From Mobius: The Journal of Social Change, Fall, 2013
Every weekday at noon, citizens gather at the Wisconsin State Capitol to sing.
And face arrest.
They are unbowed because they know they are fighting for the most basic of human rights, the right to peacefully assemble and the right to freedom of speech.
And let’s be very clear. This is not just Madison’s battle. This is not just a Wisconsin battle. This is a national battle, which, frankly, has ramifications all over the world. This is everybody’s fight.
First, the back-story.
Governor Scott Walker takes office in January 2011. In February, he announces legislation that will essentially outlaw collective bargaining for almost all public employees. Hundreds of thousands of people hit the streets in what will be the longest and largest continuous labor protest in American history.
On March 9, 2011, Republican legislators use parliamentary chicanery to illegally pass the union-busting bill and violate the state’s open meeting law in the process. Two days later, a small group gathers in the Capitol Rotunda to sing in an effort to raise collective spirits and keep the struggle alive. Thus, the Solidarity Sing Along is born. The Solidarity Sing Along has gathered every weekday at Noon since that date to peacefully sing labor and civil rights songs, as well as some songs that lampoon Scott Walker.
The Republicans who dominate the Capitol meet the Sing Along with derision and hostility. New rules are implemented to restrict freedom of speech and assembly. On December 19, 2011, a new rule goes into affect that states that groups of more than three people must obtain a permit to gather in the Capitol. That day, several 100 people attend the Sing Along. There are no incidents and no arrests.
The rule is largely ignored for several months because Capitol Police Chief Charles Tubbs refuses to enforce it. All through the Wisconsin Uprising, Tubbs maintained an open door policy with protesters, opting to respect people’s right to protest. Even with the Capitol packed to the gills and tens of thousands marching outside, there were very few arrests.
Tubbs retires (or resigned or was forced out) last year. He is replaced by David Erwin, a former marine and a member of Walker’s personal security detail. Erwin immediately starts enforcing the rule. Singers are arrested and cited. Cases go to court and are largely thrown out. Michael Kissick, a physics professor at the University of Wisconsin–Madison, files a federal lawsuit, claiming that his civil rights are being violated. He alleges that he wants to attend the Sing Alongs, but can’t because of the atmosphere of intimidation.
U. S. District Judge William M. Conley agrees, at least to a point, at least to the extent that he sees fit to grant a temporary injunction against the rule. In Kissick v. Huebsch and Erwin, Judge Conley states, “defendants are enjoined from enforcing the permitting requirement generally, as applied to events in the Capitol that are anticipated to attract 20 or fewer persons.”
Walker’s palace guard, i.e., Capitol Police, under the auspices the Department of Administration, begin arresting singers on July 24. Singers are issued citations for failure to get a permit or unlawful assembly. These are municipal violations, usually with a $203 fine. Those arrested are handcuffed and marched down to the basement where they are processed and given their citation. Sometimes, those arrested are treated a bit roughly.
A few highlights of what is some pretty poor behavior by the Capitol Police: They arrest elderly people, even those in their 80s, including members of the Raging Grannies. They arrest a 14-year-old girl. They’ve arrested union leaders, including former Wisconsin AFL-CIO President David Newby and AFSCME Council 24 Executive Director, Marty Beil. They’ve threatened to arrest people merely for observing. A woman named Nora Cusack was arrested for holding a sign that identified herself as an observer. She quoted policy that it was illegal for a sign to be attached to a stick or standard. The officer said, you’re the standard.
And they have arrested journalists. Last month, Matthew Rothchild, editor of The Progressive, was arrested, even after he identified himself as a journalist.
Last Monday, the arrests turned violent. CJ Terrell sat down, stating, “I am not resisting. I am just not actively participating in my arrest.” Police used pain compliance techniques to coerce him into cooperating. His brother, Damon, was filming the arrest. When told he was subject to arrest, Damon backed away, with his hands up, palms facing outward. He’s tackled, subdued, cuffed and carried away. Damon was charged with felony battery of a police officer and sat in jail for more than three days. The DA ordered him released on a signature bond, but did not charge him due to the delay in receiving a report from the Capitol Police. As a condition of his bail, Damon is not allowed to step foot in the Capitol or on its surrounding grounds.
It should be noted that CJ and Damon are African American, as is Will Williams, a Vietnam Veteran who fell down a flight of stairs while in police custody.
Last Tuesday, Tom Neale, former poetry editor of Mobius and long-time activist, was arrested. In the last six weeks, more than 300 citations have been issued.
This is crossing the line. Police brutality is crossing the line. Arresting journalists is crossing the line.
Scott Walker and his zombie minions have crossed the line. Enough is enough. This must stop.
I don’t want to exercise in hyperbole, but there is something truly fascist about what is going on. Walker has allied with the billionaires, corporations and big business to the extent that what we have in Wisconsin is government of the corporations, by the corporations and for the corporations.
And opposition is not to be tolerated. Resistance to be met with intimidation.
The union busting bill had nothing to do with fiscal concerns; it was about destroying the most important power base of the Democratic Party. It was about crippling the opposition.
And the heavy-handed actions of these jackbooted thugs wearing police uniforms at the Capitol are nothing more than an attempt to silence anyone who would speak out against them.
Not to get too much into legalese, but Walker and his puppet Department of Administration, made a conscious choice to interpret Judge Conley’s injunction in as draconian a fashion as they possible could. Again, the injunction states, “defendants are enjoined from enforcing the permitting requirement generally, as applied to events in the Capitol that are anticipated to attract 20 or fewer persons.”
On its face, this merely says that a permit cannot be required for groups smaller than 20 people. That is all it says. Judge Conley did not issue a court order stating that groups of more than 20 who assemble without a permit shall be subject to arrest and prosecution. He did not even say that groups of more than 20 who assemble without a permit may be subject to arrest and prosecution. All he said is that DOA and the Capitol Police are prohibited from requiring a permit for groups of 20 or less.
Granted, one could make the argument that there is complicit consent for DOA’s interpretation in the injunction. This is further supported by the fact that within the 47-page decision, there is a lot of language about the reasonable nature of DOA’s administrative rules and the fact that there are ample avenues for relief if the state violates its own rules.
However, Judge Conley goes to great pains to talk about the fact that the Capitol and especially the Capitol Rotunda is a public forum. That means that it is designed to be and is intended to be a place of public discourse and therefore is a place where freedom of speech has greater protection than other public places.
As for the number 20, there is nothing magical or mystical about it. It’s merely an arbitrary number that Judge Conley threw out in an attempt to find a reasonable, albeit a temporary solution to the current situation.
And let’s not forget that this is merely a temporary injunction. There will be a full trial in January. And the whole world will be watching.
But regarding the issue of the magical/mystical number 20, I believe Judge Conley merely intended that as some kind of “floor.”
Defendants’ failure to arrive at an appropriate “numerical floor” for requiring smaller groups to obtain a permit could be grounds to enjoin enforcement of the entire policy until the Department arrives at an appropriate number. This is not, however, a final judgment of facial unconstitutionality, and defendants have established that some threshold is appropriate. Accordingly, the court will enjoin defendants from requiring permitting for “events” in the Capitol rotunda of 20 persons or less. This preliminary number attempts to protect the fundamental rights of plaintiff and others like him to freely assemble and engage in speech while permitting defendants the ability to manage the competing demands on the rotunda and quickly called additional police officers if necessary.
Now we all know that freedom of speech is not absolute. For instance, one cannot yell fire in a crowded theater. The key is that there is a process of weighing between the need to speak and assemble freely and the need to maintain a reasonable amount of order. Conley certainly acknowledges this. He repeats long-standing precedent giving government the right to have a say about events that occur in buildings that it owns, including state houses, where protests and demonstrations are nearly an everyday occurrence.
On the other hand, Conley has quite a bit to say about the importance of freedom of speech and assembly and the affect of requiring permits. In fact, he makes no bones about the consequences of requiring permits:
“Permits chill speech.”
Given these kinds of sentiments and given that Judge Conley felt Kissick’s arguments were compelling enough to grant the injunction, it is absolutely clear that the DOA’s interpretation is not a slam dunk.
Frankly, I am baffled as to why the Walker Administration would respond in such a heavy-handed way. Surely, they must realize the actions of the Capitol Police will have a bearing on Conley’s eventual decision, especially given that the two primary needs that permits satisfy—event scheduling and staffing of police officers—are actually met by the Sing Along. Capitol Police knows when the event will take place. They know the Sing Along will move outside if there is another event scheduled. They know the Sing Along is peaceful; therefore, they know what their staffing needs are.
As for why, perhaps it’s because Walker, after surviving the recall election and the John Doe investigation, feels invincible and believes he can get away with just about anything.
Or maybe it’s because he’s out there traveling the country, returning with suitcases full of cash after meetin’ with folks whose just pleased as punch that he’s takin’ care of them troublemakers and puttin’ them union leaders in their place. Too bad he weren’t able to throw Beil and Rothchild in jail and throw away the key.
Still, I have to think that if any of his billionaire backers actually have something other than a reptilian brain, they’d look at the upcoming federal case and think of it as something they would want to win.
Or maybe Walker thinks he can get the opposition under heal to such an extent that it won’t matter what Judge Conley decides next year. If that’s what he’s actually thinking, well, he couldn’t be more wrong. First, Wehrmacht Commander Erwin is clearly in over his head. The behavior of his officers is spiraling out of control, and he is powerless to do anything about it. Late last week, a report surfaced from an unnamed source that Erwin actually reached out to Dane County Sheriff David Mahoney for advice. Mahoney’s advice was, be prepared for lawsuits.
But much more importantly …
We’re still here.
We’re still here because there are important things that we understand very, very well.
We understand that this really isn’t about permits. In fact, the question of permits merely clouds the issue. Our right to freedom of speech and freedom of assembly shall not be abridged. This is according to the First Amendment of the United States Constitution and Article I of the Wisconsin Constitution.
We understand that the notion that we must ask permission to protest from the person we want to protest against is totally and utterly absurd, especially considering that a permit holding may be financially liable for anything that happens during the permitted event. I am reminded of a recent conversation I had with a young Iranian man who is in the United States attending college. He left Iran because he had been arrested and threatened with jail time if he got in any more trouble. He asked the judge if he was allowed to leave the country to go to college. The judge said no—and in fact encouraged him to leave.
His crime was being a member of a student group that was not approved by the government.
We understand that this is for the benefit of all citizens, not just those who want to protest against Scott Walker. After all, the shoe could be on the other foot. Would it be any less egregious if a Democratic governor were doing this to a group of Tea Party activists who wanted to gather every day in the Rotunda?
We understand that this battle is about preserving a very basic, fundamental human right. It’s a federal case, so it will affect what happens in every state house around the country. I recently spoke with an environment attorney from Oregon. She was very interested in what was going on here in Madison.
We understand that what happens here will ripple across the planet. If the notion of America being some great beacon is to be taken seriously, than we must do all we can to preserve our rights, for if we don’t despots around the world will use this as an excuse to tighten the screws on their own people.
I think back to the Wisconsin Uprising and remember my handmade protest sign that read, “worker’s rights are human rights,” and I see a great similarity between today’s battle and the fight against the union busting bill. In 2011, we weren’t fighting so public workers could “just keep theirs” as some derisively said. We were fighting for the basic human right of being able to bargain collectively.
Essentially, freedom of assembly.
Today, we fight for the basic human rights of freedom of assembly and freedom of speech. We fight for rights so fundamental that if you take them away, it’s practically tantamount to taking away our ability to breathe. If we don’t fight, we die. We die either slowly or rapidly.
However, there is a big difference between today’s fight and the fight of 2011.
This is a fight we can win. As they say, we get to have our day in court as opposed to 2011 where we fought against a stacked deck, where it took illegal actions by the legislature to pass the bill and a corrupt Wisconsin Supreme Court to uphold the bill, whose conservative majority was perhaps maintained through the actions of a corrupt political hack of a county clerk in Waukesha County by the name of Kathy Nickolaus, who somehow managed to rat out fellow party members during the Legislative Caucus Scandal, only to be elected clerk in the most Republican county in the state a mere year later. How that happened is beyond me. Only Scott Jensen, David Prosser and Brian Schimming know for sure.
But what is to be done?
As has been the mantra of the Sing Alongs, especially in the face of police repression, we must continue to be peaceful, respectful and joyful.
I was not at the Sing Along on Monday, when CJ and Damon were arrested. I did attend the next two days, and I was quite inspired by what I saw.
Or rather what I did not see.
I did not see anger. What I did see was people being peaceful, respectful and joyful. Hell, I saw love, and it was a beautiful thing, especially on Wednesday, which was the 50th anniversary of the March on Washington. To commemorate that occasion, as well as support Nora Cusack, our wonderful community radio station, WORT 89.9 FM printed up a whole bunch of signs that read:
I AM THE STANDARD.
The signs were designed in the same manner as the “I AM A MAN” signs carried by the striking Memphis sanitation workers in 1968. From Memphis to Madison, we are here, trying to keep hope alive.
It’s a beautiful civil disobedience that is happening here in Madison, Wisconsin, late in the summer of 2013. We will remember the lessons of Mahatma Gandhi and Martin Luther King. We will show up day after day. We will not tire. We will not waver. We will be peaceful and non-violent. We will clog the courts and fill the jails if we have to.
And we will keep singing. We will keep practicing freedom of speech and assembly through song.
* * *
If you’re wondering what you can do, here’s a few things.
Donate to the First Amendment Protection Fund. Most people who are arrested are pleading not guilty and are requesting jury trials. Attorney are lining up to offer pro bono services, but a jury trial costs $36.
Spread the word! The story of what’s going on is gaining a little traction, but it’s not the story it should be. Tell your friends and your relatives. Get the word out. Walker and his acolytes want to be able to do this under the dark of night. Shine the light!
Start a Solidarity Sing Along in your town. It’s fun and uplifting. Download a songbook and get started!
Come to a Sing Along. Numbers matter, and it is incredibly heartening to hear about people from all over the country attending a Sing Along, so if you happen to be in Madison or near Madison, come on by. And remember, on Fridays, the Sing Along is outside, where we’re free from arrests and musical instruments are allowed. Come on by. You’ll be glad you did.
Follow Vampire Cabbie (Fred Schepartz) on Twitter @fmschep.