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New Wisconsin Capitol access policies raise First Amendment concerns
A new local coalition of civil rights attorneys has organized to respond to such issues as access to the Capitol.
A new local coalition of civil rights attorneys has organized to respond to such issues as access to the Capitol.
Credit:Kristian Knutsen

New Wisconsin Department of Administration rules about who can access state facilities and at what cost are riling everyday visitors like the Solidarity Sing Along, who have been holding forth at the Capitol since the winter, and raising constitutional questions.

One provision specifies that permits are needed for groups of four or more who gather at the Capitol or other state facility.

"You obviously have to draw the line somewhere, but four seems like an awfully small group," says Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin Foundation. Dupuis and others, including state Rep. Chris Taylor (D-Madison), say the new rules (PDF) are unclear on whether groups that lobby lawmakers at the Capitol need to obtain a permit for that purpose.

Dupuis says the ACLU's major concern centers on the new fees imposed for those seeking permits -- one for securing a permit and another if the state determines more police are needed for an event. Neither has an exception for those who don't have the ability to pay.

Dupuis says that is a problem. Fees for parades are justified because such things as street closings do require additional police. Since gatherings or protests at the Capitol do not involve such street closings, the only way for the state to determine whether a heightened police presence is necessary is to look at the "the subject matter of the speech." That, says Dupuis, would constitute content-based discrimination.

The lack of an indigency exception, adds Dupuis, is also an issue. "You shouldn't be excluded from participating in government and exercising your fundamental right to free speech based on your ability to pay, and that's essentially what [these rules] do."

Department of Administration officials defended the agency's policy Tuesday at the first of three scheduled public meetings in the Capitol basement. Deputy Secretary Chris Schoenherr and Capitol Police Chief Charles Tubbs insisted there was very little new in the rules.

"We get 400-500 permit requests a year," Tubbs said. "I can tell you this is not new."

"The fees are new," responded an audience member.

Schoenherr said that the policy is an attempt to provide more detailed instructions on access to state facilities than is provided in the department's administrative code. As for the timing, "We had a rather unprecedented time in the state of Wisconsin," he added, in which legal questions were raised and lawsuits filed.

One of those lawsuits was filed last winter by the late marijuana activist Ben Masel, who challenged the need for a permit for gatherings on the Capitol grounds. Masel died in May, but the Madison chapter of the National Organization for the Reform of Marijuana Laws has been substituted as the plaintiff in the case.

Attorney Jeff Scott Olson says he is deciding whether to file an amended complaint addressing the new regulations or to dismiss his action because the new rules are constitutional.

"I haven't come to a conclusion on what route we're going to take yet. But I understand that many of these provisions are going to be burdensome for people, and I'd very much like to continue the litigation and get some of them declared unconstitutional."

Schoenherr, at the public meeting, said he was not a lawyer and would not address "hypothetical" situations or legal questions. "Our legal staff believes what we have in this document is legal," he said.

The ACLU is calling for the Department of Administration to send an attorney to the next public meeting. "Valid questions asked by participants about how their First Amendment rights would be protected were not answered," Stacy Harbaugh of the ACLU of Wisconsin said in a news release after the meeting. "We are all left with too many unanswered questions."

A new local coalition of civil rights attorneys has organized to respond to such issues as access to the Capitol.

The Madison Mass Defense Committee, which met for the first time last week, includes local attorneys, members of the local and campus National Lawyers Guild, members of the civil liberties section of the state bar and the ACLU's Harbaugh.

"We are working to coordinate legal help and collective responses to both the Capitol protests and Occupy Madison," says Harbaugh.

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