News & Commentary

The Wisconsin State Capitol Police began ticketing protesters in the Capitol Rotunda last week for holding up signs without a permit. According to a Department of Administration spokesperson, on Monday police issued more tickets both for "unlawful display of a sign and not having a permit." The citations were served at the protesters home to "avoid confrontation and maintain order at the Capitol." Since the extraordinary events of February 2011, the American Civil Liberties Union of Wisconsin has stepped up its efforts to protect the free speech rights of all Wisconsin residents at the Capitol and our volunteer legal observers are now at the Capitol Rotunda every day during the noon hour. David Erwin, the State Capitol Police Chief since July 2012, has had a rocky start. His on-again, off-again, on-again enforcement of regulations governing events and protests in the Capitol Rotunda suggests problems. Either he lacks an understanding of our constitutional rights or is willing to abridge the rights of all Wisconsin residents to peaceable assembly and free speech at the Capitol. Monday's tickets are unconstitutional. It is ludicrous to say that it is illegal to hold up a sign or that groups as small as four people need to apply for a permit 72 hours in advance if they are promoting any cause. The police served the tickets at the protesters homes. This suggests that the police know the identity of many of protesters who regularly exercise their rights at the Capitol. It also suggests that this new enforcement effort is a high priority for the Capitol Police. The ACLU believes that there are better uses for the Capitol Police force's limited resources. In a related matter, in an interview posted on wisconsinreporter.com on September 10, 2012 and on the eve of the anniversary of September 11, remarks from Chief Erwin have exposed another problem. According to the site, Erwin said, "And so we have a group of people that come here, and last week they were holding signs and they are part of this group that, for lack of a better word, are terrorizing people at this Capitol." It is unclear what group of people he's talking about; it may just be people who allegedly are disrespectful or call others names. Regardless, in our post-9/11 world, it is inappropriate to accuse someone of terrorizing others in this loose way. It is hard to imagine former Capitol Police Chief Charles Tubbs making such an accusation. Erwin admits that Tubbs did a great job during the large-scale protests as evidenced by the small number of arrests and the fact that no injuries occurred under Tubbs' leadership. Perhaps Erwin needs to learn how to defuse situations rather than engage in name calling.

Nevertheless, Solidarity Sing-Along participants and other free speech advocates came together inside the Capitol in a show of numbers and defiance against Chief Erwin and the DOA. Well over 100 people ringed the ground, first, and second levels of the rotunda over the lunch hour, bringing the Sing-Along inside from its usual Friday location on the Capitol grounds overlooking State Street. The Madison office of the American Civil Liberties Union of Wisconsin, which has been vociferous in its support of free speech activities in the Capitol rotunda, reported on the gathering, as did several media outlets and others. Their observations and photos of the gathering, as shared via Twitter, are compiled here.

"What happened today were individuals who went inside to use their Capitol building for demonstrations, something that could happen any time in our capitol's history," Harbaugh said. She said that while the qualification of signs under the "displays" rule would be a matter for attorneys, the incident itself spoke to the rule's requirement that groups as small as four people get permits "unreasonable and abridges their right to demonstrate and their right to go to the Capitol building and hold signs and protest the government."

Those arrested said the American Civil Liberties Union is getting involved and is looking to help them fight their citations. The protesters and their supporters, including some Democratic state lawmakers, have called police tactics heavy-handed, unnecessary and an affront to free speech rights.

(Capitol Police Chief) Erwin said he plans on enforcing a rule that requires groups of four or more to obtain a permit 72 hours in advance of any activity or displays in the Capitol. The rule was instituted in December of 2011 but has not been enforced since the American Civil Liberties Union raised questions about its constitutionality. Additionally Erwin has enlisted the Department of Justice to handle civil violations. Capitol police have issued 159 citations, ranging from disorderly conduct or resisting arrest, however 118 were dismissed by the Dane County District Attorney’s office.

Although the American Civil Liberties Union of Wisconsin declined to comment on partisan issues, spokesperson Stacy Harbaugh said the group has various LGBT campaigns at the state level. These include a lawsuit against Wisconsin Family Action and an anti-bullying campaign in Milwaukee, where the ACLU of Wisconsin has a large youth program. “While politicians at the federal level are arguing about these very important issues, there are rights that still need to be defended at the state level, and we are involved with that,” Harbaugh said.

Karyn Rotker, senior staff attorney for the ACLU of Wisconsin, said she learned last year that agencies such as the Transportation Department are required to have an annually updated plan for complying with Title VI. But when she asked for the plan, she found it was dated 2004.

On August 28, Wisconsin State Senator Mark Miller sent a letter to Capitol Police Chief David Erwin expressing his concerns that the citizens of Wisconsin should have a free and open access to the Capitol building. In a letter of response by Capitol Police Chief David Erwin on August 30, Chief Erwin outlines why he believes permit requirements for political protests are reasonable.

This isn’t the first time WisDOT has been sued over this very issue.  A settlement was reached in 2000, which arose out of a similar lawsuit regarding I-94 corridor planning.  According to The ACLU of Wisconsin, the WisDOT agreed it would “continue to use its best efforts to expand and improve transit service within the Milwaukee Metropolitan Area to enable transit dependent residents of Milwaukee to better access areas of job growth.”  But where are the tangible results of that promise?