Is The $5,000 Fee On Anti-Drilling Protesters In A New House Bill Unconstitutional?

Natural gas drilling rig near Canton, Pa.
Natural gas drilling rig near Canton, Pa.

The Federal Lands, Jobs and Energy Security Act of 2013, a bill currently in the U.S. House of Representatives, has ignited a controversy over language that would levy a $5,000 fee for each protest against certain oil, gas and shale-drilling projects.

Opponents say the proposal, sponsored by Rep. Doug Lamborn, R-Colo., violates citizens' First Amendment right to lawful assembly by putting an unfair, restrictive financial burden on protesters.

But legal experts were more split in comments to International Business Times, stating that though the language may very well violate the First Amendment, it is unclear whether it actually does as written.

The language in question reads as follows, "The Secretary [of the Interior] shall collect a $5,000 documentation fee to accompany each protest for a lease, right of way, or application for permit to drill."

Nine Democratic representatives submitted an official dissent to the bill (their dissent begins on Page 35 of this document).

"The bill further attempts to eliminate public participation by establishing a $5,000 fee for filing a protest, which flies in the face of Americans’ First Amendment right to petition the government for a redress of grievances," the representatives wrote.

Hannibal Travis, a law professor at Florida International University College of Law, told IBTimes the language "could" be problematic under the First Amendment.

"Congress should not be able to deter legitimate protests with onerous fees unrelated to the cost of processing the protest documents," he said via email. "This principle was established in the related context of excessive filing fees for political candidates. The Supreme Court noted in that case that excessive fees could censor First Amendment activities, and that fees unrelated to the costs imposed by the activities may be unlawful."

But Jonathan H. Adler, director of the Center for Business Law & Regulation at Case Western Reserve University School of Law in Cleveland, told International Business Times that he is "not sure" whether the language violates the First Amendment, before clarifying that the protests addressed in the text are not your average sign-waving rallies.

"I’m not sure whether there is a serious First Amendment issue here, but there might be. I would need to know more about the specific program," he said via e-mail. "Of note, however, the 'protests' at issue here are not demonstrations and the like, but formal administrative objections to the issuance of a lease that are subject to a series of limitations (such as filing within 30 days, etc.). This is like charging court fees when one files a lawsuit. The draft legislation also requires that a share of the money stay with the office that will have to process the protest."

As such, one of the key issues surrounding the bill, if it becomes the law of the land, will likely be whether or not the fees that would be levied for these types of protests are deemed to actually be related to documentation or if they are simply deemed to be onerous financial barriers to legitimate protest activity.

The issue of the language regarding protest fees proposed in the Federal Lands Jobs and Energy Security Act of 2013 went viral after influential progressive website Think Progress published a post on the topic Monday titled "House to Vote on Bill that would Impose $5,000 Fee for Protesting Drilling Projects."

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