ACLU of WI: DOA Must Rewrite Rules Restricting First Amendment Activity at Capitol

Today the ACLU of Wisconsin issued a statement regarding continued objections to the state Department of Administration’s new restrictions on protest rights at the Capitol and said the rules may subject the state to legal action. 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. This month, the Walker administration’s DOA staff conducted an “education period” which officially ends on December 16th, leaving concerned citizens unsure of how the new restrictions will be enforced.

“Since the first DOA information session, unanswered questions about the constitutionality of these new rules as well as Capitol Police enforcement and staffing policies continue to pile up,” said ACLU of Wisconsin Executive Director Christopher Ahmuty. “Thursday is the 220th anniversary of the ratification of the U.S. Bill of Rights and Wisconsinites will remember that our treasured First Amendment rights must be protected at the Capitol. The Department of Administration needs to re-visit these policies and remove anything that will not withstand a constitutional challenge.”

While the ACLU of Wisconsin recognizes that reasonable time, place and manner restrictions on Capitol building, grounds and other state facilities’ use are permissible, the new policies are not reasonable. The permitting and liability scheme will have the effect of chilling First Amendment activity at the Capitol. The policies also will lead to arbitrary decisions by the DOA and law enforcement regarding who may exercise their rights to demonstrate and petition their state government.

Its flaws include, but are not limited to, the following:

• Permits are required of groups as small as four individuals.
• State bureaucrats have too much discretion to assign liability or limit permits to demonstrators.
• Further, state bureaucrats can hold groups organizing demonstrations liable for the actions of others beyond their control and groups will be held liable for the cost of police and custodial staffing decisions made by the state. Any advance police staffing decisions will be based on the content of demonstrators’ speech as they assess the potential for conflict with controversial or unpopular groups. This will be especially burdensome to poor or controversial groups and the state provides no waiver in such circumstances.
• The policy as written requires any individual seeking to distribute handbills or flyers to get a permit.

The ACLU of Wisconsin urges the Department of Administration to not enforce the new policies until they are rewritten to pass constitutional muster.

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