A Dane County, Wisconsin judge has declared unconstitutional an administrative rule used by Governor Scott Walker's administration to cite hundreds of Capitol singers, observers, protesters, and journalists last summer. I don't have time to write much at the moment, just want to get the news out. For more background, go the Wisconsin Citizens Media Cooperative.
Text of the judge's ruling below.
STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY
STATE OF WISCONSIN,
Plaintiff, DECISION AND ORDER OF DISMISSAL
vs. Case No. 13FO2108
MICHAEL W. CRUTE,
On July 24, 2013, Michael Crute participated in the Solidarity Sing-Along in the Capitol rotunda. The police issued him a citation for not having a permit. Mr. Crute moves to dismiss the citation. He argues that the permit requirement violates the First Amendment because it applies, on its face, to very small groups. It is therefore not narrowly tailored to address the legitimate interests of the government in requiring a permit. I agree, and grant the motion.
Given the procedural posture of the case, the factual record here is scant.
For some time leading up to July 24, 2013, various people engaged in a noontime sing-along at the Wisconsin State Capitol rotunda. This came to be known as the Solidarity Sing-Along. It was generally a form of protest against recent legislation changing public employee collective bargaining rights and other issues. A useful discussion of the Capitol rotunda as a forum and the Solidarity Sing-Along appears in Kissick v. Huebsch, 2013 WL 3451571, *4-5 (W.D. Wis. July 8, 2013). The parties here acknowledge the facts set forth in Kissick. 1
Kissick was a federal court challenge to the constitutionality of permit requirements applicable to the Capitol. It will be discussed in some detail below. The court in Kissick issued a preliminary injunction enjoining the state from requiring a permit for events in the rotunda anticipated to attract fewer than twenty participants. Id. at *22.
The following additional facts are taken from the affidavit of Todd Tuschel, a Capitol Police captain. The affidavit is attached as Exhibit I to the state’s brief in opposition to Mr. Crute’s motion to dismiss.2
As of July 24, 2013, while the number of singers regularly exceeded twenty, no one associated with the Solidarity Sing-Along obtained a permit. To address that, the Capitol Police followed certain procedures they believed to conform with the Kissick injunction. Aff. ¶¶ 8-9.
According to procedure, the Capitol Police provided the singers with notice when the police considered the event to become unlawful and gave the singers an opportunity to leave the building without being arrested. Id. ¶ 10. The procedure included placing a sign in the rotunda substantially as follows:
“If we determine that your event is larger than 20 people and you do not have the required permit we will declare the event unlawful. If participants do not move outside or disperse they will be subject to arrest.”
When the number of participants exceeded twenty, Capitol Police used a speaker to broadcast a message:
“Attention in the Capitol. This is the State Capitol Police Chief David Erwin. I have determined that your group or event does not have the required permit. I am declaring this an unlawful event. Please move your group outside or disperse immediately. If you do not, each participant is subject to arrest.”
Id. ¶ 11.
After that message was broadcast twice, law enforcement officers approached the singers and asked them to leave. Those who did not were arrested and issued forfeiture citations. Id. ¶ 12.
That procedure was followed July 24, 2013. Mr. Crute was one of those issued a citation that day.
A pretrial conference was held September 6, 2013. Mr. Crute requested a motion hearing on his contemplated First Amendment motion. He filed his motion October 28, 2013. We held a status conference the same day and set a briefing schedule.
November 21, 2013, the state moved to amend the citation from a charge under § Adm 2.14(2)(v) to a charge under § Adm 2.14(2)(vm)(5). The original charge, under sub.(v), applied to one who “conducts an event” in the Capitol without approval of the Department of Administration. The amended charge, under sub.(vm)(5), applied to a “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.” An event may be declared unlawful if its participants were in the building “without authorization.”
Within a week of the state’s motion to amend, Mr. Crute filed a letter stating that he did not oppose the motion to amend. He enclosed a revised motion to dismiss and brief
addressing the new charge. Because both rules sought to enforce a permit requirement, the issue was essentially the same under either subsection. The parties followed the established briefing schedule. Oral argument was held January 23, 2014 and the matter is now ready to be decided.3
1. The rule.
As of July 24, 2013, the day of Mr. Crute’s citation, Chapter Adm 2 of the Wisconsin Administrative Code had been temporarily amended by emergency rules issued April 11, 2013, effective April 16, 2013. Those rules expired September 12, 2013. The emergency rule in question provided as follows:
“(2) In order to preserve the order which is necessary for the enjoyment of freedom by occupants of the buildings and facilities, and in order to prevent activities which physically obstruct access to department lands and buildings or prevent the state from carrying on its instructional, research, public service, or administrative functions, and pursuant to s. 16.846, Stats., whoever does any of the following shall be subject to a forfeiture of not more than $500:
(v) Without approval of the department, conducts an event in those buildings and facilities managed or leased by the department or on properties surrounding those buildings.
(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.”
Wis. Admin. Code § Adm 2.14(2)(v) and (vm)(5).
2. The parties’ positions.
Mr. Crute’s argument is that the rule is unconstitutional on its face because it required even very small groups of individuals to obtain permission before engaging in expressive activity in the Capitol rotunda. Therefore, the rule is not narrowly tailored to meet the legitimate governmental interests underlying a permit requirement, and the rule fails the well-established “time, place, and manner test” that has developed in First Amendment jurisprudence.
The state urges me to follow, even adopt (Brief at 9), the Kissick decision, and thus, in our case, the state does not dispute the premise that the rule cannot be constitutionally applied to very small groups.4 The state argues instead that, following Kissick, it limited enforcement of the rule to groups of more than twenty, thus avoiding any constitutional problem.
3. The rule is not narrowly tailored to meet a significant governmental interest.
The Kissick case, 2013 WL 3451571, is central to my decision. Both sides rely on it; as noted, the state expressly urges me to adopt it. I agree that it is well-reasoned and supported by clearly-established precedent. I will follow its reasoning.
In that case, Mr. Kissick, who wanted to occasionally participate in the Solidarity Sing-Along, filed an action in federal court against the Secretary of the Wisconsin Department of Administration and the Chief of the Capitol Police. He claimed that the permit requirement 5 as applied to the State Capitol rotunda infringed on his First and Fourteenth Amendment rights under the United States Constitution. He sought a preliminary injunction enjoining the enforcement of the permit requirement.
Judge William M. Conley wrote a thorough decision carefully evaluating Mr. Kissick’s various constitutional arguments. While the court found little merit in some of the arguments, it determined that Mr. Kissick demonstrated a strong likelihood of success in establishing that the permit requirement was unconstitutional in two respects. The one relevant here is that the requirement was not narrowly tailored to a significant governmental interest. Therefore it was not a reasonable restriction on the time, place, and manner of protected speech.
That conclusion forms the sole basis for Mr. Crute’s challenge.
Because Kissick is central to this motion, I will describe the court’s holding on this single point in some detail; further discussion of the substantial First Amendment authority on which it is based becomes unnecessary.
It is well-established that:
“[t]he government may impose any reasonable restriction on the time, place, or manner of protected speech, so long as it is ‘justified without reference to the content of the regulated speech, . . . narrowly tailored to serve a significant governmental interest, and . . . leave[s] open ample alternative channels for communication of the information.’ [Ward v.] Rock Against Racism, 491 U.S.  at 791 [(1989)] . . . ”
Id. at *15.
The court determined that the permit requirement passed muster under two of the three “time, place and manner” criteria. The general permit requirement for all events regardless of size appeared content-neutral. Id. There was an alternative channel for communication: the lawn outside the Capitol.
Id. at *20.
In a careful analysis, however, the court concluded that the plaintiff had a “fairly strong likelihood of success on the merits” (id. at *21) of his argument that the policy was not narrowly tailored to the significant governmental interests underlying a permit requirement. The court discussed the governmental interests served by a permit requirement. Those included ensuring adequate police resources and managing demands for access to the Capitol from different groups. Id. at *15.
The court relied on the testimony of Todd Tuschel, the Capitol Police captain who supplied an affidavit offered by the state in our case. Id. at *15-*17. The state here directs my attention to other materials establishing the legitimacy of the government’s interest in regulating events at the Capitol, including a newspaper article from May, 2011 (pre-dating Kissick) and an affidavit of a Capitol tour guide. Exhibits G and H to state’s brief. That affidavit was actually introduced in the Kissick case.
The state argues that there is a well-established need to coordinate uses of the rotunda and allow the enforcement of a permitting system. Brief at 9. That is surely true. However, these sorts of considerations were carefully evaluated by the court in Kissick. All things considered, the court observed:
“Despite this evidence, defendants offer very little in the way of a nexus between a strict permitting requirement for small groups and the significant state interest of maintaining peace and order in the Capitol. For example, the Capitol police do not need a permit violation to arrest and remove individual troublemakers from the building – - they can deal with disruptive behavior by enforcing a variety of state statutes and administrative regulations governing boisterous, violent or abusive conduct . . .”
Id. at *16.
The court explained that the real problem sought to be addressed by the state is that of event participants who become disruptive. That problem could be dealt with by enforcing “truly narrowly-tailored, existing rules . . .” Id. at *18. While “a content-neutral restriction will not be struck down simply because there is some imaginable alternative that might be less burdensome on speech,” the court concluded:
“Here the current permitting requirement sweeps in an enormous amount of ordinary activities that are unlikely to present any significant disturbance in the Capitol. It thus unnecessarily creates a chilling effect on the speech of the majority of the individuals who are willing to follow reasonable conduct standards and coexist harmoniously with tour groups, permitted events, and other legitimate state activities. In this respect, the restriction seems to burden substantially more speech than in necessary to further the government’s legitimate interest.”
Id. (citation, footnote, and internal quotation marks omitted).
Because the evidence also established that large events can be disruptive solely because of their size, even though no individual may be acting in a disorderly manner, the court found that the state did:
“have a significant interest in acquiring an advance permit for every event that can reasonably expect to attract large crowds. At the same time, the one- and four-person permitting requirements currently in place are plainly not tailored to address that interest.”
Id. at *19.
The court’s conclusion on this point is worth quoting at length, for its eloquence of expression, its careful reasoning, and its substantial foundation in well-established authority:
“Ultimately, the court concludes that as written, the permitting requirement draws in too much expressive conduct in exchange for too little administrative benefit. It is, therefore, not narrowly tailored to serve a significant governmental interest. This finding is consistent with the holdings of federal courts across the country, which have virtually unanimously struck down permitting requirements for small groups. See, e.g., Cox v. City of Charleston, SC, 416 F.3d 281, 285 (4th Cir.2005) (“[T]he unflinching application of the Ordinance to groups as small as two or three renders it constitutionally infirm.”); Am.-Arab Anti–Discrim. Committee v. City of Dearborn, 418 F.3d 600, 608 (6th Cir.2005) (“Permit schemes and advance notice requirements that potentially apply to small groups are nearly always overly broad and lack narrow tailoring.”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir.1996) (expressing concern about the “application of [a] permit requirement to groups of ten”); Knowles v. Waco, 462 F.3d 430, 436 (5th Cir.2006) (“[O]rdinances requiring a permit for demonstrations by a handful of people are not narrowly tailored to serve a significant government interest.”); Marcavage v. City of Chi., 659 F.3d 626, 635 (7th Cir.2011) (noting the “powerful consensus” of courts finding “permit requirements for groups of ten and under to be either unconstitutional or constitutionally suspect”).
*20 As defendants appropriately point out, none of the above-cited cases apply to interior spaces, but the 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. And, although its four wings are offices for many, most of this work is sufficiently remote to be impacted by small groups—otherwise how do defendants explain the myriad events and large groups regularly parading through and gathering for events in the Capitol rotunda and its other public spaces. Moreover, the court relies on these cases not so much as a guide to the precise numerical floor below which the state cannot require a permit, but rather for a sense of the broad judicial consensus that pre-permitting schemes which limit speech in public places must serve more than just scheduling or administrative functions.
Said another way: permits chill speech. “Both the procedural hurdle of filling out and submitting a written application, and the temporal hurdle of waiting for the permit to be granted may discourage potential speakers.” Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th Cir.1994).
As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly.
... Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Watchtower Bible & Tract Soc. of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 164–66, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (quoting Thomas v. Collins, 323 U.S. 516, 539–40, 65 S.Ct. 315, 89 L.Ed. 430 (1945)). The extraordinary chilling effect of permits explains why courts are careful to require that “if the legislative body determines that a permit requirement is absolutely necessary to effectuate [its] relevant goals, it should tailor that requirement to ensure that it does not burden small gatherings posing no threat to the safety, order, and accessibility of [the forum].” Cox v. City of Charleston, SC, 416 F.3d at 287.”
Id. at *19-*20.
Having concluded that the permit requirement for events involving few participants was unconstitutional, the court had to decide how to fashion a preliminary remedy. It observed that important concerns of federalism and separation of powers ordinarily would favor severing the part of a law determined to be unconstitutional, but that would be problematic here where the provision at issue was an integral part of the rule. The court concluded:
“*22 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. See Cox v. City of Charleston, 416 F.3d at 286–87 (finding a permitting ordinance facially unconstitutional, but declining “to announce a numerical floor below which a permit requirement cannot apply”). 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 call on additional police officers if necessary.”
Id. at *22.
In sum, Kissick established that the rule Mr. Crute was accused of violating is unconstitutional. It is not narrowly tailored to the legitimate state interest of preserving order in the Capitol. That legitimate interest can be adequately addressed by application of a narrowly-tailored statute or ordinance (e.g., disorderly conduct) to individual offenders. Further, because larger groups can be disruptive simply because of their size, a permit requirement with a reasonable numerical floor on the number of anticipated participants would pass constitutional muster.
4. Whether the state chose to follow the federal court injunction is no moment as concerns the facial constitutionality of the rule.
What was before the court in Kissick was a request for a preliminary injunction. That is an equitable remedy that is, by its nature, temporary. The court assesses the likelihood of success and then balances the respective harms to the parties of granting or not granting an injunction pendente lite.
One solution available to the Kissick court was simply to enjoin enforcement of the policy altogether, because the rule did not provide a numerical floor. The court considered that, and noted that that is exactly what another court facing a similar issue did. Kissick, id. at *22, citing Cox v. City of Charleston, SC 416 F.3d 281, 286-7 (4th Cir. 2005).
However, the court in Kissick took a different approach. Given the equitable nature of the preliminary proceeding, the court attempted to strike a balance that would protect the rights of persons like Mr. Kissick to assemble and speak while also acknowledging the legitimacy of the state’s need to manage demands on the rotunda and to preserve order. Accordingly, it enjoined enforcement of the rule to groups anticipated to exceed twenty.
For our purposes, the import of Kissick is clear: the rule is unconstitutional on its face. If amended to provide a reasonable numerical floor, that would solve the constitutional problem. At the time Mr. Crute was cited, the rule was not so amended. It remained facially unconstitutional.
We need go no further. An unconstitutional law is a legal non-entity:
“’An unconstitutional act of the legislature is not a law. It confers no rights, imposes no penalty, affords no protection, is not operative, and in legal contemplation has no existence.’”
G. Heileman Brewing Co. v. City of LaCrosse, 105 Wis. 2d 152, 161
(Ct. App. 1981), quoting John F. Jelke Co. v. Beck, 208 Wis. 650, 661 (1932).
“An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.”
Ex Parte Siebold, 100 U.S. 371, 376-377 (1879).
The state argues that because it followed the injunction and did not enforce the rule with respect to groups of twenty or fewer, the rule survives constitutional scrutiny. I respectfully disagree.
First, while I respect the Kissick court’s fashioning of interim equitable relief, I do not get to the question of an interim remedy here. Our case is not about injunctive relief. It is about the state’s seeking to exact a penalty from a citizen who was exercising his right to free speech and assembly. The rule he stands accused of violating is unconstitutional on its face. The rule is void; the citation must be dismissed. There is nothing more to be decided.
Second, I respectfully reject the state’s view that the rule somehow changed after Kissick - - “the regulations at issue in this case are the regulations as interpreted by the district court’s decision.” Brief at 1, emphasis in original. That statement does not correctly characterize the Kissick court’s ruling. The court did not interpret the regulation. Indeed, there was nothing to interpret. The rule clearly applied to very small groups as well as large ones. Therefore it was unconstitutional, period.
The Kissick court had no power to make or re-make an administrative rule. It did not do so. The Kissick court’s preliminary injunction was a way to balance, temporarily, the competing interests of the parties. The court’s ruling must be respected, but it is not self-executing. The state never amended the rule to conform to the preliminary injunction. If the state wished to penalize citizens for speaking and assembling without a permit, it was required to do so under a rule that is constitutional.
Third, it is worth noting that Captain Tuschel’s affidavit does not establish that the Capitol Police did in fact comply with the injunction. The affidavit establishes that the police issued citations to people when the number of participants exceeded the twenty-person threshold, regardless of what was anticipated.
Yet, that is not what the Kissick court said. The court said the rule could not be applied to gatherings that “are anticipated to attract twenty or fewer persons.” Id. at *22 (emphasis added). While that may seem to be a technical distinction, it is not. A person might participate in a gathering, believing in good faith that it would not attract twenty people. When the twenty-first person happened to come by and join in, the rule as interpreted by the Capitol Police would be violated and everyone in the group would be subject to penalty. That is clearly not what the preliminary injunction contemplated in prohibiting enforcement of the rule when a gathering was anticipated to attract twenty or fewer persons.
Finally, there is a fundamental problem with the state’s position that the rule can survive as long as the state follows its interpretation of the federal court’s preliminary injunction. It is this: people should be able to know, by reading the law, what limits the state has set on their right to free expression, and whether their conduct will be considered unlawful and subject to penalty. People should not have to wonder how the agency charged with enforcing the rules will decide to interpret or apply them.
The rule under which Mr. Kissick was charged was an “emergency rule.” If the state wanted to enforce a rule consistent with the Kissick preliminary injunction, it could have amended it by another emergency rule. Kissick was decided July 8, 2013. By July 24, when Mr. Crute was ticketed, the emergency rule had not been amended. The interpretive Access Policy had not been amended. The ultimate settlement in Kissick took a different approach to the permitting requirement altogether.
J. Olson affidavit, January 2, 2014, and attached materials.
As the court said in Kissick, permits have an “extraordinary chilling effect” on speech and assembly. Id. at *20: “Both the procedural hurdle of filling out and submitting a written application, and the temporal hurdle of waiting for the permit to be granted may discourage potential speakers.” Id. (citation and internal quotation marks omitted). To these, we should not add the even more basic hurdle of having to guess whether a permit will be required at all.
As of July 24, 2013, where would a person, wishing to speak and assemble lawfully, go to find out if a permit was required? The rule itself had no floor, and was therefore
unconstitutional. The interpretive Access Policy set the floor at four participants, which was likewise unconstitutional. The state now asserts it intended to follow Kissick, but, in fact as we have seen, it did not. Even now, the state has argued in another of the singer cases that the rule was constitutional even without the limitation of the Kissick injunction. See fn. 4 at p. 6 above.
The confusion and uncertainty spawned by the state’s failure to enact a clear rule complying with the First Amendment is illustrated in a compelling example offered at oral argument by counsel for Mr. Crute:
Let's say I'm a member of the Bad River Band of Native Americans up near Lake Superior in the vicinity of what's planned to be a new mine, and I'm very concerned about the potential pollution of the waters in our little area of tribal land. And I get together two minivans full of other Native Americans, and we want to go down to the Capitol and have a twelve-person demonstration in favor of protecting our tribal lands in the Capitol rotunda. And I want to figure out whether I'm going to need a permit for my twelve-person demonstration or not.
And here's the attitude that I take going in. If I'm going to have to get a permit, I am not going to do it, because I don't want to assume the responsibilities, including the financial responsibilities talked about in the Access Policies, that come with signing a permit, and I don't want to represent myself as responsible for the behavior of these other people that are going with me. So I'm happy to go down and demonstrate with my group of twelve if I don't have to get a permit. But if I have to get a permit, I'm not going to go.
So what do I do? I look on the internet, and I see what I can find that governs who needs a permit to demonstrate in the Capitol. And I find the Wisconsin Administrative Code provisions, including the one at issue here, that say you need a permit for any demonstration at all, even a group . . . as
small as two people. So it looks like I need a permit, so I decide I'm not going to go.
But somebody says, well, you should look beyond the Administrative Code. So I look at the Access Policies, which are also available online. And the Access Policies say you need a permit for a group as small as four. So I decide not to go.
And somebody says, well, I heard that there was a preliminary injunction. And I say, okay, I can look that up. And I say, well, here, they're enjoined from enforcing this against people who are going to have a event that's anticipated to be less than 20. There's a federal court order that prohibits enforcement against an event anticipated to be less than 20. So you can go.
But then somebody else says, well, wait a second, I heard that's not what's going on in the Capitol. Even if you anticipate that you're just going to have the twelve people you're taking down in your two minivans, if you're in that Capitol rotunda, and you attract sympathizers to the point where your gathering gets to be 21, they can cite you all for not having a permit. And it's true that they may warn you, but if you've got stubborn people who are not going to leave when they get that warning, you're going to have hauled people down there to get cited as part of a gathering that is protected by this federal preliminary injunction, and they're going to be cited anyway. It's protected because it was anticipated to be less than 20, but you're going to be cited anyway.
So then I decide, well, maybe I'm not going to go, but I want to ask the Capitol Police what they're doing. So I call long distance to Madison. I talk to somebody in the Capitol Police. And I say, what are you doing? And they say, well, we're not exactly following the preliminary injunction, because we never ask anybody how big their gathering was anticipated to be. We just count up to 20 people, and then we declare it unconstitutional when it gets to 21. We declare it an unlawful assembly when it gets to 21.
So I say, well, maybe we can all take signs that say, "please don't join our gathering," because if we get over 20 people, we're all in hot water.
But then I say to the Capitol Police, you know, that may be the way you're doing this today, but how do I know you're going to be doing it that way next week when I get my two minivans of Native Americans down there? Is this written down anywhere? And he says, "no."
And I say, well, you did emergency rules in April. If there's anything that constitutes an emergency, it would seem to me to be a federal court decision that your Administrative Code provisions are unconstitutional, most likely, but you haven't done any emergency modifications to these rules to tell me that even if I keep my gathering under 20, I'll be safe from arrest. You could issue Access Policies without any red tape at all, as you did in April. And you haven't reissued your Access Policies to tell me that I'll be safe if I keep my group to under 20. All I've got is word of mouth on what your day to day practice is. I'm sorry, I cannot take the risk of bringing my Native Americans down to protest water pollution.
That . . . is a perfect example of chilled speech, and that's what our constitutional jurisprudence that declares these provisions unconstitutional on their face is designed to prevent.
Transcript of oral argument, January 23, 2014, pgs. 25-29.
For these reasons, the state’s assertion that it followed its understanding of the Kissick court’s preliminary injunction does not change the fact that the rule is on its face unconstitutional and void, and it furnishes no legal basis to exact a penalty from Mr. Crute for speaking and assembling.
5. The state’s arguments that the rule does not provide “unfettered discretion” and is not overbroad, miss the mark.
Finally, the state makes two arguments that do not meet the point of Mr. Crute’s challenge.
First, the state notes that the Kissick court rejected a challenge based on the claim that the rule provided unfettered discretion to the Capitol police. That is true, but it has little to do with the challenge presented here. Our case presents a focused argument under one requirement of the time, place, and manner test: that the rule be narrowly-tailored. That is different from the question whether the rule gave unfettered discretion to the Capitol police.
The Kissick court agreed with the state that the policy did not grant unfettered discretion to the police. It still found the policy unconstitutional under the time, place, and manner test.
Second, the state argues that the permit requirement is not overbroad because it has a limiting construction available to narrow the statute and therefore the rule does not “reach a substantial amount of constitutionally protected conduct.”
Brief at 12-15.
However, the rule here does not admit of any limiting construction. It contains no language that could be construed to limit its application. It is not for the courts to supply out of whole cloth what the drafter of the rule failed to write.
The related question – the amount of constitutionally-protected conduct – reflects an understanding of the Kissick decision different from mine. In Kissick, the court evaluated several constitutional challenges to the access policy, including one based on overbreadth and vagueness. That specific challenge asserted that the words “rally” and “event” were unconstitutionally vague and overbroad. The Kissick court rejected that challenge, observing among other things that before someone can be punished under the policy, the police must give notice that the event has been declared unlawful and a participant has the opportunity to withdraw. The court concluded therefore that the permit scheme did not “by reason of vagueness, reach ‘a substantial amount of constitutionally protected conduct.’” Id. at *12. (citation omitted)
That is true, but it is a distinctly different issue from the challenge made by Mr. Crute. Mr. Crute asserts that the policy is not narrowly tailored to a significant government interest under the time, place, and manner test. That is the basis on which the Kissick court found the permit requirement unconstitutional. In other words, the fact that the policy may not be unconstitutionally vague does not mean that the rule meets the narrow–tailoring test under the time, place, and manner principle. That is what the court said in Kissick.
It is also worth noting that the First Amendment protects expression, not just the right to be free from punishment for expression. As stated in Mr. Crute’s reply brief at 19:
“If all the First Amendment protected were the right to be free from punishment for expression, this would be a good argument, but the First Amendment also protects the right to expression itself. A person given notice that an event is unpermitted can only escape punishment by curtailing his or her expressive activity and that coercion, in and of itself, is a violation of First Amendment rights.” (footnote omitted).
Contrary to the state’s position, the Kissick court clearly found that because the rule provided no numerical floor, it did reach a substantial amount of constitutionally protected conduct:
“Here, the permitting requirement sweeps in an enormous amount of activities that are unlikely to present a significant disturbance in the Capitol.”
Id. at *18.
The rule Mr. Crute is charged with violating is not narrowly-tailored to the legitimate governmental interests it seeks to promote. It is not a valid time, place, and manner requirement. It is unconstitutional on its face. The citation must be, and it hereby is, dismissed.
This is a final order for purposes of appeal.
Dated: February __, 2014.
BY THE COURT
John W. Markson
Circuit Court Judge
cc: AAG Rebecca R. Weise
Attorney Jeff Scott Olson