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John Whitehead's Commentary

Criminalizing Free Speech: Is This What Democracy Looks Like?

John Whitehead

“Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”—First Amendment to the U.S. Constitution

One of the key ingredients in a democracy is the right to freely speak our minds to those who represent us. In fact, it is one of the few effective tools we have left to combat government corruption and demand accountability. But now, even that right is being chipped away by statutes and court rulings which weaken our ability to speak freely. Activities which were once considered a major component of democratic life in America are now being criminalized. Making matters worse, politicians have gone to great lengths in recent years to evade their contractual, constitutional duty to make themselves available to us and hear our grievances. That is what representative government is all about.

Unfortunately, with gas prices rising, the economy tanking, the increasingly unpopular war effort dragging on and public approval of Congress at an all-time low, members of Congress have been working hard to keep their unhappy constituents at a distance—avoiding town-hall meetings, making minimal public appearances while at home in their districts, only appearing at events in controlled settings where they’re the only ones talking, and if they must interact with constituents, doing so via telephone town meetings or impromptu visits to local businesses where the chances of being accosted by angry voters are greatly minimized. Consider that in the summer of 2011, 60 percent of Congress refused to hold town hall meetings with their constituents during their summer break. The ones who did often charged a fee for attendance. For example, Rep. Paul Ryan charged fifteen dollars per person for his public appearance, and Rep. Dan Quayle charged 35 dollars per person.

Now, in a self-serving move aimed more at insulating government officials from discontent voters than protecting their hides, Congress has overwhelmingly approved legislation that will keep the public not just at arms’ length distance but a football field away by making it a federal crime to protest or assemble in the vicinity of protected government officials. The Trespass Bill (the Federal Restricted Buildings and Grounds Improvement Act of 2011) creates a roving “bubble” zone or perimeter around select government officials and dignitaries (anyone protected by the Secret Service), as well as any building or grounds “restricted in conjunction with an event designated as a special event of national significance.”

The bill’s language is so overly broad as to put an end to free speech, political protest and the right to peaceably assemble in all areas where government officials happen to be present. Rep. Justin Amash (R-MI) was one of only three members of the House of Representatives to vote against the legislation. As he explains:

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.

Some government officials may need extraordinary protection to ensure their safety. But criminalizing legitimate First Amendment activity—even if that activity is annoying to those government officials—violates our rights. I voted "no." It passed 388-3.

Specifically, the bill, which now awaits President Obama’s signature, levies a fine and up to a year in prison against anyone found in violation, and if the person violating the statute is carrying a “dangerous weapon,” the prison sentence is bumped up to no more than ten years. Thus, a person eating in a diner while a presidential candidate is trying to score political points with the locals could be arrested if government agents determine that he is acting “disorderly.” Mind you, depending on who’s making the assessment, anything can be considered disorderly, including someone exercising his right to free speech by muttering to himself about a government official. And if that person happens to have a pocketknife or nail clippers in his possession (or any other innocuous item that could be interpreted by the police as “dangerous”), he could face up to ten years in prison.

Given that the Secret Service not only protects the president but all past sitting presidents, members of Congress, foreign dignitaries, presidential candidates, and anyone whom the president determines needs protection, anywhere these officials happen to be becomes a zone where the First Amendment is effectively off-limits. The Secret Service is also in charge of securing National Special Security Events, which include events such as the G8 and NATO summits, the National Conventions of both major parties, and even the Super Bowl. Simply walking by one of these events places one in a zone of criminal trespass and thus makes him subject to arrest.

While the Trespass Bill may have started out with the best of intentions (it was one of many knee-jerk pieces of legislation introduced by members of Congress in the wake of the Gabrielle Giffords shooting in January 2011), it has ended up as the government’s declaration of zero tolerance for individuals exercising their First Amendment rights. Moreover, short of government officials patting down or body scanning every individual within proximity of a government official, this law is practically unenforceable. It’s doubtful this will even do much to deter determined psychopaths, who have a way of getting past the most determined barriers. What it will do, however, is keep law enforcement officials occupied with people who pose no threats whatsoever and distracted from the real threats.

It’s safe to say that what happened to Steven Howards will, under this law, become a common occurrence. Howards was at a Colorado shopping mall with his son in June 2006 when he learned that then-Vice President Dick Cheney and his Secret Service security detail were at the mall greeting the public. A Secret Service agent overheard Howards telling someone that he was going to approach Cheney, express his opposition to the war in Iraq, and ask him “how many kids he’s killed today.” Howards eventually approached Cheney and shared his view that Cheney’s policies in Iraq “are disgusting.” When Cheney turned and began to walk away, Howards brushed the Vice President’s shoulder with his hand. The Secret Service subsequently arrested and jailed Howards, charging him with assaulting the Vice President. The assault charges were later dropped. However, the U.S. Supreme Court has now agreed to hear Howards’ case on whether or not his right to free speech was extinguished.

The United States has historically stood for unfettered free speech, which is vital to a functioning democracy. Unfortunately, the tendency on the part of government and law enforcement officials to purge dissent has largely undermined the First Amendment’s safeguards for political free speech. The authoritarian mindset undergirding these roving bubble zones is no different from that which gave rise to “free speech zones,” which are government-sanctioned areas located far away from government officials, into which activists and citizens are herded at political rallies and events. Both zones, however, have the same end result: dissent is muted or silenced altogether, and the centers of power are shielded from the citizen.

Free speech zones have become commonplace at political rallies and the national conventions of both major political parties. One of the most infamous free speech zones was erected at the 2004 Democratic National Convention in Boston. Not so much a zone of free expression as a cage, it was a space enclosed by chain link fences, Jersey walls, and razor wire. Judge Douglas Woodlock, who toured the free speech cage before the convention, noted, “One cannot conceive of other elements put in place to make a space more of an affront to the idea of free expression than the designated demonstration zone.”

Bubble zones and free speech zones, in essence, destroy the very purpose of the First Amendment, which assures us of the right to peaceably assemble and petition the government for a redress of grievances. In other words, we, as citizens, have a constitutional right to address our government officials in a public manner so that they can hear our grievances or concerns. What these zones do, however, is create insulated barriers around public officials, thus keeping us out of sight and sound’s reach of those who are supposed to represent us. Many prominent activists, from Occupiers, to the Tea Party, from anti-war protestors and so on, will be shut out from the view of public officials under this legislation. These zones also serve a secondary purpose, which is to chill free speech by intimidating citizens into remaining silent.

Consider this: if these types of laws had been in effect during the Civil Rights movement, there would have been no March on Washington. Martin Luther King Jr. and his fellow activists would have been rendered criminals. And King’s call for “militant nonviolent resistance” would have been silenced by police in riot gear.

WC: 1532


Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

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