When Progressive magazine editor Matt Rothschild got arrested for using a camera in the Assembly chambers, he was wearing a sign taped to his shirt that spelled out his constitutional right to free speech and assembly, as well as his right to petition his government.
Seventeen other protesters were arrested Nov. 1, and many of them wore similar signs. Some even urged police officers to defy orders to enforce the Assembly ban on signs and cameras, arguing they did so in violation of the U.S. Constitution and state Constitution.
But the case law on "expressive behavior" in legislative galleries is mixed, says the community advocate for the Madison-area office of the American Civil Liberties Union of Wisconsin.
"Very high-level court decisions are in conflict," says Stacy Harbaugh. One court decision, she notes, says citizens should be able to videotape governmental proceedings. Another said it was enough to provide seats for the public and allow observers to take notes.
Posted outside the Assembly chamber, the rules, which predate this year's protests, ban such items as laptops, cameras, signs and placards "for reasons of safety and decorum."
Harbaugh says she knows some protesters are unhappy that the ACLU has not already filed for an injunction or launched a class-action lawsuit in response to these rules. She says her group has been monitoring protests at the Capitol since February and has worked with local attorneys to fashion a response to recent arrests. On Wednesday it released a statement (PDF) supporting "citizens' right to silently dissent and document government activity in galleries."
"There is no doubt that the Legislature has a legitimate interest in conducting its business efficiently," says ACLU of Wisconsin legal director Larry Dupuis. But, he adds, "The mere fact that legislators find criticism or transparency inconvenient does not justify the suppression of speech and the gathering of information by Wisconsinites."
Madison attorney Jeff Scott Olson plans to take it a step further. He says his tentative plan is to file a lawsuit in a couple of weeks challenging the Assembly gallery ban on signs. Olson says he will deal with the prohibition on cameras separately.
"We think the First Amendment protects the right to hold small, unobtrusive signs in the gallery," he says.
Olson filed a lawsuit Nov. 4 in Dane County Circuit Court challenging the authority of the Department of Administration to ban protest signs in the Rotunda. Six protesters were ticketed for displaying signs there, though their tickets were later dismissed.
Harbaugh says the Capitol building is, by legal definition, a "limited public forum." The spaces where government conducts its business is a very different space from the Rotunda, for instance, which is more accessible and an obvious place for demonstrations.
But even the Rotunda has some limits compared to places like the sidewalk around the Capitol, she argues. That, she says, "is a traditional public forum. That is completely constitutionally protected."
Dane County District Attorney Ismael Ozanne says his office has not yet received the reports from the gallery arrests last week. A circuit court commissioner dismissed an earlier round of tickets.
Ozanne says he is not sure whether the Assembly rules infringe on free speech.
"I would have to see what is brought in and how it's presented," he says. "Obviously we want to protect the rule of law and protect people's ability to exercise their freedom of speech. Where that intersects with law enforcement and the security of the Capitol sometimes can be a gray area, depending on how it affects those who are working there."