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CRM 1500-1999

1625. First Amendment -- 18 U.S.C. 112

Section 112(d) of Title 18 provides against any construction or application of 18 U.S.C. § 112 ". . . so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States." The specificity of the section, defining the types of conduct to which the intimidation and harassment provisions apply (see 18 U.S.C. §  112(b)(1)(2) and the 100 foot radius of the provision prohibiting congregation or violating any other provision of the statute), substantially ameliorates the basis for any substantial First Amendment claim. See CISPES v. FBI, 770 F.2d 468, 477 (5th Cir. 1985), where the court sustained the provision of § 112(b) prohibiting congregation within 100 feet of a protected building because it prohibited such congregation only where the assembly was with the specific intent to commit activities that the government could properly proscribe. It is also noteworthy that, in responding to a constitutional challenge to a similar but more restrictive provision of the D.C. Code prohibiting the display of banners and placards near foreign embassies, the Supreme Court spoke approvingly of § 112 and cited it as an example of careful legislative draftsmanship which was designed to withstand First Amendment scrutiny. Boos v. Barry, 485 U.S. 312 (1988).

[cited in JM 9-65.800]