The American Civil Liberties Union of Wisconsin said mid-day Oct. 8 that a settlement was reached in the federal lawsuit it filed against the Wisconsin Department of Administration concerning free speech at the Capitol.
A news release from the ACLU said that as part of the settlement, the state must create a notice system that allows groups to gather inside the Capitol without a permit.
“This is a victory because giving notice is significantly different from forcing people to ask the government for permission to exercise free speech,” stated Larry Dupuis, legal director of the ACLU of Wisconsin. “Giving notice is very informal. The state can’t deny use of the Capitol to anyone giving notice, unless someone else has reserved the entire space by obtaining a permit for the same time.”
Prior rules for permits — which were adopted by the state in November 2011, after a wave of mass protests targeting Republican Gov. Scott Walker — said groups as small as four must obtain government permission before engaging in expression “for the purpose of actively promoting any cause” inside the Capitol.
The state also adopted rules barring people from gathering in the Capitol for any performance, ceremony, presentation, meeting or rally without a permit.
The ACLU of Wisconsin challenged the rules in U.S. District Court, arguing they violated the First Amendment by requiring permits for demonstrations held inside the Capitol and by punishing protesters who gather there without a permit.
The lawsuit filed by the ACLU of Wisconsin and Madison attorney A. Steven Porter was on behalf of assistant University of Wisconsin professor Michael Kissick, who participated in demonstrations inside the Capitol, including the Solidarity Sing Along.
In July, a federal judge ordered the state to stop enforcing the permit rules for small groups. Last month, mediation presided over by Magistrate Judge Peter Oppeneer led to a settlement, according to the news release from the ACLU.
The settlement avoids a trial, which was expected in early 2014.
Kissick, in the release, said, “I’m happy because this agreement allows the Solidarity Sing Along to continue as it always has. The group has effectively been giving the state notice all along, and has always deferred to events with permits.”
Under the settlement, a person may give the DOA notice of a gathering of 12 or more people by phone, email, in person, or via a form from the state at least two business days and not more than 10 business days before an event in the Capitol.
Notice may also be given for consecutive events.
“There isn’t any question that the old permitting system was unconstitutional,” Dupuis said. “This settlement halts the state’s unwarranted punishment of individuals who gather inside the Capitol to exercise their free speech rights.”
The Wisconsin Department of Administration also issued a statement on the signing of a settlement, saying that the agreement acknowledged that permit rules dating to 1979 are constitutional.
"The Capitol is where the people’s business occurs – where all citizens should be able to exercise their First Amendment rights,” said DOA Secretary Mike Huebsch. "During the past few years, we held listening sessions about the permitting process, met with legislators, and reached out to those who failed to follow the rules required to use the space. The permit process has been repeatedly upheld as constitutional by the courts, and today’s settlement demonstrates ACLU’s agreement with the process as well. We have taken reasonable steps to ensure all visitors and citizens can enjoy our beautiful Capitol building, and I’m hopeful we can all move forward together."
The state said the permitting process has been part of Wisconsin’s Administrative Code since 1979 but "for nearly two years, one regular organized group has come to the Capitol each day at the same time and location with song books to protest at the Capitol, but have refused to obtain a permit."
The rules under the settlement agreement, according to the Department of Administration, are:
• Groups with fewer than 12 participants will not be required to obtain a permit or provide advance notice for an event, unless otherwise required under Administrative Code.
• Groups with 12 or more participants will be required to obtain a permit or provide advance notice of an event to use the Wisconsin State Capitol Building. An event not properly noticed may be deemed unlawful.
• DOA will establish an additional method by which groups may reserve space in the Capitol. An individual using this Advance Notice system must:
• Provide advance notice of at least two business days and no more than 10 business days before the planned event; and
• Provide details of the event including date, start and finish time, estimated number of attendees, and contact information for one or more people in the group who can be contacted if the event is removed due to a valid permitted event or DOA-led tour group.
• Advance notices can be issued for five cumulative days.
• Permitted events and DOA-led tours will receive priority over an advanced notice event. If a permitted event or DOA-led tour is scheduled, the Capitol Police will notify the contact that their noticed event is no longer reserved.
• Participation in a previously-noticed event that has been superseded by a permitted event or DOA-led tour will be deemed unlawful and citations or arrests may be issued for participation in that unlawful event after a warning has been given.
• All other permitting rules and policies will remain in full force and effect.