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Another Brick Removed

Another Brick Removed

Our Bill of Rights is the foundation of our protections from government intrusion, a bastion of liberty unknown in most of the world. The essence of the Bill of Rights, what defines us as a nation and a citizenry, is captured by the First Amendment – freedom of religion, speech, press, assembly and petition.

This defensive fortification is under constant assault and must be protected at all costs or tyranny will reign. Without much fanfare, a law has been enacted that will greatly impact one’s ability to exercise many of their First Amendment rights and, thus, lose rights that many in this world only dream of having.

HR 347 was recently signed into law by President Obama. This statute had wide support amongst both parties of Congress. In essence, it criminalizes disruptive behavior upon government grounds, at specially designated national events (Super Bowl, nominating conventions, etc.) and anywhere that Secret Service is protecting “any” person. Obviously, the goal of this law is to enhance the ability of the Secret Service to protect those persons it is charged to do so; but in extending this power, this law eviscerates the citizens’ rights to assemble and petition under the First Amendment.

The major flaw in this law is it vests too much discretion with the executive branch – Secret Service – in cordoning off public venues in order to carry out their protective services function. Ignore their dictates and become a criminal. This expanded authority will eventually run afoul of the First Amendment; the question remains if the First Amendment will be protected by the courts.

Although this new law will most assuredly allow the Secret Service to disrupt those people intent on causing harm, the law will also impact those who are peaceably protesting and that is the major problem with the law, it casts to broad a net. When we are dealing with fundamental rights such as those guaranteed in the First Amendment, in order for the government to regulate this conduct, the law must be narrowly tailored for a compelling reason (strict scrutiny). Most laws in this area fail because not only does it outlaw the illegal behavior (think obscenity) but it also impacts constitutionally protected activity (think of art work such as nude paintings). HR 347 will impact people’s right to protest.

It has been a hallmark of legal jurisprudence that people exercising their right to protest be given sight and sound to the object of their protestations. So if one is protesting a political rally, you have a right to be seen and heard. However, if the Secret Service is present, it is up to them if you are allowed to be seen or heard. And what is to stop them from picking favorites in this arena? Does anyone really think that the same standards would be applied to a pro-choice rally as to a pro-life rally? Your rights will be subject to the whims of those in power.

If this law is allowed to stand another brick from our wall of liberty will have been removed. It will not be too long before the wall crumbles. Then what?


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“The major flaw in this law is it vests too much discretion with the executive branch…”

I respectfully disagree, Prof. I think the major flaw in the law, as I understand it, is that it does not require any mens rea…or awareness even…for an “offense” to occur.

As I understand, one could very inadvertently violate this VASTLY over-broad law. How-the-HELL would you or I know if a Secret Service protectee was in a crowd where we were?

    Louis R. Lombardi in reply to Ragspierre. | March 18, 2012 at 4:25 pm

    The law establishes a mens rea of “knowingly” and as you point out, if you don’t know about the secret service and a protectee being present, how can you be held liable for criminal punishment. But, the law allows the secret service the use of unfettered discretion in order to carry out their functions. Unlimited discretion can lead to unlimited abuse.

      Ragspierre in reply to Louis R. Lombardi. | March 18, 2012 at 4:32 pm

      You do find both “knowingly” and “intent” in the language of the bill. Which sort of provides SOME mens rea requirement…

      BUT, it really depends on how a court interprets KNOWINGLY. I, for instance, am pretty seldom not KNOWINGLY wherever I am (at least since the sixties).

      I could easily be picketing an IRS building INTENTIONALLY.

      If Valerie Jarret bopped up…

Obama laughed. Then he joked that maybe the trigger should be his own removal from office. Biden deadpanned: Republicans might just go for that.

Even a stopped clock is right twice a day

Both sides of the “one-party establishment” in Washington, DC are keen on keeping we, the rabble, from exercising our rights.

We need to boot them out and reclaim our government and our country.

Donald Draper | March 18, 2012 at 5:07 pm

Off topic, but I’m new here and have a question. How has Mr. Jacobson not been fired by Cornell? Does he have tenure? It’s neat having a conservative blog run by an academic.

    They don’t fire him because the don’t DARE fire him. His FINRA connections alone are PRICELESS to the Cornell Law School students. Further his membership on the Board of Directors of the Public Investors Arbitration Bar Association is very valuable in making Cornell Law students connections.

    Plus I would assume that it’s hard to find a graduate of Harvard Law who actually practiced, especially at the appeals level, like the Professor did rather than just went straight into government work or teaching.

    Perhaps, in the interests of diversity, they need a token conservative.

      donb in reply to donb. | March 19, 2012 at 3:06 pm

      Actually, in addition to the (much needed) diversity of viewpoint that Prof. J. provides, Cornell Law School gets access to his amazing intellect and all of the other added value that Chuck points out above.

Free Speech Zones, just like in Dearborn-istan, Michigan

huskers-for-palin | March 18, 2012 at 5:27 pm

Time to fire up the court docket…this is going to court.

    Don’t wait for the Republicans to do it. As They’re too busy standing around doing nothing but signing laws like these for fear that the Dems and MSM will pick on them if they don’t.

    “This statute had wide support amongst both parties of Congress.”

    AS IF there are two parties!

Free speech? We don’t need no stinkin’ free speech! Whattayouse people think this is, the US of A or somethin’?


    Hope Change in reply to irv. | March 18, 2012 at 7:16 pm

    irv, doesn’t the sigh signal hopelessness? resigned defeat? I this not perhaps the time for something much more determined?

    Our morale is the most precious thing we have. We must not surrender our morale to these forces of decadence.

    Our true American history is honorable, fierce, dedicated, stalwart and stands up for freedom.

    Anyone who wants determination, courage and high morale, watch Newt’s Citadel lecture. “AMERICAN FREEDOM & THE CONSERVATIVE INTELLECTUAL TRADITION IN AMERICA” The early Americans are SO AEWSOME. Check it out.

    And here is a really nice film made with volunteers. Paul Revere’s Ride. Shows the American spirit DON’T TREAD ON ME. Very suitable for homeschooling and for any children learning about America.

    You guys, things are liable to get much harder, in the short run, before they get better in the long run. We must find a way to toughen our attitude. Our morale is the most precious thing we have. Let’s protect it fiercely.

Another Brick Removed

So…where do we go to get our brick(s) back?

    OcTEApi in reply to Browndog. | March 18, 2012 at 7:03 pm

    March 16, 2012 at 1:27 pm
    Financial woes cast shadow on Book Cadillac
    Pension fund averts default but investor, condo issues loom

    From the article:
    “Michigan taxpayers have a vested interest in the hotel.”

    Bricks, mortar, chandeliers and two car companies, what more could a taxpayer want?

    Hope Change in reply to Browndog. | March 18, 2012 at 8:02 pm

    Hi, Browndog. I’m glad you asked!

    There is a candidate for president with a CLEAR PLAN for getting our bricks back.

    I’m not kidding. We can do this. It isn’t even that hard. But you have to go against the MSM and the Establishment and FIND OUT FOR YOURSELF.

    With Newt, the WHOLE POINT is to get the bricks back. This is the meaning of the slogan “unleash the American People to restore our country, that we love.”

    Newt’s administration will provide focus: one idea, one bill at a time. Small bills, focused steps. The genius & energy of the American People will then provide the force and require the government to reform.

    (Note to RickCaird — as appealing tar and feathers may sound, this actually will be more effective.)

    This is why Newt’s speeches are important. Because anyone who watch the speeches finds out how we’re going to get our bricks back.

    Start with “2012: VICTORY OR DEATH” There are other speeches there, but start with “2012: VICTORY OR DEATH.”

    Then watch Newt’s 2012 CPAC speech for THE PLAN.
(I put a loose transcript there so you can skim through it if you want.)

    Then watch the brand-new Rosemont speech from March 14, 2012. The synergy has started. It’s oil and also all kinds of systems we can modernize. Enter the world that works! Schaumberg/Rosemont — ROSEMONT at ElectAd —

    Newt’s AMERICAN ENERGY NOW platform has gotten the attention of the White House and is making news. American Energy Now solves JOBS, THE NATIONAL DEBT, THE PRICE OF GAS AND RELIANCE ON THE MIDDLE EAST FOR OIL. It’s easy. They’re already doing it in North Dakota.

    This is like a treasure map for the whole country. We can be prosperous, with low unemployment and tons of opportunity for all. We can reform the government, and enforce the 10th Amendment to return power to the states.

    We can become the greatest manufacturing nation again on the planet. We can have abundant, cheap energy. We can give our children a debt-free nation.

    This is how, Browndog. We can easily do this if we work together as a team. Check it out.

Has signed pretext to arrest political dissidents.

Yes. Okay. That would come after the quietly signed executive order Friday that all U.S. resources are under dictatorship even in peacetime.

Right on schedule…

We are getting many of these “laws” that, among other things, ignore due process. The ability of President to hold forever and without trial anyone he deems to be a terrorist or to kill US citizens without answering to anyone is beyond the pale. This is just another law along these lines. None of them will stand up in court (or at least should not stand up), but the cost of challenging them is both high and difficult.

Basically, we need to throw everyone in the House, Senate, Presidency, and judiciary out, repeal these idiotic laws, and start over. Fat chance. Almost every one of these people is a thief, a bandit, a crook, or a con man. The best we seem to be able to do is elect the least worst of the offenders.

It is too bad tar, feathers, and rails are not still in vogue.

    Hope Change in reply to RickCaird. | March 18, 2012 at 8:31 pm

    RickCaird — But there is an effective way.

    We have done this many times in American History. We finally get fed up and WE THE PEOPLE do something. The TEA Party is the beginning.

    The MSM and Establishment want you to think it’s all over and nothing can be done. Au contraire, mon frere!!!! Here’s the attitude of the Establishment to the Constitutional American: “Whatever Lola Wants” – “Damn Yankees”

    Our schools are so bad and consequently our education is so inadequate that we don’t know much about our own history. The American People have thrown the crooks out before. We can throw the crooks out again.

    With online technologies, we can now require every level of government to be completely transparent and to put up on line, for all to see, every expenditure except those needed for national defense. WE are on the verge of a remarkable improvement if we can but see it and grasp the opportunity.

    Think about a world in which number-crunching American citizens could examine EVERY PENNY spent by the School Board, the Town, the County, the City, the State and the federal government. Imagine the improvements, the cascades of improvements!

    Hope Change in reply to RickCaird. | March 18, 2012 at 8:35 pm

    WE won’t need tar and feathers because we will be able to keep track in real time or close to it.

    Also, government will be less attractive to crooks. Government will be much more attractive to the civic-minded.

    If we also have abundance in our economy, there will be lots of prosperity, excellent revenues to every level of government without over-burdening the tax payer.

    This is completely possible and it is not even that hard. But we have to be informed and we have to team up.

I’m very, very glad to see you drawing some attention to this law, Prof. L. The silence surrounding it has been deafening! It passed both the house and senate around three weeks ago.

My thoughts were, and still are

I also consider the ACLU’s silence to be foreboding and indicative of the new law’s possib[le] utility in squelching dissent (although I’m reasonably certain the rights of OccuComms would not be infringed since technically they are not protesting, just occupying and expressing).

    scooterjay in reply to donb. | March 18, 2012 at 8:39 pm

    Au contraire, mi amigo… as this plays perfectly into the astroturf that is the “occupy” movement….as they create havoc at the DNC in Charlotte old Jugears will claim that “conditions are creating a dangerous situation for the safety of the public” and he enacts martial law, and suspends the November elections in the name of “national security”. Of course, there will be pandemonium and he gets his “see, I told you so” moment and becomes dictator of the People’s Republic of Gaia. I hope I’m having a “tinfoil hat” moment!

Zelsdorf Ragshaft III | March 19, 2012 at 1:34 am

Maybe it is close to time to exercise 2nd Amendment rights. A well regulated militia, being necessary for a free State,. Chairman Mao made a statement about where power comes from. I think he mentioned barrel of something or another.

    Henry Hawkins in reply to Zelsdorf Ragshaft III. | March 19, 2012 at 10:38 am

    The Battle Of Athens – 1940s, McMinn County Tennessee. Local Democrat political machine has taken over, fixing elections, taking citizen money by false arrests, fines, etc., the sheriff essentially setting himself up as a local tyrant. Citizen complaints to the FDR DoJ are ignored, election after election. In the 1946 election, fearing he’ll lose to a WWII vet, the sheriff confiscates the ballot boxes so his people can do the ‘counting’. A citizen who resists is shot. Local citizens – mostly WWII vets – take up arms, engage the sheriff’s department in a gun battle, take back the ballot boxes, and their town. True story.

    13 minute dramatization of events:

    I know a goodly number of people ready, willing, and able to take up arms in defense of their liberties. Not talkers. Doers.

[…] (typeof(addthis_share) == "undefined"){ addthis_share = [];}by SmittyProf. Jacobson at Legal Insurrection:HR 347 was recently signed into law by President Obama. This statute had wide support amongst both […]

Actually, this could be VERY useful to us Conservatives. You just KNOW that the Liberals and Anarchists are going to be doing their “protest” thing at the Tampa convention. This will allow the Secret Service to shut them down hard and arrest the disruptive ones.

We can use this against them if Romney, Gingrich and Santorum are willing to do so.

Unfortunately that does mean that we can’t embarrass the protesters as easily by asking them exactly what they’re protesting and seeing them stumble by not knowing why they’re present or why they’re holding signs they can’t read.

southernwolf | March 19, 2012 at 6:28 pm

“the law will also impact those who are peaceably protesting”.. This may have been the real intent of this law. Recall the TEA party rally in Quincy, IL where the Secret Service told the police to push the peaceable senior citizens farther away. Which the police did, marching out in riot gear while the TEA people sang America the Beautiful. Why do Republicans assist Democrats in piling up more and more onerous laws?