Earlier this month, Obama signed H.R. 347 into law after it received an overwhelmingly positive vote in Congress. The bill is officially called the Federal Restricted Buildings and Improvement Act of 2011. You can read the text of the law here. Controversially, the law permits criminal prosecution of whoever “knowingly enters or remains in any restricted buildings or grounds without lawful authority.” The law defines “restricted building or grounds” as the White House, the Vice President’s official residence, any building where a “person protected by the secret service is or will be temporarily visiting,” and, most alarmingly, any place designated as the location of “a special event of national significance.”
These last two clauses, while likely facially constitutional, potentially allow government officials the authority to capriciously disperse any protest. Virtually any protest held in Washington D.C. could be dispersed on the basis that a Senator may intend to visit the grounds in the near future. Furthermore, could pro-life groups be forbidden to protest outside the venue of a speech of a prominent pro-choice advocate on the basis that his speech is an event of national significance?
Representative Justin Amash, one of only three “nay” votes in the House, wrote on Facebook: “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.”
The broad language of the bill has been attacked in the media by the left and the right. Slate has advised readers not to believe government officials who defend the anti-protest bill as a “small tweak of the existing law.” Judge Napolitano, writing for Fox News asked “Can the Secret Service tell you to shut up?” and concluded that the legislation denied protesters the First Amendment guarantee of “useful” political speech.
Eugene Volokh has offered a muted defense of the bill. Volokh offers in the law’s defense that it applies only to those who knowingly enter and remain in a restricted building - those who accidentally enter a restricted area are protected from prosecution. He also points out that the most offensive provisions of the law are only slightly changed restatements of the existing 18 U.S.C. § 1752, which was made into law in 2006. Volokh states that “the law has been in place for six years, through two administrations, without (to my knowledge) a vast amount of abuse.” However, even Volokh admits that “perhaps the reference to “special event of national significance” is too vague. . . . [and p]erhaps there are ways to let the Secret Service do its job while that would still robustly protect speech. . . .”