I wish I had more time to analyze and write about this, but let's just say it was a good day for the Wisconsin chapter of the ACLU.
In addition to granting a 10 day injunction barring enforcement of Wisconsin's brand-new abortion restrictions (you can read about that in Puddytat's recommended diary), the same federal judge issued a preliminary injunction barring Wisconsin Governor Scott Walker's administration from "(1) distinguishing based on the content of the speech between “rallies” and other events for permitting purposes inside the Capitol and (2) enforcing the permit requirement for gatherings expected to draw 20 or fewer persons inside the Capitol rotunda itself."
The plaintiff, Michael Kissick, assisted by the ACLU and Madison attorney Steven Porter, had filed a lawsuit claiming that Kissick's free speech rights were being restrained by a recently revised, more restrictive access policy requiring citizens to obtain permits to express their views inside the Wisconsin Capitol rotunda. The judge determined Kissick is likely to prevail on some of his arguments when the case goes to a full trial.
I have only read portions of the opinion so far and I am monitoring the reactions of local attorneys who have assisted numerous people cited for participating in a daily gathering in the rotunda known as the Solidarity Sing Along. I will update as it becomes more clear how this decision impacts those citations and future protests in the Wisconsin Capitol.
I am also looking for a public link to the order, but here are a few highlights from the judge's opinion:
In this suit, Kissick claims that as applied to the State Capitol rotunda, the permitting requirement impinges his First and Fourteenth Amendment rights under the United States Constitution. The subject of this opinion and order is his request for a preliminary injunction barring defendants Michael Huebsch, Secretary of the Wisconsin Department of Administration, and David Erwin, Chief of the Capitol Police, from enforcing the permitting requirement. Although the court finds little merit in some of Kissick's more sweeping constitutional arguments, he has demonstrated a strong
likelihood of success on the merits of his claim that the permitting regulations impinge
on his free speech rights and that the balance of relevant factors point in favor of a preliminary injunction of its enforcement for smaller groups in the Capitol's rotunda.
...the Access Policy on its face favors speech aimed at “promoting a cause,” and therefore contains a content-based distinction. This is no less the case because the Policy provides more favorable treatment for cause-promoting speech; one could just as accurately say that the Policy disfavors speech that does not promote a cause, and any sort of distinction between categories of protected speech is enough to label a regulation “content-based.” See Schultz v. City of Cumberland, 228 F.3d 831, 840-41 (7th Cir. 2000) (“A general ban on speech in the vicinity of a school is content-neutral, whereas an analogous ban on speech containing an exemption for speech relating to labor disputes is content-based. The former regulation requires no consideration of content before applying the ban, while the latter regulation requires consideration whether the speech in question refers to a labor dispute before it is possible to determine if the regulation applies.” (internal citations omitted)).
While the court finds some of defendants‟ evidence credible and the competing interests real, the problem falls well short of an adequate showing that a permitting requirement for “groups” as few as one person to engage in non-disruptive speech is a...narrowly-tailored solution. A fair reading of defendants‟ evidence is that the root of the problem isn't scheduling or overcrowding, it is that certain event participants -- including some who are or seek to be affiliated with the Solidarity Sing Along -- tend to be so loud and unwilling to accommodate other legitimate uses of the building that their conduct needs to be regulated. Compounding the problem is that the Capitol Police are either unwilling to enforce existing conduct rules against disruptive actors, have been unable to do so effectively because of reluctance to prosecute by other agencies, or simply need to have lower volume limits and/or higher standards of conduct.
UPDATE: OK I think this link will get you to the judge's order.
UPDATE 2: My friend JR pointed out this passage from the decision, which totally validates an argument that Solidarity Sing Along participants and other peaceful protesters have been making all along:
"...[T]he Capitol rotunda is closer to an out-of-doors, traditional public forum in that it is a capacious gathering space with a unique history as a place for government and public discourse, which admits for (indeed, was designed for) a certain level of disturbance that would not be proper in a typical state office building or even a typical state capitol."In other words, the Capitol is not just an office building as the Walker Administration has argued. The rotunda was designed as the people's chamber. It was designed to invite citizens in to give voice to their concerns.
UPDATE 3: Nearly 24 hours since this decision was released and not a peep from the state's two largest newspapers' online sites. They have some good reporters (and a lot of lazy ones) and I'm sure they will catch up eventually, but I must admit it's been fun to be part of the Wisconsin contingent of bloggers continually scooping the local professionals lately on Wisconsin issues like freedom of speech, access to safe abortion services, environmental destruction by an out-of-state mining company, and many other stories. The networking that developed during the big protests two and a half years ago among private and public employees in many industries, including many local and state politicians, is paying big dividends. We may not be able to stop all the abuses, but we know when and where they are happening and we are doing our best to get the word out.
UPDATE 4: Press release from the ACLU of Wisconsin.