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Walker’s Wisconsin – Secret email vs. Public singing

Most of us know a little something about what appears on a timeline, a headline, or email from Citizens for a much better American system of free Democratic expression of – give ten bucks and sign the petition – Dot Org..

One of the functions of bloggers, walker wins1and there are many, is to take complex and lengthy documents and court decisions and reduce them to a crisp and tidy singular post. So, what follows is this bloggers crisp and tidy summary of the much talked about, protested and counter-protested simple rule, that actually fills a 48 page Preliminary Decision of Federal Court Judge William M. Conley Entered this 8th day of July, 2013.

The first word of notice is that the decision is preliminary, holding the strident implication: this is not the final word, and there is more to come!

Of course, Justice Conley is blind to the back story of the case at hand, and therefore omits any reference to how the new rules of assembly in the Capitol Rotunda were derived by the will of a man whose executive desk was within 30 feet of a secret email network designed to spit out and organize his Gubernatorial Campaign and landed his closest operatives, who employed the secret network, with indictments, probation, and jail.

That said, and although it has no bearing on the case at hand, the opinion rides the line between the value of spontaneity vs. planned programming in the manifestation of free speech. Within thirty feet of that duality is hidden another; the attempt to tackle the sticky and yet to be resolved political hope for the future which, depending on where you stand beneath the rotunda, will the view above to souring rotunda rise to the rules allowing for open public participation or fall to those of a suburban shopping mall? Will the 1st Amendment be a vital arm of the long established “Wisconsin Idea” or will it become a victim of another short sighted “Walker Reform”?

And we were lead to believe this is about a simple permit?

Judge Conley’s preliminary opinion begins with observation that open communication within a public space is wonderfully suggested by the architecture and the history of the rotunda space itself:

National Historic Landmark, which was granted on January 3, 2001:The soaring rotunda of the Wisconsin State Capitol is designed to induce its citizenry to be, as individuals, among the “resources of Wisconsin.”

Whereas some statehouses are maintained apart from the urban fabric, the Wisconsin Capitol Rotunda functions, both literally and symbolically, as a city center and is fully utilized as a public space to which all have claim.

Principal architect George B. Post designed the rotunda to be the center of public interaction among the three branches of state government, the county and city…

Historic Landmark Nomination 2001 and the “Wisconsin Idea”

The preliminary opinion defines how the historic landmark nomination relates to the “Wisconsin Idea”

Indeed, the Nomination argues persuasively that the design was intended to embody Wisconsin’s then-contemporaneous “Progressive”movement, articulated by the state’s governor, Robert M. La Follette, Sr., as the pursuit of fair and open government informed by an educated, politically-involved citizenry and the “Wisconsin idea.”

And then again…

As articulated by La Follette’s University of Wisconsin classmate, colleague and later University President, Charles Van Hise, the Wisconsin Idea meant for the University that “the boundaries of our campus are coextensive with the boundaries of our state.A. Hove,The University of Wisconsin: Pictorial History70 (UW Press 1991).

Yes! Unity, with boundaries of the University coextensive with the boundaries of our state. Open government informed by an educated, politically-involved citizenry. The Wisconsin idea!

The Wisconsin Idea as suggested from the Conley opinion P. 8:

The 1998 version of Adm 2 allows the Department of Administration, “as managing authority of the state office buildings and facilities” to “permit building and facilities to be used . . . for the purpose of governmental business, public meetings for the free discussion of public questions, or for activities of a broad public purpose” subject to reasonableness considerations.

And then came Walker and his secret email network

The Wisconsin Idea as defined and applauded by Robert La Follette and University President, Charles Van Hise, as a Wisconsin Idea of the people, held for years and allowed for the rotunda to serve a broad public purpose in good times and bad, through the administrations of all stripes. Doyle, McCallum, Thompson, and a long line of names going back to the completion of Capitol Rotunda in 1917!

And then came Walker…

Justice Conley Prelimary Opinion p.9

at §2.04(1).) Members ofhomework the public seeking to use the building for such activities are instructed to “complete a written application to the department at least 72 hours in advance.”

2.04(2).) Beyond this, the rules provide no guidance as to what size or type of activity triggers the permit requirement.

As a result of the Walker Administration’s disapproval of the people’s honest reaction to his policies, emergency changes were ordered that shut down Capitol.Even David Obey, 7th District Representative since 1969, was refused entrance: “I’ve been coming to this building since 1958 and I’ve never been denied access,” Obey stated. The initial shutdown was relaxed by an injunction, and the Walker Administration was forced to step back, only to come up with new rules limiting public expression of the Wisconsin Idea. Arrests were made throughout the Capitol Building, with special focus on the Assembly Gallery, where one young woman (pictured above) was arrested for doing her homework. Note that if you go to search the “Obey” and “Homework” incidents, you will find little notice from the major media of Wisconsin. The lawsuit of plaintiff Michael Kissick, who would like to participate occasionally in an informal event known as the “Solidarity Sing Along”, and who filed suite against the new administrative polices, has its deep roots in the two year of history of the Walker Administration’s attempt to replace the Wisconsin Idea with a Walker reform. No. It is not about refusal to get a permit.

Justice Conley preliminary opinion p. 9

When Kissick filed this lawsuit, the operative law governing the Capitol was Adm2 (last revised in 1998), as interpreted by the Access Policy (last revised in December
2011). However, on April 11, 2013, just days before the court’s preliminary injunction hearing, the state approved “emergency” modifications to Adm 2, altering some provisions that are directly relevant to Kissick‟s claims.

Outlaw of “spontaneous events”?

Is it really possible to even ponder attempting to outlaw spontaneous events? Isn’t this like attempting to eliminate the actions of God and quantum physics? No string theory in the Capitol Rotunda! The definition of spontaneous events reads more like a science fiction novel than a rule of law: “…response to an unforeseen triggering event…”?

Justice Conley’s Preliminary Opinion p. 9 & 10

(3) “spontaneous” events, defined as “any gathering of people for the purpose of actively promoting any cause, whether by conducting a picket, parade, demonstration or the like” in “response to an unforeseen triggering event that has occurred within the preceding three calendar days”;

The Policy gives the Capitol Police responsibility to grant or deny permits, assess law enforcement fees to permittees, and decide when such fees will be charged in advance.

I am not lawyer, but have a life-long experience in pursuit of capturing the illusive butterfly of the intuitive moment through human improvisation, and my reading of “spontaneous events” passage is that it is an exercise for a poet and not a judge or legislator, and better answered in poetry before any legal decision – or best answered, dare I say, with the lyrics of a song?

Things are going to slide, slide in all directions Won’t be nothing Nothing you can measure anymore

LEONARD COHEN – THE FUTURE LYRICS

Parsing the numbers constituting “spontaneous”

So what is the magic number?

(4) any event on the Capitol lawn expecting fewer than 100 people; and (5) any rally (meaning a “gathering of people for the purpose of actively promoting any cause”) inside the Capitol consisting of fewer than four people. (Dkt. #51-3, §§ I.B, I.G, II.A, III.J, IV.) The Policy gives the Capitol Police responsibility to grant or deny permits, assess law enforcement fees to permittees, and decide when such fees will be charged in advance.

This is really about the same old thing. The big one. It’s about the Wisconsin Idea coming up against the Walker reform: curtailing collective bargaining for most public workers. Even though the mass expression of the people to uphold the Wisconsin Idea has occurred periodically since 1917, the Walker Administration will not allow public spontaneous expression of the Wisconsin Idea to erupt within the Rotunda ever again.

Your servant here, he has been told To say it clear, to say it cold It’s over, it ain’t going Any further

LEONARD COHEN – THE FUTURE LYRICS

But don’t take my word for it – a wonderfully concise paragraph actually appears in the Judge Conley Preliminary Opinon detailing the evolution of the “Solidarity Sing Along” from the February 2012 expression of the Wisconsin Idea.

Events of February 2011

In February 2011, individuals and groups from around Wisconsin gathered in Madison to protest recent legislation changing collective bargaining rights of most public employees, as well as other issues of intense public debate. Protests both inside and outside the State Capitol continued into the spring. Along with other activities, singing emerged as popular form of protest. Some of this singing became known as the “Solidarity Sing Along.” Participants in the Sing Along gathered in the Capitol rotunda at noon on most weekdays, and Kissick joined the Sing Along from time to time, when his schedule permitted. Although the Sing Along did not have a permit to gather in the rotunda, Kissick received no tickets. arrests or warnings from Capitol Police for engaging in these activities before September 13, 2012

Judge Conley notes some of the problems with the Walker Administration’s reform of the Wisconsin Idea.

Judge Conley Opinion p. 11

(1) the Access Policy unconstitutionally vests the Capitol Police with unfettered discretion over who may obtain and who must pay for permits; (2) the ordinance is an invalid prior restraint on speech; (3) the Policy is overbroad and vague;(4) the content-based distinction between rallies and other events cannot survive strict scrutiny; and (5) imposing a permit requirement on events as small as one person does not serve a significant governmental interest in a narrowly tailored way as a time, place and manner restriction on conduct.

Give me back my broken night My mirrored room, my secret life It’s lonely here There’s no one left to torture

LEONARD COHEN – THE FUTURE LYRICS

Judge Conley Opinion p. 15
Similarly, the alleged distinction between individual speech “promoting a cause” (nopermit required) and other speech (only with a permit) works direct injury to plaintiff insofar as it attempts to shape the content of his speech in the Capitol.

p.17
Under the Access Policy, the Capitol Police have been given at least five-fold decision making authority to issue or deny permits: they may deny permits outright;choose between conflicting permit Mosaic requests; require pre-payment of police fees upfront asa condition for a permit; charge permitted parties for the cost of providing extra law enforcement; and delay issuing a permitting decision for up to 30 days.

doc p. 18

There may also be room for troubling discretion in applying a factor like interfering with “the primary purpose of the building” depending upon how narrowly the business of the people of Wisconsin is defined in practice.

doc p. 20
Responding to plaintiff‟s concern about liability for staffing costs that are not”regular and normal,” defendants” counsel further represented at the preliminary injunction hearing that a proper reading of the Policy allows for law enforcement costs to be assessed only after the fact if incurred in response to unlawful activity. As for discretion to require pre-payment, § II.U of the Policy notes that “historically advance
charges have only been required . . . where a permittee has failed to pay uncontested fees.

doc p. 23
Whatever might be the risks in its application, the permitting scheme set forth in writing in the Access Policy is not primarily content-focused. To the contrary, it purports to prohibit the Capitol Police from granting or denying permits based on the content of the proposed speech.

p. 16
The thrust of the Policy is plainly directed at mediating competing uses on state property, not imposing censorship on content or viewpoint. For this reason the court does not consider the Access Policy to be a “prior restraint.”

doc. p. 26
In other words, before an individual can be punished under the Policy, the Capitol Police must give notice to that person that the event is unpermitted and that they are considered a participant. At that point, one who has been mis-identified can easily withdraw. For these reasons, the court concludes that the Access Policy’s permitting scheme does not, by reason of vagueness, reach “a substantial amount of constitutionally protected conduct.”

In the Preliminary Opinion of Judge Conley

The Wisconsin Idea shall be limited to groups of under 20

p. 40 – 41
Accordingly, the court finds that the state does have a significant interest in requiring an advance permit for every event that can reasonably be expected to attract large crowds. At the same time, the one- and four-person permitting requirements currently in place are plainly not narrowly-tailored to address that interest.

(1) it provides a shade more predictability for Capitol administrators, as they will be able to know when no other events should betaking place; (2) it allows police to anticipate a disturbance without waiting for an actual violation of a noise ordinance; and (3) it encourages groups to self-police, because those who apply for permits can be held liable for the misdeeds and law enforcement response of bad actors within their group.

Give me absolute control Over every living soul And lie beside me, baby That’s an order

LEONARD COHEN – THE FUTURE LYRICS

P. 45
Defendants point to the enormous protests that were witnessed at the Capitol in 2011 as a danger that will befall state property if they are wholly or partially enjoined from enforcing the Access Policy. No doubt these fears drove the overly restrictive permitting process for small groups the court find likely infringes the First Amendment.

In addition, as plaintiff points out, the permitting requirement as now written exempts spontaneous events, which are certainly the most challenging for law-enforcement purposes. While another protest like the one in 2011 very well might again interfere with the functioning of ordinary business in the Capitol, an injunction restricting the permitting of small groups should have nopractical effect on the policing required or the functioning of government in the Capitol’s four wings.

And now the wheels of heaven stop You feel the devil’s riding crop Get ready for the future It is murder.
LEONARD COHEN – THE FUTURE LYRICS

p.45

Severability
Two aspects of the Access Policy’s current permitting scheme are unconstitutional:(1) the preference for cause-promoting speech in the Capitol is an unjustified, content-based restriction; and (2) the permitting requirement for “events” involving as few as one person is an unjustified time, place and manner restriction. The invalidity of these provisions raises the question of whether the rest of the Access Policy can be salvaged by severing or giving a limiting construction to the invalid parts.

This is not, however, a final judgment of facial unconstitutionality, and
Case: 3:13-cv-00099-wmc Document #: 67 Filed: 07/08/13 Page 45 of 47

Give me back the Berlin wall Give me Stalin and St. Paul Give me Christ Or give me Hiroshima.
LEONARD COHEN – THE FUTURE LYRICS

p. 46

The defendants have established that some threshold is appropriate. Accordingly, the court will enjoin defendants from requiring permitting for “events” in the Capitol rotunda of 20 persons or less.

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