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1547. Constitutionality -- 18 U.S.C. 1752

Constitutional attacks on 18 U.S.C. § 1752 would most likely fall in two categories--vagueness or violation of the First Amendment.

Allegations of vagueness should be overcome by the formal designation of the buildings and grounds that are subject to the regulations published in the Federal Register. In addition to appropriate signs providing notice of a temporary residence or of a restricted area, the Secret Service will endeavor to post personnel in appropriate locations to give verbal notification to persons seeking to enter without authority or otherwise act in violation of the statute, to meet the special problems of notice in restricted areas. Peaceful assembly where the President or the President's office is located will still be permitted. Presidential security is conducted pursuant to Federal authority, and thus does not depend upon differing local ordinances.

The basic legal theory underlying the provisions of this statute is that of trespass. The government has the right to control presence on government property, and physical presence on the designated grounds is clearly covered by regulations. Since demonstrations involve conduct, they are subject to reasonable regulations when necessary to protect other legitimate government interests. See Cox v. Louisiana, 379 U.S. 559 (1965). Even-handed application of a precise and narrowly drawn regulatory statute should pass constitutional muster. See Edwards v. South Carolina, 372 U.S. 229, 236 (1963). See also Shenck v. Pro-Choice Network, 117 S.Ct. 855 (1997) at 868-869, (upholding fixed buffer zones to permit ingress and egress at an abortion clinic).

Section 1752 of Title 18 is aimed at specific categories of knowing and willful conduct, and 18 U.S.C. § 1752(a)(1) is far more circumscribed than the general trespass statute upheld in Adderly v. Florida, 385 U.S. 39 (1966).

First Amendment objections may be raised as to the validity of 18 U.S.C. § 1752(a)(2) which outlaws the intentional disruption of government business at designated residences and offices. Section 1752(a)(2) is not aimed at suppression of peaceful and orderly protests and does not apply where there is no disturbance of others and no disruption of government activities. See United States v. O'Brien, 391 U.S. 367, 376 (1968), and the opinion of the Court in Cox v. Louisiana, supra.

Section 1752(a)(2) of Title 18 might also be challenged for vagueness for use of the phrase "within such proximity to." However, the Court in Cox v. Louisiana, supra, upheld the language "near," and stated that although there was some lack of specificity inherent in the term "near," the statute was not unconstitutionally vague because administrators were properly given narrow discretion to construe the term.

Section 1752(a)(3) of Title 18 outlaws any intentional interference with ingress or egress to or from any of the buildings, grounds or areas specified in 18 U.S.C. § 1752(a)(1). Similar prohibitions have been upheld by the Supreme Court. See Cameron v. Johnson, 390 U.S. 611 (1968); Schneider v. State, 308 U.S. 147 (1939).

[cited in JM 9-65.400]

Updated January 17, 2020