as a special event of national significance.” The first two categories are pretty narrow, and my sense is that giving the Secret Service the power to control who goes onto such buildings or grounds is necessary for them to effectively protect the people they are trying to protect.

The “special event of national significance” category is potentially broader, and I can certainly imagine how this might be abused. But I don’t think it really quite “permits Secret Service agents to designate any place they wish” as such an event. While I haven’t found any regulations or cases on the subject, I suspect that courts would read this as limited to a relatively narrow class of events, such as party conventions and the like.

3. What’s the basis for complaining that “the president signed [the bill] in secret”? There is no requirement that the President sign bills in a public ceremony, and to my knowledge there is no tradition of signing all bills — even slight ones such as this — publicly.

4. Also, as best I can tell the new law is a slight modification to the existing 18 U.S.C. § 1752. Indeed, the broadest provision in the law — the special event of national significance provision — was added to the statute in 2006. Now it may well be that the law was a bad idea even then, but it strikes me as worth noting that the law has been in place for six years, through two administrations, without (to my knowledge) a vast amount of abuse.

Now perhaps the reference to “special event of national significance” is too vague. Perhaps the phrase “restricted in conjunction with” such an event is too vague and too broad, because at least in theory it might allow the Secret Service to cordon off too wide a radius around the event. Perhaps there are ways to let the Secret Service do its job while that would still robustly protect speech in the place where the Secret Service is doing that job. Or perhaps there are problems with some of the other provisions of the law, such as the ban on “knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engag[ing] 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 function” (though I think that this language will likely be read as applicable only to conduct that is physically disruptive and not to conduct that disrupts because of its offensive content).

Still, the potential problems strike me as considerably less dramatic than Mr. Napolitano’s column suggests. This strikes me as a slight extension of a modest regulation that is hardly “abominable” or China-like. Thanks to Peter Jensen for the pointer.