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Wednesday, July 30, 2014 |  Madison, WI: 76.0° F  A Few Clouds
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The constitutionality of new rules at the Wisconsin Capitol

So what is the constitutional status of the new regulations?
So what is the constitutional status of the new regulations?
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The recent free speech controversy at the state Capitol has left many Madisonians perplexed. Based on new rule codifications regulating speech on government property promulgated by the Wisconsin Department of Administration last December, police have recently arrested several protesters for holding small demonstrations without a permit.

Such free speech controversies often generate strong feelings, especially when the underlying subject matter of the speech -- in these instances the validity of Gov. Scott Walker's policies -- is highly contentious in the first place.

The controversy, which has sparked some national attention, poses important questions about the proper dimensions of government regulations regarding the "time, place and manner" of public speech. Critics of the new rules fear governmental oppression of their dissent, whereas supporters cite the need to balance free speech and public order, the latter of which includes the rights of the general public and government workers to conduct their business without interference.

Given the First Amendment stakes and the intensity of public concern, it helps to put the controversy in the perspective of First Amendment legal precedent. Perhaps not surprisingly, precedent both supports and challenges the new policies, depending on the facts. As in many First Amendment skirmishes, the devil ultimately lies in the details of the policy and its administration.

In a nutshell, the new policy requires all groups of four or more persons to obtain permits at least 72 hours in advance of speech acts and displays taking place inside state buildings, or for demonstrations by 100 or more people outside the Capitol. The policy relaxes the permit requirement in cases of "spontaneous" protests responding to issues that arise on the spur of the moment. No charges are required for the permits themselves. The policy also prohibits harming state property, including attaching signs to it.

The most controversial part of the new policy holds that protesting groups "may be held liable for law enforcement expenses arising out of the event," and "may" be required to pay in advance. Such liability would attach if "additional officers" are assigned due to the size of the event or the possible occurrence of disruption. If additional costs arise because of counter-demonstrations, then counter-demonstrators would bear the liability. The policy also allows the state to require an advance payment for liability insurance or a bond to cover consequent damages that might arise from a demonstration.

So what is the constitutional status of the new regulations? The Supreme Court has consistently upheld time, place, and manner regulations, including the requirement of permits, so long as they do not commit any of the following First Amendment sins: They must not be pretexts or excuses for deterring or punishing speakers on account of the speakers' views (the state must be neutral regarding the content of speech); they must not limit speech any more than is necessary to achieve the speech-neutral state interest; and they must not be so vague as to allow the state too much discretion in applying the rules, for undue discretion provides an opportunity to engage in viewpoint discrimination.

In addition, the Court has allowed charging demonstrators fees. In Cox v. New Hampshire (1941), for example, the Court accepted permit fees of up to $300 -- that's $4,800 in today's dollars, accounting for inflation. Though Cox has not been overturned, the Court indicated more suspicion of high permit fees in later cases. In 1978, it confirmed a lower federal court ruling that invalidated an expensive insurance requirement in the famous Skokie/Nazi free speech controversy in Skokie, Illinois (Collin v. Smith). The federal court concluded that having to secure up to $300,000 in insurance would be unobtainable for controversial groups, thereby effectively barring them from speaking.

Later, in Forsyth County v. The Nationalist Movement (1992), the Court expressed the operative legal test for time, place and manner regulation, saying it "has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade or rally. Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. Further, any permit scheme controlling the time, place and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication."

In Forsyth County, the Court struck down the county's regulations requiring permits and a fee to cover costs (up to $1,000) for two reasons. First, the rules in that case were vague, giving the authorizing administrator too much discretion in determining the fee. "The administrator is not required to rely on any objective factors." Second, the amount of the fee assessed was related to the administrator's determination of how controversial the speech would be, thereby making the fee depend upon the content of the speech.

How do these standards apply to the new Wisconsin Capitol regulations? The requirement of permits may not be a good idea for groups as small as four, but it is probably constitutional so long as such permits are easy to obtain and there is no discrimination in granting them. Going through a legitimate permit process is a sign that the would-be speakers respect the rights of all citizens who use the Capitol besides themselves. This is especially so if the permit is free or low cost. Given the political tensions present, however, we should keep our constitutional guards up regarding how these permit requirements are applied.

The provisions authorizing the state to charge demonstrators for extra costs and to require insurance bonds could encounter constitutional problems, however. As I read them, the procedures in this area are not spelled out very clearly, thereby opening the door to problematic administrative discretion down the line. And what if the costs effectively bar some groups from speaking?

No doubt these and other questions will ultimately be answered by federal courts, as demonstrators have already declared their intent to challenge the new rules in court. The constitutional devil will lie in the details.

Donald Downs is the Alexander Meiklejohn Professor of Political Science, Law, and Journalism at UW-Madison, as well as the Glenn B. and Cleone Orr Hawkins Professor of Political Science.

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