Do Four People Make a Rally? ACLU of WI Asks in Response to Miller-Erwin Letter Exchange

31 Aug

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.

Ultimately the ACLU of Wisconsin believes the new rules issued by the Wisconsin State Department of Administration, including the requirement for groups as few as four people to secure a permit for a “rally… for the purpose of actively promoting any cause,” are not reasonable. Particularly if the rules are applied to the Solidarity Sing Along which takes place at a reasonable time (the hours between noon and 1:00 p.m. are defined in the DOA’s rules as not being normal working hours) and place such as in the rotunda, where state of Wisconsin has long allowed the public to hold rallies of all sizes.

“Chief Erwin said the permit process has been in place for decades,” said ACLU of Wisconsin Communications Director Stacy Harbaugh. “However, I have been organizing volunteer legal observers to witness protests at the Capitol over the past six years and it has been my experience that Capitol Police have asked for voluntary compliance in filling out permits and in practice have only required permits for protests that require extra staffing, closed streets, access to building electricity and other logistical needs. There has typically been reasonable accommodation for protests large and small, planned or spontaneous.”

The Constitution allows “reasonable time, place and manner” regulations. But such restrictions on the use of space must be content-neutral. By requiring permits for “rallies” of four or more people, the DOA and Capitol Police must look at the content of the event to determine whether or not a group in the Capitol is a “rally” promoting a cause versus a gathering of four people who want to talk about where to get lunch.

In addition, any restriction must be narrowly tailored to serve a significant government interest. Chief Erwin suggests that permits are required for police to adequately accommodate public safety interests, but it is unreasonable to suggest that a group as small as four would overwhelm the police force. Further, the First Amendment requires and the DOA’s own rules allow for defined, spontaneous events. It is the responsibility of the Capitol Police to have staffing plans in place to have the flexibility to protect the safety of all announced and unannounced visitors to the building.

The participants of the Solidarity Sing Along have worked with the Capitol police and staff to accommodate multiple users of the Capitol rotunda. This relationship can and should continue to meet the needs of police to make narrowly tailored, content-neutral space management decisions.

As for the public safety concerns outlined in Erwin’s letter, we believe it is the responsibility of the Capitol Police to ensure that the Capitol building is both a safe place to work and for demonstrators to engage in peaceful speech activity in the rotunda.  To threaten to enforce a permit requirement against peaceful, cooperative protesters on the basis of safety concerns arising from the alleged actions of a few individuals would punish those engaging in protected speech activity. If criminal harassment or intimidation is occurring against Capitol workers or singers alike, it is the responsibility of police to address it, not crackdown on peaceful protest.

The ACLU of Wisconsin will continue to coordinate volunteer legal observers to be witnesses of events at the Capitol over the weekday noon hour and monitor the enforcement of administrative rules.

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