To the Citizens of Wisconsin: Be you protestor, or free-speech assassin, no one in this great nation has the right to silence you. I share with you the immortal legacy of Bennett A. Masel, Madison’s own counter-cultural icon. I bet you thought that since Ben’s tragic death, his victories at trial would be long forgotten. You thought wrong. Ben’s words and actions live on in many minds, hands, and hearts. His legal actions may well have ensured your personal freedoms.
Before I start, let’s get one thing straight. I’m not a lawyer. I can’t give you legal advice, but I can share with you some of Ben’s tools; tools that stood up for him in a court of law… on more than one occasion. I will refer, in this article, to a particular set of court cases; which are listed below with details. This is merely a brief glimmer in Ben’s bright litigious history. As with the rest of this article, I have bolded details that may prove highly important. When I’m quoting code, but have a subjective interjection, I’ll italicize my remarks. Here are:
Case No. 87CV5457 (1987-1988)
Wisconsin Marijuana Action Committee and Bennett Masel (Plaintiffs) Tommy Thompson, individually and as Governor of the State of Wisconsin, Michael C. Metcalf, individually and as Chief, Wisconsin Capitol Police, and James R. Klauser, individually and as Secretary of the Wisconsin Department of Administration (Defendants)
Plaintiff’s Attorney: Richard B. Jacobson (Borns, Macaulay & Jacobson)
Result: Dismissed when neither party appeared. (I can only speculate as to why.)
Case No. 88 CV 5121 (1988-1989)
Wisconsin Marijuana Action Committee and Bennet [sic] Masel (Plaintiffs) v Tommy Thompson, individually and as Governor of the State of Wisconsin, Neal Steinhoff, individually and as Administrator, Division of Buildings and Grounds of the Wisconsin Department of Administration, and James R. Klauser, individually and as Secretary of the Wisconsin Department of Administration (Defendants)
Plaintiff’s Attorney: Richard B. Jacobson (Borns, Macaulay & Jacobson)
Result: Attorney General’s office moved for summary judgment in defendants’ favor (dismissed)
Case No. 93C 0630C (1993-1994)
National Organization for the Reform of Marijuana Laws, Wisconsin Chapter, Inc., and Bennett A. Masel (Plaintiffs) v Tommy Thompson, individually and as Governor of the State of Wisconsin, James R. Klauser, individually and as Secretary of the Wisconsin Department of Administration, and Michael C. Metcalf, individually and as Chief, Wisconsin Capitol Police (Defendants)
Plaintiff’s Attorney: Byron J. Walker
Result: Judgment in Plaintiff’s favor. Plaintiff awarded in monetary settlement: attorney’s fees plus $1.00 in damages (injunctive relief based on applied challenge to Wis. Admin Code Adm. 2.04 (7)) Defendants also were granted an injunction entitling them to a restraining order against defendants for the duration of permit, so as to utilize their right to free speech without interruption or unjust persecution.
While the final case’s verdict was an important victory, it does appear the court was also wary of the decision’s weight.
[Loophole or not, the judgment states: “3.) This consent judgment shall not constitute an admission that Wisc. Admin. Code. Adm. 2.04 or Adm. 2.05 violate federal or state law and shall not constitute a waiver of any defenses that the defendants could have asserted in this action.” Basic application of the defended statute ought to remind us that this doesn’t constitute a censure either. (see Admin. Code 2.04 (6) to be exact) It’s not a “waiver”… but it appears to be a start to collapsing spiral of corruptive errors in bureaucratic syntax.]
Adm. 2.04 (6) The utilization of state office buildings and facilities by an organization shall not imply endorsement or approval by the state of Wisconsin or the department, nor the extension of special privilege. Likewise, the refusal by the department to permit use of a state office building or facility shall not be interpreted as disapproval or censure of any organization, but shall be for any violations of the conditions set forth in sub. (1) (a) to (e).
Restraining orders against the DOA and Governor’s office? Cyclical language? Now, do I have your attention? Ben spent a significant portion of his life in a courtroom. The sequence of adjudications you see (above) the payoff of persistence and good will to those who choose to speak out. I feel I should point out the obvious. None of these civil cases are charging simply the individual; they are charging the office holders. Ben didn’t just drag the Governor’s office into it; he made sure the Secretary of the DOA, the Administrator of the Department of Buildings and Grounds (charges dismissed…), and the Chief of Capitol Police all got wrapped up into this. Are you paying attention, Mr. Governor?
In the above cases, but specifically Case No. 93C 0630C Ben proved:
1.) No one can lawfully deny your right to speech. It’s defended by the Constitution. It’s that one amendment… you know; the first one.
2.) Capricious or deliberate censure (without “just” cause) creates a great case against your government and office holders.
3.) As “an appropriate facility” to demonstrate free speech, it is inappropriate to capriciously deny (or charge for!) permits. You can’t put a price on free speech... Charging for the right to utilize your right to free speech to create a productive dialogue relevant to your State’s well-being is contrary to the DOA Administrative. Code. See Admin. Code Adm. 2.04 (1) (a-e).
4.) Policies cannot be administered with bias.
Furthermore…
Adm. 2.04(5) The department and the applicant may not discriminate against any individual on the basis of age, race, creed, color, handicap, marital status, sex, national origin, ancestry, arrest record or conviction record in the utilization of state office buildings and facilities for government business, public meetings for free discussion of public questions, or for civic activities.
5.) If there is a threat that your actions will cause physical harm or disruption to a space, you are potentially liable to a fee no greater than $100. ($500 if you break a “big” rule… see the following passage regarding Sec. 16.846 and for examples of these behaviors see end passages of this article.) The greatest penalty you could suffer would be the fine and 30 days in jail. I know Ben considered his experiences a privilege and an honor… but also as a duty. (See Adm. 2.14 (zd)) I hope you would, too. Don’t worry your pretty heads, though. It makes little to no sense to arrest hundreds or thousands of people. In fact, we are all beginning to see how improbable mass arrests can be. If enough people amass, it’s downright impossible.
16.846 Rules relating to use, care and preservation of property under department control.
(1) (a) The department shall promulgate under ch. 227, and shall enforce or have enforced, rules of conduct for property leased or managed by the department. Unless the rule specifies a penalty as provided under par. (b), a person found guilty of violating a rule promulgated under this subsection shall be fined not more than $100 or imprisoned for not more than 30 days or both.
(b) A rule promulgated under par. (a) may provide that a person who violates the rule is subject to one of the following:
1. A lesser criminal penalty than the criminal penalty specified in par. (a).
2. A forfeiture of not more than $500.
(2) A forfeiture under sub. (1) (b) 2. may be sued for and collected in the name of the department before any court having jurisdiction of such action. An action for a forfeiture under sub. (1) (b) 2. may be brought by the department, by the department of justice at the request of the department, or by a district attorney.
(3)All fines imposed and collected under this section shall be transmitted to the county treasurer for disposition in accordance with s. 59.25 (3) (f) and (j). All forfeitures, including forfeitures of posted bail, if any, imposed and collected under this section shall be transmitted to the county treasurer for disposition in accordance with ss.
Fines? Jail time? Learning the rules could be fun, right? Red tape aside, you have the right to assemble and to be hopeful you are still encouraged to hold your liberties. DOA code supports this concept when it’s not trying to scare you away.
Adm 2.04 Public meetings and events.
(1) The department of administration as managing authority of the several state office buildings and facilities may permit the same to be used by any governmental body or official or any nonprofit, fraternal, religious, or veterans’ organization for purpose of governmental business, public meetings for the free discussion of public questions, or for activities of a broad public purpose if such use:
a. Does not interfere with the prime use of the building or facility.
b. Does not unduly burden the managing authority.
[Does new code propose that four individual demonstrators at a time constitutes undue burden? This would negate regulation structure, as is constitutes capricious basis for permit necessity! FOUR people hardly constitutes undue burden!]
c. Is not a hazard to the safety of the public or state employees; nor detrimental to the building or facility.
d. Does not expose the state to the likelihood of expenses and/or damages which cannot be recovered.
e. And is appropriate to the physical context of the building or facility.
BINGO. Where better to exercise your right to free speech than the Capitol Building? The application fees contemporized by policy change constitute political bias against the poor, among many other equally valid charges; which are, seemingly supported by egregious DOA code. For instance, the fact that four homeless people (let alone one… see 2.14 (i) (1) for more information) cannot enter the Capitol to scrutinize their representative on the increasing losses of local and state support for non-land-owning citizens should be much more disturbing to public consciousness. This is a fracture point in the basic function of our administrative system. Denying the freedoms of some, refutes freedom for all.
Lest I digress and leap to further injustices practiced for the sake of “order”, let us now assume, as it is proven, we all have the right to assemble, and when in groups, permits cannot be charged for in ways that demonstrate capriciousness or bias. What does a permit entitle a group to?
Adm. 2.04 (8) (b) The permit shall be issued for any period requested, including business hours, but not to exceed 2 hours.
This is why multiple permit holders, be they man or institution, are integral to the legitimate success of massive future demonstrations…
But, do you even need a permit? As we have now (albeit unconstitutionally) defined “undue burden” as four people, it seems rather simplistic but plausible that a few thousand individuals do not constitute undue burden. That’s right, boys and girls! This whole thing hinges on your personal corruption… your NEED to be part of the group OR an individual. I want you to memorize this. Learn it by heart, and learn to repeat it like your freedom and that of your descendents in perpetuity depended on it, because it just might:
“I am here as an individual. I am not part of a group. I am here to express my own beliefs which I have deemed relevant to the use of this facility; beliefs which are important to the ethical and moral existence of our current political structure in my state, my country, and my world.”
Or if your voice trembles too much, just say, “I’m alone.” or “I’m with less than three other people.” If the DOA adheres to their new rules, they will talk themselves into a corner where a blind mob of individuals has more rights than a highly organized demonstration.
Should you be pressed, there are so many more things you could recite to better demonstrate your individualism. I recommend reciting the Girl Scout/Boy Scout/4-H/Allegiance Pledge(s)… Just remember, you are here to contribute to “the free discussion of public questions”, at an "individual" level.
They can’t silence you.
But they do think they can scare you.
They think they can discourage you and lead you back down the path of apathy and disconcert. They think they can cram you into the shell of a cog so that the predominance and contrary nature of their own devices can remain hidden. They want to force public abstention from democratic process. And to remain silent is to give your consent in absentia… sometimes, inaction is a far worse sin.
Now, let’s get another thing straight. I don’t necessarily care about what you care about. (Again, see Admin. Code. Adm. 2.04 (6)) I might even think something you plan to express up there is downright stupid and potentially unpleasant. But I care that you have the right to say it. (Your) God be with you; go be you. If an individual has more rights than a mob, a mob of individuals can be so much greater than the men we elect to office. This conversation must continue… This “free speech” we’re fighting for, here, isn’t simply a right. It’s an obligation. Every day, people die to protect our freedom, and what do we do with it? We let it be taken away. There is something perpetually damaging about allowing people to be silenced. That sort of attitude leads to the ultimate silencing of all.
Speak though your voice may tremble. It should tremble, as you are part of a larger political process… and because Ben Masel is no longer here to fight your battles for you.
Tools and Potential Tricks
Deeper into this passage is Ben’s standard permit application. Learn to love it and live by it. Don’t just look at it; use it. Permits are granted for up to 2 hours at a time, and this doesn’t include any additional set-up times you might stipulate are necessitated in your application. The Capitol is typically open for business 8:00AM to 6:00PM on weekdays. (But, for after hours permit potential, see Admin. Code 2.13 and Admin. Code Adm. 2.14 (z)) If individual organizations teamed up to file this simple permit application on a particular day, we would only need 5 groups to secure the Capitol all day long. Now, consider what might happen if they applied for permits every day for the next year… perhaps even sending all of those permit requests within a short period of time. The possibilities are spectacular.
Adm 2.13 Building use during closed periods.
(1) The buildings and facilities managed or leased by the department shall be used by state employees for the purpose of state work. Employees, vendors on state contract, and the public who use the buildings and facilities after those buildings are locked and secured by the managing authority, shall have express written permission of the managing authority.
(2)The tenant agency shall be responsible for any costs incurred by the department due to the actions of employees, visitors and vendors permitted into buildings and facilities managed or leased by the department by employees of tenant agencies when the buildings and facilities are closed.
Under this beautiful provision, I reason that any state employee or [hopefully representative] Union can apply for, and must be supplied a permit if it is relevant to that employee’s State political environment AND their job. I know a few tens of thousands of people this actually applies to. The permit should be granted so long as the individual can defend the necessity within the parameters of the law and administrative code. There are plenty of reasons and no need to deviate into further detail.
Apart from State Workers, The Solidarity Sing Alongs, for instance could also be particularly aided by Ben’s experience. A permit application would “legitimize” use outside the parameters of individuals gathering, and while the DOA may believe that they can antagonize a group with a named permit holder, under the letter of the law open discrimination via means such as excessive fines or forced penalty could be used against the State itself in a court of law. Notwithstanding, another permit being granted for same period of time as desired by another party does not preclude the issuance of a permit… after all, “undue burden” is being contemporarily defined by the DOA as four people; otherwise, a fee would not be up for consideration…
But if you really get down to brass tacks and isolate free speech as a right, permits might not be at all necessary, especially as expressed in a letter from Chief of Capitol Police Michael Metcalf which Ben used as exhibit A in all of the above cases, Metcalf clearly states “No permit is required to gather on the Capitol grounds for the purpose expressed in your application.” Metcalf is referring to the exterior area surrounding the Capitol, but the same logic can be applied, as Admin. Code 2.04 (e) clearly states: “And is appropriate to the physical context of the building or facility.” It is a cyclical argument. It is appropriate to start a productive dialogue inside the Capitol, so such action may be allowed with an issued permit; however, the First Amendment allows the freedom of speech. If you apply for a permit, you can’t reasonably be denied within this context, but through application of our innate freedoms expressed by our constitution you have the right to not request one… but I still recommend requesting one, or several.
Ben’s exhibit B was a stand-all; his permit application… a letter to the Chief of Police, but I’ll leave it like a Mad-Lib, because you aren’t Ben.
[XXXX Your address here
City, State ZIP
Month Day, Year]
Wisconsin Capitol Police:
_____ hereby requests that your department issue a permit for a rally to be held (on/at) the ___ [street steps/area] of the Capitol Building on _____, commencing at ___ and concluding at ___. This event will feature ________. This event (will/will not/may) include (amplified sound/amplified music). It is requested that electrical access be made available, as in the past. (Equipment setup will commence at ___.) We (intend/do not intend/may choose to) have a table offering printed material for sale or donation, State regulations notwithstanding, as this activity is protected by the US Constitution. (See Citizens for a Better Environment v. Schaumberg for a Supreme Court case on 1st Amendment protection of political fundraising.)
Your prompt response to this permit application will be appreciated.
[Your Name Here]
(applicant)
This permit application could be sent to:
Capitol Chief of Police Charles Tubbs
Division of Capitol Police
B2N State Capitol
Madison, Wisconsin 53702
But this can be easily amended if you want to apply for internal demonstration access. Here’s my suggestion:
[XXXX Your address here
City, State ZIP
Month Day, Year]
Department of Administration:
_____ hereby requests that your department issue a permit for a rally to be held within the Capitol Building on _____, commencing at ___ and concluding at ___. This event will feature ________. This event (will/will not/may) include (amplified sound/amplified music). It is requested that electrical access be made available, as in the past. (Equipment setup will commence at ___.) We (intend/do not intend/may choose to) have a table offering printed material for sale or donation, State regulations notwithstanding, as this activity is protected by the US Constitution. (See Citizens for a Better Environment v. Schaumberg for a Supreme Court case on 1st Amendment protection of political fundraising.)
It is not anticipated that this event will cause undue burden or disruption to daily events, so a fee is not appropriate, but should expenses present themselves within the letter of the law, please contact us. Your prompt response to this permit application will be appreciated.
[Your Name Here]
(applicant)
[CC: Capitol Chief of Police]
This permit application could be sent to:
Secretary Mike Huebsch
Office of the Secretary
101 E. Wilson St.
Madison, Wisconsin 53703
I anticipate these permit applications would fit on an index card appropriate for mailing, en masse, at reduced postage. Let’s give the US Postal Service a hand, and start sending some permit applications. It’s a lot cheaper than the DOA would lead you to believe.
Whether or not you choose to apply for a single (or multiple…) permit(s)… you should know the code, constitutional or not. Again, please, don’t consider my comments endorsement or censure of any actions you might insinuate I’m suggesting be practiced. [see Admin. Code Adm. 2.04 (6)] But DO consider this my endorsement for creating some very interesting permit applications!
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