Thursday, December 29, 2011

Wendy McElroy: Wisconsin invoices the exercise of rights

  Despite a proclaimed opposition to new taxes, Wisconsin Governor Scott Walker has advanced a policy that amounts to a new and draconian tax. People will have to pay the state for the “privilege” of free speech and assembly. To exercise those rights in or outside state facilities will entail permits at least seventy-two hours in advance and potentially prohibitive fees. The policy took effect on December 8 and is expected to be completely phased in by December 16.

  State permission for various types of protest has long been required in the form of permits; in recent years, some locales have further limited freedom of speech by restricting it to “designated areas.” But Walker's measure goes a leap or so beyond the standard government policies on protests.

  The new policy defines a “protest group” as a gathering of four or more people within a state facility and one hundred or more outside a state building; both gatherings require permits for “all activity and displays.”

  The most controversial aspect of Walker's bill, however, allows authorities to charge groups for police security and for the cost of clean up. The security fee would be $50 per hour per officer at the capitol building, the state seat of government. Elsewhere, it would depend on the costs billed by police to the state; presumably, pepper spray would be extra.

  Liability insurance (or a bond) and an advance payment to the police could be demanded as part of the permit-application process. Freedom of speech and assembly is now expensive in Wisconsin.

  The Wisconsin State Capitol building is specifically named in the bill. The capitol has been besieged by protesters since February, due to Walker's championing a law to limit collective bargaining for the state's public unions. If the protesters are required to pay $50 an hour per security officer, then those demonstrations are likely to diminish.

  Moreover, punitive after-costs could blunt the protesters' future enthusiasm. The Milwaukee-Wisconsin Journal Sentinel (Dec. 1) commented,

          Any damage or cleanup after a demonstration could be charged to organizers. During the court fight earlier this year over access to the Capitol, Walker's administration said the demonstrators had done $7.5 million in damage to the building with the signs and other wear and tear. But almost immediately the administration sharply backpedaled from that claim, conceding the damage was significantly less.

  Even “significantly less” than $7.5 million would likely be considerably more than protest organizers would be willing to shoulder. And the extra law-enforcement costs of this year’s demonstrations are estimated at $8 million.

  Small protest groups in particular will be discouraged. For example, a labor chorus named the Solidarity Singers meets regularly in the rotunda of the capitol building to sing in protest of Walker's policies; the chorus is now uncertain about future performances.

Constitutional objections

  The First Amendment to the U.S. Constitution states: “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”

  The Fourteenth Amendment guarantees constitutional rights at the state level.

  Moreover, Article I, Section 3 of the Wisconsin Constitution states, “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.” And Article I, Section 4 states, “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.”

  Walker's policy seems to violate not merely the United States Constitution but also the Wisconsin Constitution. Unfortunately, governments have legally established a “right” to preemptively regulate peaceful protests. The Journal Sentinel quoted First Amendment lawyer Bob Dreps as acknowledging that the state can legally put some restrictions on the “time, place and manner” of free speech. Nevertheless, the rules “still have to be reasonable on their face.” And so the question becomes whether Walker's regulations are reasonable.

  The new policy on protests is unreasonable to an extreme and leaves broad ground for legal challenges.

  For one thing, the policy defines a protest or rally so restrictively — four people — that it could include groups of touring schoolchildren or medium-sized families. Defining a rally as four or more people, Dreps said, was “laughable.”

  Interestingly, the U.S. State Department's “2010 Human Rights Report” excoriated the Sultan of Brunei Darussalam (a small state bordering the South China Sea) for violating freedom of assembly. The report stated,

          Under the emergency powers, the government significantly restricted the right to assemble. According to the Societies Order, public gatherings of 10 or more persons require a government permit, and police have the authority to stop an unofficial assembly of five or more persons deemed likely to cause a disturbance of the peace.

  Now Walker is imposing an even more restrictive policy on gatherings, and he is doing so as a regular requirement, not as an emergency measure.

  Another ground for legal challenge is that the policy discriminates against the poor by imposing a de facto fee both directly and indirectly upon groups who wish to voice opinions. The direct cost: it allows for the billing of police “services” that people do not wish and for which they have already paid in taxes; it also allows for a bond, insurance or other prepayment as a condition of the required permit. The indirect cost: organizers must assume unpredictable risks such as clean up even though their taxes also pay for this service. Moreover, any need for clean up could easily result from people not connected to the organization, including the police.

  Thus, the cost of a protest not only converts freedom of speech and assembly into “fee-for-exercise” rights but also silences those without resources, such as the homeless. Chris Ahmuty, executive director of the American Civil Liberties Union of Wisconsin, expressed concern specifically on this point.

  A further ground for legal challenge is the ability of state officials and the police to apply the law selectively, punishing only those whose messages are objectionable to them. Department of Administration spokeswoman Jocelyn Webster has already stated that the rules on permits would not be applied to constituents’ or lobbyists’ visits to lawmakers’ offices. Certainly, Walker's speeches or other appearances at state buildings will also be exempted.

  Ahmuty (ACLU) has also criticized the policy for leaving “too much discretion to the Capitol Police.” The police reaction does little to dispel this fear. For example, Capitol Police Chief Charles Tubbs has refused to explain whether he would arrest groups who did not comply with the new rules. When asked by the press, Tubbs replied, “I'm not going to show that hand today.”

  Thus, Walker's anti-protest policy is likely to be legally attacked as an unreasonable restraint on Constitutional rights, as discriminatory against the poor, and as an invitation to selective enforcement.


  Perhaps Walker's strongest argument for the new punitive policy is the public outrage over the tax-paid clean up at vacated Occupy Wall Street (OWS) sites. And yet Wisconsin state law already provides that applicants for gatherings “shall be liable to the state … for any expense arising out of any such use and for such sum as the managing authority may charge for such use.” The new policy seems redundant on this point.

  The strongest argument against the policy is that it denies basic human rights. The Wisconsin ACLU announced its celebration of the Bill of Rights' birthday in front of the State of Wisconsin Office Building with the words “because of a new Department of Administration policy, this may be the last time we’ll be able to celebrate in this public area without a permit.”

  The Wisconsin ACLU has asked Walker to stay the policy's implementation in order to reword it. In a statement of December 14, the ACLU stated, “This week, the board of directors of the American Civil Liberties Union of Wisconsin voted unanimously to authorize appropriate legal action to challenge the new Department of Administration’s policies that restrict First Amendment rights at the state Capitol.”

  Walker has a record of not backing down in the face of opposition. A recall effort is currently underway, and the anti-Walker organizers have collected more than half a million signatures, which is more than 90 percent of the number needed to cause an election. Walker's response? A lawsuit accusing the state board that oversees Wisconsin's elections of being lax in checking that the collected signatures are valid.

  Hopefully, the ACLU will follow through on its threat to sue over the anti-protest policies. Other states are watching and nervously debating how to respond to the fresh protests that are bound to erupt with new “Occupy” projects and the downward-spiraling economy.

  About the author: Wendy McElroy is the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998). She actively manages two websites: and

  This article was published by The Future of Freedom Foundation.

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