Update: First Amendment Rights Affirmed in Glendale, Bayshore Mall

Collecting petition signatures and picketing on public sidewalks are classic examples of freedoms protected by the First Amendment. But Bayshore mall security ordered people who were collecting signatures from voters to recall the Governor and Lt. Governor on the sidewalks in front of the mall to leave. In another example, someone protesting the business practices of one of the mall’s merchants was arrested for picketing on the sidewalk. During the recall petition season, there were discussions around the state about where people had the freedom to collect signatures, including in the Milwaukee suburbs.

After mall management claimed it could control First Amendment activities because it “owned” the sidewalks along Port Washington Road and Silver Spring Drive, the American Civil Liberties Union of Wisconsin Foundation and volunteer attorneys took action to advocate for the rights of petitioners and picketers.

“A sidewalk is a sidewalk,” said Jeffrey Perzan, who was ordered to move by Glendale police while he collected recall petition signatures on the sidewalk along Port Washington Road. “The First Amendment protects my right to persuade my neighbors and the public to take action in the public places where they already congregate.”  Another protester, Lincoln Rice, picketed against Trader Joe’s business practices on the sidewalk outside its store and was arrested and issued a trespassing citation.

In December, the ACLU of Wisconsin opposed the actions by mall management and city police because every court to consider similar questions has held that private businesses cannot insulate themselves from criticism by artificially designating public sidewalks as private property. Despite a letter from the ACLU, mall security and Glendale police ordered Mr. Perzan to move from an allegedly “private” sidewalk along Port Washington Road as recently as January 6, 2012.

With the help of attorney Jim Gramling, citations were dismissed and negotiations with Bayshore Town Center and the City of Glendale  resulted in an acknowledgement of citizens’ First Amendment rights to picket and petition on public sidewalks.

“This is a victory for the most basic form of free speech,” said Gramling.  “Sidewalks and parks are places where people traditionally have exchanged ideas and tried to persuade their neighbors to adopt their views. And unlike other forums for expression, like television or the radio, they can be used without charge, so anyone, rich or poor, can seek an audience there.”

The perimeter sidewalks where First Amendment activity is permitted include:  (1) the entire sidewalk on the north side of and parallel to Silver Spring Drive from Port Washington Road on the west to Lydell Avenue on the east;  (2) the entire sidewalk on the east side of and parallel to Port Washington Road from Silver Spring Drive on the south to Carrigan Drive on the north; and (3) the sidewalks on the west side of and parallel to Lydell Avenue from Silver Spring Drive on the south to Carrigan Drive on the north.

Although some portions of these sidewalks are owned by private entities and other portions are owned by the City, assembly and other expressive activity, as long as it is peaceful, and does not in any way disrupt access, or impede public health, welfare or safety, is lawful on all of these sidewalks, regardless of their ownership. The mall has not agreed to allow protest on the interior streets and sidewalks of Bayshore Town Center where the public gathers. Anyone attempting to protest in these interior spaces may be subject to arrest and/or citation or prosecution.

In addition to Attorney Gramling, Attorneys Holden Brooks and Michael Halfenger of Foley & Lardner in Milwaukee volunteered their time in this case.

This story was also covered on dane101.com and in the Proof and Heresay blog of the Milwaukee Journal Sentinel with a lively comments section.

Help support the civil liberties news and opinion you get on Forward for Liberty. Join the ACLU of Wisconsin today or make a tax-deductible donation to the ACLU of Wisconsin Foundation. Your contribution keeps Forward for Liberty, action alerts via email and social media, and other nonpartisan watchdog efforts going.

Frequently Asked Questions About Voting Rights: June 5 Recall Elections

Photo ID is not required at polling places on the June 5, but the potential for confusion over new voting rules in Wisconsin could be a problem on the coming recall Election Day. The ACLU of Wisconsin Foundation is distributing nonpartisan factsheets in response to voters’ questions.

Download the ACLU of Wisconsin Foundation’s Voting Rights Factsheets on our website (PDF):

You Have the Right to Vote: Wisconsin

Conozca Sus Derechos de Voto: Wisconsin

Students: You Have the Right to Vote!

During the most recent election, attorneys staffing the Wisconsin Election Protection hotline answered questions about photo ID requirements, signing poll books, registration requirements, and changing polling places due to redistricting. On June 5, voters can call 1-866-OUR-VOTE to report problems, ask questions or get help to protect their right to vote.

The ACLU of Wisconsin Foundation is distributing nonpartisan “Know Your Voting Rights: Wisconsin” guides to clarify some of Wisconsin’s new voting rules. As part of the national ACLU’s “Let Me Vote” campaign, the ACLU will be leading a Voter Empowerment Campaign in Wisconsin and across the country to educate citizens about their rights and help them overcome the unfair barriers states have created to suppress the right to vote.

The one-page document describes answers to the most commonly asked questions about how to vote in the June 5 recall election including early and absentee rules. More information about the special requirements for student voters can be found on the Government Accountability Board’s website. A full list of municipal clerks is also available online – go directly to clerks for your absentee ballots, individual questions about the status of your registration or if you have problems with voting early.

As noted above, photo ID is NOT required for the Recall Election. Two state courts have blocked the law requiring photo ID to vote based on lawsuits filed by the League of Women Voters of Wisconsin and the NAACP and Voces de la Frontera; the state is appealing those decisions. The federal lawsuit that the ACLU of Wisconsin Foundation, the national ACLU and the National Law Center on Homelessness and Poverty filed in December, claiming that the photo ID law unconstitutionally burdens voting rights and discriminates against African-American and Latino voters, is also pending.  

Read more about the ACLU’s federal lawsuit against Voter ID online: http://www.aclu.org/voting-rights/frank-v-walker-fighting-voter-suppression-wisconsin

Your Right to Record Police: News on US DOJ Opinion in Baltimore Case

Anyone reading the news about the lawsuit brought by the ACLU of Maryland over the right to videotape police activity? People have the right under the First Amendment to photograph or videotape the activity of police in public places, including when they are placing people under arrest. After Christopher Sharp witnessed his friend being arrested, he used is cell phone to videotape what he thought was aggressive police behavior. Baltimore police then confiscated his camera and deleted all of his videos, including ones of his family.

Most recently in Wisconsin, activists at the State Capitol have received citations for recording arrests of other activists peacefully holding signs in the legislative galleries. State troopers and Capitol police should not point to rules barring photography as a justification for arresting people for documenting arrests.

The latest news is that the federal Department of Justice is standing up for your right to record. Here is more from Gabe Rottman of the national ACLU’s Washington D.C. Legislative Office (adapted from the ACLU’s Blog of Rights):

We haven’t pulled punches in our criticism of the Holder Justice Department, so it’s especially important that we give credit where credit is due. In support of an important case brought by the ACLU of Maryland defending the right to record, the DOJ’s Civil Rights Division forcefully and unequivocally endorsed our view in an unusual (but welcome!) 11-page letter to the Baltimore Police Department.

The letter provides extensive guidance in the context of a settlement conference in a suit against the BPD alleging that Baltimore police officers confiscated and deleted video from the plaintiff’s mobile phone after he used it to record officers arresting his friend. The DOJ had filed a “Statement of Interest” earlier in the case, urging the court to find a First Amendment right to record the police, and a violation of the Fourth and Fourteenth Amendments when the police seize, search, and destroy recordings without a warrant and due process. As the DOJ explained there:

The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.

The DOJ’s move is particularly welcome given what promises to be a spring and summer of protest around the country including last weekend’s NATO summit in Chicago and significant protests expected among other events, including the GOP and Democratic presidential nominating conventions in Tampa and Charlotte, respectively.

At all of these events, protesters, the press, and bystanders alike will be carrying sophisticated smartphones that permit high-quality video and audio recordings of police activities. Not only will this monitoring heighten trust in the authorities, it will discourage police abuse and provide a record of any such abuse (which protects both law enforcement and protesters alike). Additionally, and importantly for folks following H.R. 347, the right to record helps document any attempt by the Secret Service and other law enforcement agencies to discriminate against protesters because of the content of their protest (think opponents of the Afghanistan war or Tea Party members), or to sequester inconvenient protesters in “free speech zones” far away from the cameras.

This issue was also echoed in a recent New York Times editorial supporting our right to record.

In Wisconsin, if you have had your camera confiscated by police or if you have been the subject of harassment or intimidation by police over recording their public activity, contact the ACLU of Wisconsin’s legal department to file a complaint. Citations against protesters documenting arrests at the Capitol have been dropped, but rules drafted by the Department of Administration and by the state Senate and Assembly relating to public spaces in the Capitol remain a concern. The outcomes of the June 5 recall election may make a significant impact on how the Department of Administration will recognize free speech rights at the Capitol in the future. And a legislative solution is needed to have gallery rules evolve to include non-disruptive uses of cell phones including cameras, video and texting.

TAKE ACTION: Sign on to the ACLU’s letter to US Attorney General Eric Holder urging the US DOJ to protect our right to record, not just in Baltimore, but across the country. Sign on to the letter here: http://bit.ly/KyNDVQ. Please share this action widely.

PHOTOGRAPHERS RIGHTS: http://www.aclu.org/free-speech/know-your-rights-photographers

Students CAN vote in Wisconsin this summer – How to be prepared

Students: Download a PDF of a student voting rights FAQ online.

Recall Election is Tuesday, June 5, 2012:  Photo ID is NOT required to vote in the recall election.

You can vote in Wisconsin in the June 5 recall election even if you’re going out of state or away for the summer, as long as you consider Wisconsin to be your “voting residence” and intend to return here.  Of course, students can only vote in ONE place!  (Registration info below.)

Your “voting residence” can be either your college address or your family’s home address.

• If your family’s home address is your voting residence: You can register (even on Election Day) and vote in the recall election at the voting location for your family home as long as your family lives in Wisconsin and has lived in that home for more than 28 days.

• If college is your voting residence and you are not moving (or you move before May 8): You can register (even on Election Day) and vote in the recall election at the voting location for the address you’ll be at on June 5.

• If college is your voting residence and you are moving between May 9 and June 5: You can register and vote in the recall election at the polling location for your May 8 address. So the polling place that corresponds to the address/dorm you lived in until at least May 8 is where you vote on June 5.

If college is your voting residence and you are leaving for summer vacation:

• Consider voting “early absentee” before you leave for summer vacation.  From May 21-June 1, you can register and vote “early absentee” in person at the clerk’s office for your college address (even if you are moving between May 9 and June 5).  Most clerks’ offices are only open during the week, but some will be open Memorial Day weekend – call your clerk for details (http://gab.wi.gov/clerks/directory).

OR

• Register before you leave for summer vacation at the clerk’s office for your college address and ask to have an absentee ballot mailed to you at your summer address.  (It must be postmarked by June 5 and the clerk must receive it by 4pm on June 8.)
  

To register to vote: 

• You can register to vote anytime between now and the recall election on June 5.  You can even register at the polls on Election Day.

• If you register at your clerk’s office or with a Special Registration Deputy before May 16, you don’t need proof of your address.

• If you register after May 16 or on Election Day, bring a document with your name and voting address. This must be: a university photo ID along with a university fee receipt or list of dorm residents; a driver’s license; a state ID; a recent utility bill (electric, cell, phone, cable, etc.); a lease; a bank statement; a pay check; an employer ID card; or a government document or check.

• If you have a Wisconsin driver’s license or state ID, bring it to put the license/ID number on the voter registration card. (If you don’t have a license/ID, use the last 4 digits of your social security number.)

Questions or problems? Call 866-OUR-VOTE on Election Day. Like Wisconsin Election Protection on Facebook or follow @EPWisco on Twitter to share your stories, questions and concerns!

Updated: 5/4/12