Walker Administration Sued over Free Speech in the Capitol

The struggle to maintain Wisconsin’s capitol rotunda as a public forum for free political speech is being taken to the next level by a University of Wisconsin professor and the Wisconsin ACLU. Yesterday attorneys Larry Dupuis of the ACLU and Steven Porter filed a lawsuit in federal court on behalf of Michael Kissick against Wisconsin Department of Administration Secretary Mike Huebsch and Capitol Police Chief David Erwin.

The complaint claims that the capitol access policy and permitting requirements for use of the rotunda by four or more people “promoting a cause” violates citizens’ First and Fourteenth Amendment rights due to the “content-based, vague and overly broad and restrictive permit scheme.”

The policy in question was put in place in December, 2011, but not implemented until September, 2012, when the new capitol police chief began enforcing it by issuing citations to participants in the noon-hour Solidarity Sing Along. The policy states that an organizer of any “performance, ceremony, presentation, meeting, or rally” in the capitol must obtain a permit. A rally is defined as a “gathering of four or more people for the purpose of actively promoting any cause.”

The policy excludes “tourist activities or families visiting the capitol; constituents or members of the public visiting elected officials; or the passage of individuals” into or through the building. It is silent on the topic of paid lobbyists or groups of people organized for special lobbying days at the capitol – people who are unabashedly promoting specific causes.

Permit applications include a liability clause holding law enforcement harmless in the event of any injury or wrongdoing by an officer against a citizen during the course of the permitted event, and allows the state to charge the permit holder for law enforcement expenses. In some cases, it also requires the permit holder to purchase an insurance bond.

In a statement released yesterday, Michael Kissick said, “I have always attempted to follow the law while expressing my political views.” Kissick lives and works close to the capitol and had frequented the Sing Along until September last year when he saw others being cited for random charges of holding banners and obstructing passageways.

“It became impossible to be safe from arrest or citation when the capitol police began making arrests and would not give me assurances I would not be arrested or ticketed,” Kissick said. “I resent being treated as criminal for speaking freely in a public forum. This country was founded on dissent, so I view myself as a proud American exercising my rights to engage in the most protected of all speech.”

The Solidarity Sing Along began as a spontaneous expression of outrage by citizens in March, 2011, after the Republican-dominated legislature rammed through a bill that stripped public workers of most of their collective bargaining rights despite enormous, sustained opposition. People have continued to sing – and compose – songs of defiance and solidarity every weekday for the past 100 weeks.

The distinctive feature of this event is that it is as loosely organized as any long-term, continuous event can be, and there is no hierarchy or specific person in a leadership position. Taking responsibility for the shopping bag full of songbooks and finding the right musical pitch to each song is the extent of activities requiring any amount of initiative, and those responsibilities rotate from day to day.

There is no formal organization or membership – it is more like a well-known happening with the spontaneous participation of whoever chooses to show up on any given day like a musical jam session or a pick-up basketball game.

People show up to sing for a wide variety of reasons, but they are not unified in promoting any specific cause apart from their right to free speech in the public forum of the rotunda. They generally find common cause in protesting what they see as the autocratic, undemocratic and arrogant rule of Scott Walker and the Republican-dominated legislature.

Many claim that singing protest songs in the rotunda is their last resort as a way to make an impression on state lawmakers in the majority party who otherwise ignore the voices in opposition to their policies. Just last week both Senate and Assembly mining committees approved a controversial mining deregulation bill over serious, scientific, cultural and legal objections to it by a large number of citizens who attended a public hearing on it last month. Republicans rejected all amendments to the bill offered by Democratic members of the committee.

Committee chairs Sen. Tom Tiffany (R-Hazelhurst) and Rep. Mary Williams (R-Medford) have yet to release to the public the official records from the hearing that include the names of people registering for and against the bill, nor have they released a summary of their email correspondence that would indicate the extent of support or opposition to it.

The Wisconsin Citizens Media Cooperative got a hold of the official committee report from another legislative representative and reported that 815 people registered in opposition while 149 did so in support. The numbers are stunning, especially considering that the 149 supporters include the bill’s authors, employees at the mining company for whom the bill was written, and a large number of Republican legislators. The vast majority of the remainder of those in support of the bill were bussed in and bought lunch by the Koch Brothers’ Americans for Prosperity.

This is but one example of the way that citizens’ voices are ignored and then silenced by those making decisions on behalf of the entire state. This is why people continue to show up to the rotunda to sing at noon: To make sure that legislators and anyone else who happens to be in the area know that people will not just roll over for that kind of authoritarianism. They continue to express their political opinions whether or not they are reflected in legislative decisions, and along the way many have found deep satisfaction and joy in doing so, overcoming alienation and despair about the current state of affairs by singing songs that embody ethical values and visions of the world that are based on something other than greed and the profit motive.

For Michael Kissick, suspending his participation in the Sing Along has been a deeply painful personal experience. He mourns the loss of camaraderie with others and the personal sense of release that comes with speaking one’s mind in public, but he is not willing to expose himself to arrest. This prior restraint of his First Amendment rights is what motivated him to take legal action against Huebsch and Erwin.

Republican legislative leadership has been complaining for months about the Sing Along, saying that the capitol is a place of business and the singing disturbs them when they’re trying to work. ACLU attorney Larry Dupuis responds, “If it’s truly too loud, they actually have a regulation that limits a volume of speech, so they don’t need a permit system to deal with that.”

Dupuis also refers to language in the State of Wisconsin’s application to the National Registry of Historic Places to list the capitol in a brief requesting a preliminary injunction on the enforcement of the access policy by the capitol police:

“Whereas some statehouses are maintained apart from the urban fabric, the Wisconsin Capitol Rotunda functions, both literally and symbolically as a city center and is fully utilized as a public space to which all have claim.”

Dupuis said that there may be a preliminary hearing in early March if Huebsch and Erwin don’t simply stipulate to the facts in the complaint as he presented them. The lawsuit asks for a preliminary injunction on citations and the permitting scheme, as well as a finding by the court that the access policy is unconstitutional, which would strike down the policy for good.

Rebecca Kemble reports for The Progressive magazine and website.