Scott Walker’s edict restricting free speech in the Wisconsin Capitol came under fire on Tuesday during the first of three "compliance information" sessions.
The session was held in the Capitol basement by Capitol Police Chief Charles Tubbs and Deputy Secretary of the Department of Administration, Chris Schoenherr. A couple dozen citizens attended, loaded with questions.
At issue were the newly published administrative rules for the Capitol building and grounds that, among other things, require groups of four or more people to apply for permits 72 hours in advance if they are going to gather “non-spontaneously” to exercise political speech.
The rules also hold them legally and financially liable for any law enforcement or clean up costs attributed to the effects of their free speech activities. Furthermore, state law enforcement officials may not be sued for any injury or death inflicted on the protesters if the injury or death occurs in the line of duty.
Despite the title of the gathering, no new information was actually given. It should have been called the “defense of tyranny” session.
Those in attendance came with many burning questions about what behavior would be deemed “political speech,” how the new rules would be enforced, and what the penalties would be should the rules be broken. Others wondered about the statutory authority upon which these rules were made in the first place. Still more questioned the timing of the rolling out of the rules, wondering if it had to do with the soon-to-be-released handbook of work rules for state employees.
Department of Administration officials and Chief Tubbs declined to give direct answers to any of these questions, preferring to simply assert the same five points over and over again:
1) Chapter 2 of the State Administrative Code gives the Department of Administration the authority to make any rules it wants, even if the rules abridge the free speech rights of citizens;
2) The newly published rules are just clarifications of old ones and are not significantly different;
3) The rules are the department’s response to protesters asking for clarification of rules;
4) Police will use their discretion to enforce the rules, and will not give out advanced notice of the specific tactics they will use to enforce them;
5) Police will rely on gaining the cooperation of the public for voluntary compliance.
Rep. Chris Taylor, an attorney, raised questions about the constitutionality of the rules and suggested that the Department of Administration have their lawyers review them again. She seemed frustrated that Tubbs and Schoenherr were not answering specific questions: “The public has the right to know this! If you’re going to enforce policies and you can’t tell us how you’re going to enforce them that’s not fair to anyone here. They need to know how to participate politically. We have a right to know what kind of behavior you are proscribing.”
ACLU Communications Director Stacey Harbaugh raised similar points saying, “The rules are too proscriptive. There is too much discretion for law enforcement, and they come as too obvious a response to recent demonstrations.” She added that ACLU staff attorneys would be bringing these concerns to Department of Administration attorneys.
Referring to several cases brought and won against the state challenging permitting rules similar to the ones being proposed now, Leslie Peterson said, “There is already settled law that you do not need a permit to exercise free speech inside, outside, or even to amplify with our own means.” She added, “Are you suggesting that we take this to court and work it out at the taxpayers’ expense? Is the DoA really suggesting that they are going to violate settled law in order to do an illegal permit process and force us to sue you once again at taxpayer expense?”
Greg Packnett, a legislative assistant to Rep. Christine Sinicki, raised questions about the scope of police discretion asking, “Are you going to enforce equally on people who come into the Capitol saying ‘God Damn America’ and those who say ‘God Bless America?’ These rules are so broad it’s effectively impossible to enforce them consistently.”
Meanwhile, upstairs in the rotunda, Solidarity Sing Along leader R. Chris Reeder remained firm in his decision to not seek a permit for the daily singing of protest songs. Today was the 229th edition of the Sing Along, and the new rules only spur the protesters to more creative action.
Thinking ahead to the possibility of being kicked out of the building during winter, Whitney made blankets to which the following statements had been appliqued: “The Constitution Is My Permit” and “We Sing about Justice, Fairness and Peace.” Other Sing Along participants “spontaneously” joined in a dramatic reading of Carrie’s re-working of the holiday classic “How the Gov’nor Stole Christmas.”
Two more “informational” sessions are scheduled before December 16, the date the Department of Administration says they will begin enforcing the new rules. At the conclusion of Tuesday’s session, Chief Tubbs pleaded with the group to apply for a permit for the Sing Along on December 16. Their response was to create a facebook event inviting hundreds of people to join them in their non-compliance and defense of their precious First Amendment rights.
Rebecca Kemble is an Anthropologist who studied decolonization in Kenya. She serves on the Board of the US Federation of Worker Cooperatives and as the President of the Dane County TimeBank.