The bad news, in case you missed it, is that 12 people were arrested for holding signs in Wisconsin’s Capitol building Wednesday and Thursday. The good news is that on Friday about 300 people gathered to sing and hold signs without flak from police.
There’s more good news tucked in a recent court judgement, but it’s not expected to tie the hands of Walker’s admnistration for long.
Judge Remington made it clear on Wednesday that the act of holding a sign is not a “display” in the Capitol building as defined by WI Chapter 2 administrative code 2.0(7). ** What this does is blow a hole in the logic that the Dept. of Administration has used to arrest sign-holders.
According to attorneys I spoke with, the rest of what is tucked into Remington’s summary judgement is not so good for free speech advocates since it contains no order to halt arrests in the Capitol over speech and it doesn’t demand compensation to citizens for time and money they lost while fighting their tickets.
I spoke with attorneys Bill Turner and Jim Mueller who are both familiar with the recent Remington decision and the ongoing free speech ticketing in the Capitol.
National Lawyer’s Guild attorney Turner, said “essentially Remington is rewarding the state for being ambiguous about what they are charging people with. That is galloping due process. They can’t prosecute you for an offense if they can’t decide what the offense is.” Turner expects that the state will go back and look for something else in code 2.0(7) to prevent activity they don’t like.
Jim Mueller is an attorney who has been arrested three times for displaying a sign in the capitol and who has also represented others against infringement of free speech. He doesn’t see an end to the ticketing for sign-holding.
Mueller said, “I still think the door was left open a little bit on permitting and forcing people to hold their signs on the ground floor instead of on the 1st floor. I think they will come back and tweak their rules a little bit and use that as an excuse – as a cover – and say “OK we’ve got new rules – in good faith we’re basically going to trample on people’s first amendment rights. In good faith”.
Capitol police have been arresting people based on their lack of a permit, and that permitting process has hinged on WI Chapter 2 Admin. Code — hence the significance of the definition of “display” of a sign in that statute.
The summary judgement meted out by Remington addressed arrests made in March of 2011. As of December, DOA rules on use of the Capitol building became much more expansive – and alarming. They got national press for requiring that “rallies” of 4 of more individuals would pay for their own police protection – perfect material for Stephen Colbert’s television show.
Remington’s judgement on Ryan vs. Huebsch was only made public Wednesday. It was on a lawsuit initiated by Jeremy Ryan and others*** who had received tickets in March 2011 for holding signs on the 1st floor of the Capitol in defiance of a then new proclamation by DOA that the only “free speech zone” in the Capitol building was on the ground floor of the Capitol.
Ryan’s lawyer, Jeff Scott Olsen, claimed that the citations restricted freedom of speech, and that they were “in violation of the First
Amendment to the Constitution of the United States”.
In the end, the defendant DOA director Mike Huebsch got a summary judgement, as his attorneys requested. Ryan did not get the monetary compensation he requested nor did he get a declaratory judgement from Judge Remington to order the DOA/police to stop ticketing people for sign holding.
Jeff Scott Olsen, attorney for Ryan et al, could not be reached in time for this post today. Turner said that last he knew, Olsen was still weighing his next move.
This Blast from the Past is Relevant
The Wisconsin constitution contains Article 1 Section 4:
“The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.”
This is language that folks take seriously in Wisconsin largely due to decades of activism by the late Ben Masel.
Citations were handed out to Jeremy Ryan and Valerie Walasek on the 1st floor of the Capitol building the day before I took the video featured below. In the video you’ll hear from Ben Masel who came to both protest the arrest of Ryan and Walasek and to hold his “This is a test of the emergency free speech system” sign, daring police to give him the same treatment. Police did not take the bait. At the time we speculated it was because Ben Masel was terminally ill and his arrest would spark media attention. Jeremy Ryan is also featured in this video.
So How Did It Go on Friday?
On Friday there were no arrests in the Capitol building as over 300 people gathered in and around the rotunda without a permit to sing and hold signs and express joy with each others’ company. They were there as a direct response to the arrest of 12 citizens this week for “illegal display of signs” in the rotunda of the building.
Those 300 or so people included Wisconsinites from far-flung communities such as Samantha Masterton and her 87 year old mom who drove down from Antigo and CJ and Stephanie who came from the Fox Valley.
They had no clue if they would face arrest or harassment or would be left perfectly alone.
I spied only a few police officers on the ground floor Friday, and they did not arrest anybody. Unfortunately, at least one officer acted aggressively towards a citizen observing the singing from a 2nd floor vestibule.*
The point of the gathering was to simply hold the line for free speech. Therefore, there was an anything-goes spirit to the content of messaging.
This is completely appropriate since there was an anything-goes spirit in the arrest of Wisconsinites on Wednesday and Thurday. For example, Jeri was arrested for holding a T-shirt.
Thus, on Friday one man held a copy of the Isthmus. Two people held an American flag. Brian Standing held a sign that said “Arrest me” on one side and “This is a sign” on the other side. Several people held up carbon copies of the citations they got for holding signs earlier in the week. Several held copies of the Wisconsin or U.S. constitution.
Worley Dervish has a few more pics and a write-up on Friday as well called “Thank you, Chief Erwin!”.
For The Record: State Rep. Chris Taylor Tried to Get Answers
Rep. Chris Taylor tried to meet with capitol police Friday to get answers to her questions about recent free speech arrests. She got a meeting with Capitol police officials but she said they walked out when she began asking tough questions.
Below is Rep. Chris Taylor’s letter to Chief Erwin as shared by Rep. Peter Barca on facebook Friday evening:
September 7, 2012
Capitol Police Chief David Erwin
Division of Capitol Police
B2N, State Capitol
Madison, Wisconsin 53702
Dear Chief Erwin,
I was very shocked and disappointed today when you and Department of Administration Executive Assistant Gwendolyn Coomer walked out of a meeting scheduled in my office. I had requested this meeting with you several weeks ago to obtain more information about the enforcement of Capitol permitting policies. This meeting, which had been rescheduled twice due to your and DOA’s request, ended abruptly with you and Ms. Coomer refusing to answer the most basic questions about the basis for recent arrests in the state Capitol and the specific conduct you believe to be unlawful.
My concerns are two-fold: 1) That my constituents and the public be treated fairly when in the Capitol, and 2) That enforcement actions against those using the Capitol comply with constitutional protections and free speech considerations.
When I asked about the specific conditions you were considering in determining whether an individual needed a permit or when making an arrest, you stated that these determinations were being made on a “case-by-case basis” and refused to articulate specific factors that would be considered. Instead, you and Ms. Coomer recommended that anyone considering holding a sign call the Capitol police to inquire whether a permit would be needed. This gives me grave concern that the public is not being provided adequate notice about what conduct you are prohibiting and under what specific legal authority you are acting. Further, this subjective manner of making permitting and arrest determinations can easily lead to abuse, with the result being that constitutionally protected political speech is being improperly silenced.
I am also troubled that you and the Walker administration have refused to tell an elected representative what specific conduct you are interpreting as being unlawful in the Capitol. The public and those of us who work in the Capitol, particularly legislators who take an oath to uphold our state constitution, deserve to know the exact basis for the arrests, the criteria that will be evaluated when determining whether to arrest somebody and the specific conduct you are interpreting as requiring a permit. Without this specification, your actions are guided by subjective criteria and random enforcement. Such randomness has the potential of rooting out lawful, constitutional protected political expression, which has long been a proud tradition in our state.
My intent and hope in scheduling this meeting was to receive specific answers to pertinent questions. If I came across as rude, I do apologize. I was merely trying to ask very direct questions and get direct answers because these are important issues that deserve a thorough and complete response from you.
Because I am concerned I will not receive verbal answers to the most basic questions about your arrest activity, I have attached an e mail I previously sent to Ms. Coomer with just a few basic questions to which I am requesting you respond. Ms. Coomer asserted today that these questions posed complicated legal issues that were still being worked out, despite the fact that you have been arresting people for carrying signs for the last 2 days. Prior to arresting people, I would have expected that you and the DOA would have determined exactly what conduct would be subject to arrest. I am alarmed to hear this is still being “worked out.”
I specifically request that you refrain from making further arrests of individuals carrying signs in the state Capitol or engaging in other constitutionally protected political speech until you are able to specify the conduct you consider unlawful and the legal basis for such a conclusion, which should also be made known to the public.
I thank you in advance for your prompt response.
Chris Taylor State Representative
Cc: Mike Huebsch, Secretary, Department of Administration (Via Electronic Mail)
*On Friday, Officer Lisa Kaufman did not peaceably share a 2nd floor vestibule with a citizen who was holding a camera and gazing at the singers below as documented in a facebook report and through photos.
Officer Lisa Kaufman pushed the citizen aside, informed her that Kaufman was using that space, and following, the citizen turned her camera on Kaufman. Kaufman put her hand up to hide her own face and informed the citizen she was “obstructing”.
The citizen then left the space to avoid further conflict. Kaufman then left the balcony. [I got an online note to correct this]
**from Judge Remington’s Summary Judgement Case No. 11-CV-4913: “The term ‘displayed’ implies something like a freestanding exhibit showcased in the Capitol, not an individual holding a handmade sign over their head comparing the governor to a character in a comic book. Thus, the terms of § Adm. 2.07(2) does not prohibit the Plaintiffs’ conduct. Second, the DOA’s new Facilities Access Policy supports the conclusion that § Adm. 2.07(2) did not apply to the Plaintiffs’ conduct. (Lazar’s First Aff. Ex. C). The Policy defines an ‘exhibit’ as ‘[a]ny display of… signs or banners not held by an individual.’”
Complete List of Defendants and Plaintiffs in the Lawsuit Ryan vs. Huebsch Case No. 11-CV-4913:
Kathleen D. Hoppe
Mike Huebsch, Dept. of Admin, State of WI
Charles Tubbs, Chief of Capitol Police [now former]
Chris Weiss, Steven Mael, James Brooks, Capitol police officers who conducted the arrests