Preserving a balance: criminal trespass v. First Amendment
Andy - a couple of statutes to help us out on what criminal trespass actually is (stripped down a bit):
Criminal trespass to property (Montana)…a person commits the offense of criminal trespass to property if the person knowingly:
(a) enters or remains unlawfully in an occupied structure; or
(b) enters or remains unlawfully in or upon the premises of another.
(2) A person convicted of the offense of criminal trespass to property shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both.
First degree criminal trespass (Louisiana)…A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another or if such person enters any motor vehicle with intent to steal anything of value or with intent to commit a crime therein. First degree criminal trespass is a class 5 felony.
The key element that changes run-of-the-mill trespass to criminal trespass is the "knowingly" element. If you don’t know you’re trespassing, it’s not criminal trespass.
So that brings us back to Cindy Sheehan - did she "know" she was trespassing? Or did she think she had a First Amendment right to be present? Sometimes, one possesses a First Amendment privilege that can’t be squelched by criminal trespass claims - as when one is protesting on a traditional public forum.
Is camping near the President’s residence in Crawford, Texas a public forum? I’d have to know more about the specific location.
But think about it this way: what if someone wanted to protest the President’s behavior in your bathroom. After the first few days, this type of protest could grow quickly tiresome (and a bit smelly). You’d want the ability to make that person leave. You might take that person to court and sue them for trespass - and in about six months, perhaps get somewhere. But most of the time, you’d want them out a bit sooner than that.
What would you do?
Next question: does the President, by virtue of being a major public figure, have fewer rights than you do? Could the President, say, kick someone who protested his policies out of his bathroom, First Amendment not withstanding?
OK, what about his front lawn? Just think, a bunch of protestors making messes in the lawn starts to stink after a couple of days.
OK, where does that front lawn end? If it’s a big yard, does the President only have rights to the portions of the lawn near where he could smell them? What about the back lawn? What about the little forest?
We don’t want the law to make distinctions in property based on something as arbitrary as "smelling distance." But what basis should be used? If someone owns the property, don’t they have a right to evict trespassers?
Just some thoughts. The First Amendment doesn’t confer on anybody the right to confiscate someone else’s property, just for a moment - freedom of speech does not equal freedom to camp where one wills (the test case, by the way, involved homeless protestors who wanted to camp on the Washington Mall a few decades ago).
Seems reasonable to me that if someone "knowingly" chooses to remain on property that they know they aren’t allowed to be on - then that person wants to go to prison. The government isn’t actually silencing them by sending them there; just forcing them to pay the price of their convictions (sometimes with a conviction).
These are not sentences that are so heavy that someone would be terrified into silence - they are small enough to ensure that one gets a chance to make their message in court, and still preserve some property rights. While I’m hardly a property totalitarian (recall my position on the City of New London case under the property rights discussion), I do think some measures are necessary to preserve a balance.
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