October 10, 2012 Joseph Kreye Senior Legislative Attorney Wisconsin Legislative Reference Bureau Free speech and demonstrations A. Constitutional rights 1. The First Amendment of the U.S. Constitution: Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. a. The First Amendment applies to the states by way of the Fourteenth Amendment: No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. b. State constitutions also have free speech guarantees. Article 1, section 3, of the Wisconsin Constitution provides that: Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. c. The right to speak, and to petition the government, is not absolute. Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. Clark v. Community for Creative Non- Violence, 468 U.S. 288 (1984).
B. Case law 1. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). a. Does a National Park Service regulation prohibiting camping in certain parks violate the First Amendment when it is applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in Washington D.C. to call attention to the plight of the homeless? The Court says it does not. b. The regulation allows individuals to erect temporary structures in a national park for demonstration purposes, but not for camping. c. The Park Service granted a renewable permit to conduct a winter season demonstration and to erect 2 symbolic tent cities, but denied the group s request to sleep overnight in the tents. d. The Court found that the regulation that restricted sleeping in national parks to specifically designated camping areas was defensible either as a time, place, or manner restriction or as a regulation of symbolic conduct. e. The Court also found that the regulation was content neutral. f. It is also apparent to us that the regulation narrowly focuses on the Government s substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence.[w]e seriously doubt that the First Amendment requires the Park Service to permit a demonstration in Lafayette Park and the Mall involving a 24-hour vigil and the erection of tents to accommodate 150 people. Id. At 296. 2. Frisby v. Schultz, 487 U.S. 474 (1988). a. Abortion opponents picketed on a public street outside the Brookfield, Wisconsin residence of a doctor who apparently performed abortions at clinics in neighboring towns. 2
b. Although the picketing was generally orderly and peaceful, it was controversial and generated numerous complaints. c. The town, in response, enacted an ordinance: It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield. d. The District Court granted a preliminary injunction, concluding that the ordinance was not narrowly tailored to restrict protected speech in a public forum. The U.S. Court of Appeals for the 7 th Circuit affirmed. e. The Supreme Court upheld the ordinance by interpreting the ordinance to prohibit only picketing focused on, and taking place in front of, a particular residence. Id. At 482. f. The Court found that the ordinance preserved alternative channels of communication and served a significant government interest: We find that such an interest is identified within the text of the ordinance itself: the protection of residential privacy. Id. At 484. One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different. That we are often captives outside the sanctuary of the home and subject to objectionable speech does not mean we must be captives everywhere. Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. (cites omitted) Id. At 484-85. 3
g. The Court noted that, although a public street is the archetype of a traditional public forum, even protected speech is not equally permissible in all places and at all times. 3. Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992). a. Are the free speech guarantees of the First and Fourteenth amendments violated by an ordinance that permits a county administrator to vary the permit fee for assembling or parading to reflect the estimated cost of maintaining public order? The Court found that such a mechanism did indeed violate free speech guarantees. b. On January 17, 1987, approximately 90 civil rights demonstrators attempted to parade in the county seat, but were met by some 400 counterdemonstrators, shouting racial slurs and throwing rocks and beer bottles. The counterdemonstrators outnumbered the police and the demonstrators were forced to disperse. c. On January 24, approximately 20,000 marchers convened at the county seat for a parade and rally. The demonstration drew 1,000 counterdemonstrators who were successfully contained by more than 3,000 state and local police and members of the National Guard. The demonstration cost over $670,000 in police protection. d. The county subsequently enacted an ordinance to issue permits for parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes. e. The ordinance was then amended to require that each permit applicant pay a fee not to exceed $1,000 for each day that an event takes place. The ordinance gave the county administrator the authority to adjust the fee in order to meet the expenses incurred by the event to maintain public order. f. In January 1989, The Nationalist Movement applied for a permit to demonstrate in opposition to the federal holiday commemorating Martin Luther King, Jr. s birthday. The county imposed a $100 fee. 4
The county administrator did not include in the fee any calculation of the estimated expenses that would be incurred by law enforcement. The county administrator testified that he only considered the administrative time for processing the permit application, which he said he undervalued. g. The Nationalist Movement brought suit to enjoin the county from enforcing the fee requirement. h. The District Court denied the injunction, finding that the fee was based solely on content-neutral criteria. The court did, however, express doubts about the constitutionality of permitting the fee to be based on the costs incident to maintaining public order. i. The 11 th Circuit court of appeals reversed, holding that [a]n ordinance which charges more than a nominal fee for using public forums for public issue speech, violates the First Amendment. j. The Supreme Court did not focus on the amount of the fee, but on the arbitrary nature of its assessment. The county administrator had testified that, on 2 separate occasions, he had assessed a $100 permit fee on the Nationalist Movement, but that he had assessed a $25 fee on bike-organizers using county roads. He had also assessed a $5 fee on the Girl Scouts for an activity on county property. Finally, he testified that he had not required some persons to obtain a permit or pay a fee for using county lands or facilities. k. The decision how much to charge for police protection or administrative time or even whether to charge at all is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official. Id. At 133. 5
C. Legislative rules regarding order and decorum 1. Article IV, section 1, of the Wisconsin Constitution: The legislative power shall be vested in a senate and assembly. 2. Article IV, section 8, of the Wisconsin Constitution: Each house may determine the rules of its own proceedings 3. Under the rules of the Wisconsin Assembly, the presiding officer shall preserve order, decorum, and quiet on and about the assembly floor during sessions. The following activities are prohibited on the floor and in the visitor galleries: eating, smoking, reading newspapers, and, with certain exceptions, using a cellphone. Also, except for the media, no person may use a microphone in the chamber that is capable of picking up a conversation that is more than 10 feet away from the microphone. 4. Under the Wisconsin Senate rules, an individual in the gallery must be quiet and seated at all times, must turn off his or her cellphone, and may not do any of the following: lean over the balcony, display signs, read books or newspapers, consume food or beverages, use tobacco products, use a computer, or photograph the proceedings. 5. Two questions: Are the rules restrictions on certain expressive activities and, if so, are the restrictions reasonable time, place, and manner restrictions? D. Public access to state capitals 1. A state capitol building is a traditional public forum, but also a (rather ornate) state office building. 2. Use of the capitol or the capitol grounds for a demonstration is subject to reasonable time, place, and manner restrictions. 3. The Wisconsin Capitol is generally open to the public during normal business hours, Monday to Friday from 8 am to 6 pm. On weekends and holidays the building is open from 8 am to 4 pm. Public access to the capitol buildings, and the policies that govern that access, vary greatly from one state to the next. 6
a. Twenty-four states do not allow demonstrations inside the state capitol building. Of the 26 states that allow demonstrations, all but 6 require some form of permit. b. In Wisconsin, you must have a permit for any gathering of 4 or more people inside the Capitol, unless the gathering is a spontaneous event. The permit itself is free, but demonstration organizers could be charged costs necessary to terminate unlawful conduct. A permit is also required for any even occurring on the grounds if more than 100 people are expected to attend or if the event organizer needs use of state equipment or resources. c. In Wisconsin, you may not affix any documents to the interior or exterior walls of the Capitol. Signs on hand sticks are not allowed inside the building. 7