Friday’s lunch hour saw a larger and more energetic crowd than usual in the Capitol rotunda, as Madison residents showed up to join the Solidarity Sing-Along, hang banners, and hold signs in defiance of recent arrests.

After new Capitol police chief David Erwin vowed a crackdown on protest activity in the building last week, 12 people were arrested Wednesday and Thursday for holding signs without a permit, a violation, police told arrestees, of section 2.07(2) of the Wisconsin Administrative Code, which reads:

No displays, signs, banners, placards, decorations or graphic or artistic material may be erected, attached, mounted or displayed within or on the building or the grounds of any state office building or facility without the express written authority of the department.

Stacy Harbaugh, communications director for the ACLU of Wisconsin, was at the Capitol Friday as a legal observer, along with several attorneys from the National Lawyer’s Guild and other groups. She said turnout exceeded 150 people, and that police presence was limited to five or six officers for most of the afternoon. There were no arrests, she said.  “We were all ready to witness a big crackdown,” she said. “Today was exciting in a really good way.”
However, she said, the future of political expression in the Capitol rotunda was still murky, and the police had still not communicated important details about how they planned to treat different types of speech. “We need a little bit more clarification on what to expect,” Harbaugh said.

Protesters saw a legal ray of hope Thursday, in the text of Dane County Circuit Court Judge Frank Remington’s decision to dismiss a lawsuit brought by six protesters against the Department of Administration last year. Those protesters had also been arrested for holding signs. Although the dismissal of the lawsuit meant no relief for that particular case, Remington touched on the question of whether a person holding a sign counts as a “display” under the code, and ultimately rejects it.

“The term "displayed" implies something like afreestanding 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,” Remington wrote. “...it is clear that the rule did not apply to the Plaintiffs' actions because their signs were not "displayed," but instead were held in their hands.”

Jeff Olson, whose firm represented the protesters in the suit dismissed Wednesday, said future lawsuits against the administrative code as a whole could still be successful. The problem this time was in the structure, not the validity, of the arguments.

“For future litigation, we’re going to have to be careful to pin the state down as to what provision or provisions of the administration code they pretend to be citing persons under,” Olson said. But he said the comment on displays, though not an actual injunction against arrests, should still have “an immediate impact on enforcement.”

In an article for Daily Kos, one protester reported seeing the Capitol police leave for a meeting around noon on Thursday, after which no further arrests occurred, and speculated that it was related to the decision. The Capital Times reports that Capitol police would not comment today, and messages Dane101 left with spokesperson Stephanie Marquis requesting comment have not been returned.

Olson said his original challenge to the permit requirement for signs had rested on two premises: one, that while “time, place, and manner” restrictions are constitutional, requiring a permit for a sign was invalid. “It requires a permit for something so trivial that there’s no governmental interest  served,” he said. In addition, the permit requirement was an invalid prior restraint (restricting speech before it has been expressed) because there were no objective standards for who gets permission for a sign, and no time limit for Capitol police to either issue or deny a permit--in other words, they can sit on a permit request as long as they like. “That’s a way of denying the request without affirmatively denying it,” Olson said.

It was still possible, Olson said, that Capitol police would find other rationales for issuing citations to people with hand-held signs, and free-standing signs such as banners hanging into the rotunda from the first floor could still qualify as exhibits or displays.

But in the case of threats (reported by the Progressive) that protesters who attempt to enter the building with signs in the future might be charged with disorderly conduct, Olson said a recent decision in the Racine County Circuit Court (see file attachment) might also have “persuasive power” in future court cases: In State of Wisconsin vs. Phillip Haney, a man holding a sign at an event on private property was charged with disorderly conduct. Judge John Jude dismissed the charges, however, because prior to a confrontation with event security over the sign, the man’s actions did not “dispute or disturb the proceedings.”

But can the Department of Administration change the wording to include signs held by people, or t-shirts? Absolutely, Olson said. In which case, it would be up to another lawsuit to challenge the constitutionality of the restrictions--which, he thinks, would have the same problems he listed for the original rules.

Of the DOA rules in general, Olson said there might be other grounds for legal challenges besides the ones his office brought about previously. Those rules, created in 1979 but only recently written out, require groups of as few as four people to get permits to rally or demonstrate, 72 hours in advance of the event.

“There’s no question that the Capitol has a right to require a group of some size to have a permit before staging a group event inside the Capitol,” Olson said. But while the exact number might depend on a variety of factors, including the intended use of the area and potential interference with ongoing daily business, he said, “I think it’s probably a lot bigger than four.”

In the rotunda Friday, Rep. Chris Taylor, D-Monona, addressed the crowd, saying Erwin had walked out of a meeting with her that morning in which she had asked him to provide those details. In a letter sent to Erwin later in the day (see file attachment), she said she had “grave concern” that Erwin was not giving the public adequate notice about what conduct he was prohibiting or under what legal authority. Like Senate Majority Leader Mark Miller last week, she said she was concerned with the lack of dialogue between the Capitol police and other groups that operated out of the building, including the Legislature. 

“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,” Taylor said.

Full disclosure: Stacy Harbaugh sits on the Dane101 board of directors.

Photos by Wendi Kent. More of her work can be found on her website, as well as her Flickr page.

Christie Taylor

Contributor

Christie Taylor (@ctaylsaurus) covers science, environment, and, depending on the season, state politics for dane101. She verbs a lot of nouns, including rollerskates, radio, and Kurt Vonnegut. A Madison native, she's not sure she'll ever quite manage to leave Wisconsin, and that's just fine by her. Contact her at christie@dane101.com.