A Willful Misunderstanding of the Anti-Protest Law

By Russell Smith

Earlier this month President Obama signed H.R. 347 into law despite vigorous opposition from free speech activists. This “anti-Protest” law threatens serious punishment (up to one year in federal prison) for those who – in the police’s determination – cross the blurry line between peaceful protest and disorderly conduct in or around areas closed off by the Secret Service.

And where do activists typically want to protest? As close as possible to important policymakers like the President, Vice President, presidential candidates and foreign heads of state – all of whom are entitled to Secret Service protection under federal law.

These restrictions are not new. H.R. 347 amends an existing federal law that made it a crime to “willfully and knowingly” enter, block or be disorderly in or around public areas which have been closed off by the Secret Service. H.R. 347 removed the word “willfully,” so that demonstrators need to only “knowingly” violate the law.

The media and politicians alike were quick to point out what a difference the deletion of a single word makes. The Wall Street Journal Law Blog specifically noted the “difference one word can make.” Meanwhile, Rep. Justin Amash (R-Michigan) wrote on his Facebook wall that removing “willfully” made protesting a crime “even if the person does not know it’s illegal to be in that area.” And Fox News political and legal analyst Judge Andrew Napolitano wrote that with the word “willfully” gone, “a person accidentally in a restricted area can be charged and prosecuted, as well.”

They’re wrong. Even though H.R. 347 is a blatant violation of Americans’ right to protest, it has nothing whatsoever to do with the word “willfully.”  

In a nutshell, in order to be convicted of the vast majority of crimes a person must act with a certain criminal state of mind, or mens rea.  The Model Penal Code (MPC), an influential guide the individual states and the federal government use as model for their criminal laws, recommends that criminal codes use four different levels of mens rea: purposefully, knowingly, recklessly, and negligently. Notably, the term “willfully” is absent.

The use of “willfully” as a criminal state of mind is a remnant of criminal codes developed prior to legal experts’ – like the drafters of the MPC – efforts to provide clear uniform standards for the application of criminal law. Over time, courts have interpreted “willfully” in a variety of different ways, leading to confusion today about what it really means. Referring to the use of the word “willfully” in criminal law, Judge Learned Hand once said it is “an awful word! It is one of the most troublesome words in a statute that I know. If I were to have the index purged, ‘willful’ would lead all the rest in spite of its being at the end of the alphabet.”

The drafters of the MPC offered the following instruction for perplexed judges around the country dealing with criminal codes that still contain the worrisome word: “A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.” In other words, “willfully” and “knowingly” have nearly identical meanings.

The difference between “willingly” and “knowing” was set out in the 1998 Supreme Court decision Bryan v. United States, which held that in order to act “willfully,” a person must know his conduct is unlawful. On the other hand, the mental state “knowingly” requires only that a person is aware of the factual events that led to the crime.

But while this may seem like a significant difference, it isn’t. Not at all.

For example, protesters prosecuted under the old law, with the magic “willfully”present, could not honestly have claimed that they had no idea that trespassing or disorderly conduct was illegal. Such a claim would have been laughed out of court.

The “knowing” element of the new H.R. 347 – all by itself – requires the government to prove that a person was actually aware he was (1) entering, blocking or being disorderly and (2) in or around a restricted area. This means that those who were unaware that they crossed into a restricted area or accidently blocked the entrance of a restricted building could not be charged under the law.

Through his communications director, Rep. Thomas Rooney (R-Florida) defended H.R. 347 by saying, “right now it’s not a federal violation to jump the fence and run across the White House lawn, this bill makes it a federal violation.” This is the only aspect of the law that was substantively expanded, and so on this score, Rep. Rooney is right because prior to the new law, it was not a federal crime to trespass on the White House lawn if the President or his family was not inside

But Rep. Rooney went on to say that the new law “doesn’t affect anyone’s right to protest anywhere at any time. Ever.”

And this couldn’t be more wrong.

H.R. 347 violates protesters’ first amendment right to protest in their preferred public place.

In 1968, the Supreme Court decided United States v. O’Brien, the seminal case for scrutinizing government restrictions on symbolic expression. The Vietnam War was raging, and Mr. O’Brien burned his draft card in violation of federal law. The Court held that the government was justified in punishing him because the law was aimed at preserving information on the draft cards that was necessary for keeping track of draftees, and only incidentally interfered with Mr. O’Brien’s preferred symbolic expression.

The right to protest outside the White House or other places where Secret Service-protected individuals are located is symbolic expression in the same way that Mr. O’Brien’s burning of his draft card is. But while the ban on burning draft cards had a clear purpose in addition and unrelated to suppressing speech, the ban on protest in H.R. 347 does not.

Proponents of H.R. 347 claim it advances the government’s interest in protecting its property from damage and its officials from intruders. But every state’s laws already criminalize trespass, disorderly conduct and criminal mischief.

For example, jumping the White House’s fence would be a violation of the District of Columbia’s trespass statute, which subjects jumpers to up to six months in jail. Since police can arrest and remove anyone in violation of this state law, the government doesn’t need H.R. 347 in order to protect its property from damage and its officials from intruders.

And, the practical consequence of H.R. 347’s more serious punishment is that it will deter activists from staging protests near important policymakers.

The impact on protest locations is not incidental. The law was purposefully constructed to shield a select group of powerful government officials from provocative protests. A law which restricts speech based on the impact of its message is a fundamental violation of the first amendment.

It is no coincidence that Congress is polishing up the tools in the government’s arsenal for prosecuting protesters now. Later this year, the G-8 summit and the Democratic and Republican national conventions will draw massive protests. Because the President, Vice President, presidential candidates, or foreign heads of state will be in attendance at these events, activists will be at risk for violating federal law when protesting at them.

If protesters are convicted under the law, you can be sure that they will challenge their convictions on first amendment grounds. And if they do, I’ll bet that you won’t hear a word about the law’s lack of the word “willfully.”


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