Edward A. Fallone, a constitutional law professor at the Marquette University School of Law explains why the new DOA rules restricting assembly in the Capitol are unconstitutional.
The requirement that a fee be paid in advance of the exercise of First Amendment rights constitutes a prior restraint on the exercise of free speech. See Forsyth County, Ga. V. Nationalist Movement, 505 U.S. 123 (1992). Advance fee requirements are recognized as a prior restraint because some individuals will forego the exercise of their rights rather than apply for advance permission or pay the fee. Prior restraints on the exercise of free speech are highly disfavored under constitutional law.
In summary, the new DOA policy is susceptible to legal challenge on the grounds that it is a facially overbroad infringement upon the First Amendment rights of protestors. This is because, as written, the new policy can be applied in a way that allows the state to impose advance fees on the indigent, on the basis of unbounded police discretion, and in circumstances where the size of the group affected does not justify any purported state interest in public safety. Potential plaintiffs do not need to wait and bring an “as applied” challenge to the law when it is actually applied against them in an unconstitutional fashion. This is because there is a long established First Amendment exception to the “as applied” rule that will permit a facial challenge to be brought.
While this is obviously not a legal judgement, Professor Fallone lays the groundwork for a Constitutional challenge to these draconian rules.
We shall spread the word: Defending Wiscosnin families is consonant with defending our liberty.
Though legally this issue is a rout [see Widgerson today]; morally and politically I believe that defending liberty is a: Good thing.