Recently, there's been considerable Wisconsin media coverage of the fact that non-participant observers at the Wisconsin Capitol Solidarity Sing Along were warned that they were subject to arrest and in some cases arrested (earlier DailyKos diary on this topic).
The Department of Administration then represented that observers would no longer be subject to arrest. (i.e. Department of Administration spokeswoman Stephanie Marquis: “observers will not receive citations”).
"Nora Cusack thought she was making it clear she was not participating in the Solidarity Sing Along at the Wisconsin Capitol on Thursday. The Madison resident held a sign that read on one side, 'I am observing only,' and on the other, 'Observers will not receive citations -- DOA, August 7, 2013.' She says she watched the action below her from the first-floor balcony and didn't sing, hum or even tap her foot."
She was arrested and given a citation for "Unlawful Assembly. Brings signs supported by standards or sticks". violation: "2.14(2)(vm)(5)". See citation here:
Cusack pointed out that her sign contained no standards or sticks - it was simply paper.
Here are pictures of Cusack with her sign:
I've seen her sign myself. No standards or sticks (and you can see that for yourself in the photos).
A few days ago I was standing in her vicinity, on first floor, for much of the Sing Along. She functioned purely as an observer - no singing, no clapping, no holding of signs other than the "I am observing only" sign.
Such an arrest - of a pure observer - is explicitly authorized in Walker's new Emergency Rule 2.14(2)(vm)(5), which states:
(vm) Any participant or spectator within a group constituting an unlawful assembly, who intentionally fails or refuses to withdraw from the assembly after it has been declared unlawful, shall be subject to the penalties identified in sub. (2) (intro.). Any event may be declared unlawful if its participants:
5. Enter or occupy any building or facility managed or leased by the department, without authorization
This rule - 2.14(2)(vm)(5) - is what almost all of the Wisconsin Capitol arrests and citations are for. This rule appears clearly unconstitutional. The right to observe events is strongly protected by the First Amendment and a wealth of court precedent.
[Moreover, while application of sub (5) as a basis for declaring unlawful assembly might make sense for a nonpublic DOA facility, it appears to make no sense in the case of the Capitol - since the Wisconsin Capitol is a public forum. And the Wisconsin Constitution even states that the doors must be open to the public when the legislature is in session; entering or being in the Capitol does not require authorization.]
The two other arrests Thursday were also overreaching and somewhat odd. The "offense" was use of a small battery-powered personal amplification device outside the Capitol. The video of the arrests is worth watching:
It appears that this issue (the right to use a battery-powered personal amplification system outside the Capitol) was litigated and won by Ben Masel years ago.
The bulk of the Capitol Police activity on Monday and Tuesday of this week was intensively directed at trying to disrupt a block letter sign spelling out the word "UNINTIMIDATED".
See latter part of this blog post for Monday.
On both Monday and Tuesday, multiple waves of arrests of people holding the block letters (i.e. arrests specifically targeting speech). As people were arrested, new people stepped in to take their place.
The police also began "arresting" letters. We made new ones!
First they "arrested" an N. The next day, they kept "arresting" letters, but replacement letters filled the breech
After one T and two I-s were "arrested", a spontaneous reformation of "UNITED" occurred.
On Wednesday (8/21) I was arrested. Holding this sign (quoting Washington, Jefferson, and Franklin on Freedom of Speech):
The sign was confiscated. #Irony
The First Amendment Protection Fund has been established to help defray direct legal costs associated with the Wisconsin Capitol arrests.
The Sing Along is joyous these days. We are Exuberant and UNINTIMIDATED.