HR 347 - Federal Restricted Buildings and Grounds Improvement Act

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 accidentally blocked the entrance of a restricted building could not be charged under the law.

Through his communications director, Rep. Thomas Rooney 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.

So, let's say a G-20 meeting is hosted in the U.S. and the Secret Service decides it wants a larger perimeter surrounding the event where only G-20 members and staff can be. A person could be arrested and found guilty of violating this law — with up to 10 years in prison if they're carrying a weapon, one year in prison if they're not — for merely walking into the restricted area, without even knowing walking into the area is illegal.

The truth is more mundane, but the issues raised are still of major significance for the First Amendment.

It's important to note — contrary to some reports — that H.R. 347 doesn't create any new crimes, or directly apply to the Occupy protests. The bill slightly rewrites a short trespass law, originally passed in 1971 and amended a couple of times since, that covers areas subject to heightened Secret Service security measures.

H.R. 347 did make one noteworthy change, which may make it easier for the Secret Service to overuse or misuse the statute to arrest lawful protesters.

Without getting too much into the weeds, most crimes require the government to prove a certain state of mind. Under the original language of the law, you had to act "willfully and knowingly" when committing the crime. In short, you had to know your conduct was illegal. Under H.R. 347, you will simply need to act "knowingly," which here would mean that you know you're in a restricted area, but not necessarily that you're committing a crime.

Any time the government lowers the intent requirement, it makes it easier for a prosecutor to prove her case, and it gives law enforcement more discretion when enforcing the law.

When it comes to relegating demonstrators to obscurity, two approaches predominate: keeping protesters outside an expansive, sanitized bubble that surrounds the very event they have come to protest, or allowing them to come closer, but only within the confines of heavily policed "protest pens" that one federal judge likened to temporary internment camps.

The exclusion zones imposed by [the law] have no natural or intuitive spatial boundaries. They can be as large as law enforcement claims is necessary to ensure the security of whoever the Secret Service is protecting. The "free speech zone" is a moving target, not a delineated area.

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.