What’s been missing in the ” singalong ” debate.

Federal Judge William Conley’s ruling. That’s what’s been missing from the back and forth about whether or not the solidarity singalong should be required to get a permit to protest in the capitol four days a week from noon to 1:00 pm.

To my knowledge the only blogger, until now,  to post a link to the ruling is Lisa Mux over at Waukesha Wonk in a post titled  ” Federal judge’s ruling hailed as “a huge victory for free speech” in Wisconsin “.

I read most of the ruling a few weeks back and my understanding of the relevant aspects is this: Judge Conley found portions of the DOA permit policy unconstitutional, namely, that requiring four or more people to apply for a permit was unreasonable and that the policy actually favored political speech. Conley ruled that political speech cannot be exalted above any other form.

So judge Conley, an Obama appointee,  struck down  those particular portions of the permit policy and left the rest intact.  I would note at this point that Senator Chris Larson’s statement that he feels the singers should get a permit is, from my understanding, entirely in line with Conley’s ruling.

A trial is set for January, 2014, in a case challenging the constitutionality of the entire permit policy, brought forth by the  ACLU of Wisconsin on behalf of plaintiff Michael Kissick . It’s worth noting that in his ruling Conley wrote that he found little merit in some of the plaintiff’s more sweeping constitutional claims, which leads me to believe that there’s very little chance Conley will agree with those who claim that the constitution is the only permit the singers need to protest in the capitol.

So my question is, why is there no outcry against Conley? Isn’t he aiding Walker/Huebsch/Erwin in their crackdown on free speech by leaving the  bulk of the permit policy intact? Why no demonstrations on the steps of the federal courthouse?

If I’ve got any of this wrong I’m happy to be corrected. But I do think that any further discussion/debate about this issue should include mention of  Conley’s ruling.

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31 thoughts on “What’s been missing in the ” singalong ” debate.

  1. “Judge Conley found portions of the DOA permit policy unconstitutional”

    No. He hasn’t found anything yet. All the preliminary injunction tells you is that under the policy it was more likely in the interim before trial that Kissick would suffer an irreparable violation of his rights than the state would be handcuffed from carrying out its duties. We’ve yet to reach the merits, and the state hasn’t proven why it needs any kind of permit policy. The particulars are critical.

  2. Yes, I’ve read it. Now I’m looking forward to the state providing evidence that after 18 months of inaction it was suddenly a compelling state interest to tighten the rules to reign in a dwindling number of singers.

  3. gnarlytrombone,

    In my view Fallone implies that restrictions on free speech within capitol buildings are permissible, presumably from a constitutional standpoint. My understanding is that the singers feel that the constitution IS their permit. It actually seems to me that Fallone and the singers are at odds on this one. The last line of Fallone’s piece is that the DOA should scrap their new policy, ( his article was written well before the Conley ruling ) and start from scratch. Fallone doesn’t state a permit policy should be abandoned altogether.

  4. Fallone will tell you that judges don’t schedule trials for their own amusement. If the outcome were obvious, he would’ve ruled that a 20-person permit rule is acceptable and dismissed the case.

  5. Here’s the state’s problem: if it argues that the permits are necessary for public safety and schedule coordination, it has to explain why public safety and coordination wasn’t a problem before July.

    1. GT,

      I won’t speculate on what Fallone might tell me about such things. I was only pointing out that, in the blog post you linked to, he seems to be implicitly acknowledging that some restrictions on speech in places such as capitol buildings are, presumably, constitutionally permissible.

      I’m not a lawyer, but if you are maybe you’d share your thoughts on the likelihood of Kissick’s success in January? Do you think Conley will rule that no permits are required to protest in the capitol?

    2. “It has to explain why public safety wasn’t a problem before July.”

      Exactly!

      Or the State can introduce this relevant and very important factor, “Your Honor, Walker didn’t really get pissed off until July as he began to consider the unfavorable publicity and consequences for the 2014 election.”

      1. Duane,

        Do you have any thoughts on whether or not Kissick will prevail in January? Do you think Conley will rule that requiring a permit to protest in the capitol is unconstitutional?

        1. I’ve followed what’s been in the newspapers and here, but that’s all I know.
          Excuse, the delay, but I missed your post.

          It seems to me that the state has a point if an ORGANIZATION of a large size wants to use the Capitol for any purpose. It is reasonable to require a permit to reserve use on a “first come, first served” basis due to availability or other crowd control factors. Having said that, I don’t consider the ORIGINAL singers as an organization. The increased numbers of observers, visitors who join in the singing varies and is spontaneous. I don’t see how any one of this spontaneous GATHERING can be held responsible for obtaining a permit. And surely the judge must be aware that the singing is a protest against the governor’s actions and is covered by the freedom clauses. Also, there was no problem of “safety” until Erwin’s guys began harassing and beating up on Wisconsin citizens just visiting or joining in the singing .

          I hope Kissick will prevail, but I know nothing of the judges background or his politics, so I can’t make a call on the verdict.

  6. GT,

    Also, as to your comment on the state’s problem, it seems more likely that Kissick’s problem will be explaining why the preponderance of case law in these matters does not apply in this case. It seems plausible to me that the state can argue it exercised its discretion when it didn’t attempt to enforce the policy that was in place, such as during the ACT 10 uprising. I’m not convinced, from a legal standpoint, that they have to explain why public safety and coordination wasn’t a problem until July. I could be wrong.

  7. Conley’s temp. order is certainly open to interpretation as Conley implies in his language noting the balancing of interests, but the GOP pretense that Walker/Huebsch/Erwin are “enforcing” Conley’s order is disingenuous (not that you are suggesting this). See http://www.waukeshawonk.com/2013/07/24/aclu-of-wi-judge-never-ordered-police-to-arrest-or-ticket-peaceful-protestors/

    Note the content-neutral language in his order.

    Can anyone examining the videos assert that the various observers arrested, subsequent to the mass warnings of being subject to arrest for “spectating,” seriously contest the assertion Capitol police evince a conscious, premeditated policy that breaks with the content-neutral policy, consonant with Conley’s order? See for example, Nora Cussack’s piece at http://aclu-wi.org/story/my-bizarre-arrest-capitol

    I think Walker/Huebsch/Erwin are in contempt of Conley’s order and have written so.

    I do wish more people would look to the language of judicial opinions like at the Brad Blog; I suppose most writers find them turgid for readers.

    As for a federal judge in general fucking up an order and opinion of free speech, of course this happens all the time.

    And sure, the judicial branch ought not be immune from political pressure and examination as a coordinate branch of gov. but it is also true that a mass protest would be met with violence and loss of liberty quite easily, and the judicial branch is being appealed to RE the GOP’s (and Dems’ silence) tactic to target anti-GOP speech.

    In the meantime, Wisconsin citizens enjoy the right to petition their reps, call them out as a bunch of corrupt stooges, and freely express ourselves.

  8. MAL,

    You make some pretty strong statements. The DOA in contempt of Conley’s order, federal judges fucking up on a regular basis, the GOP and silent Dems practically conspiring to target anti-GOP speech. This is quite a list.

    Any thoughts on whether Kissick will prevail in January?

  9. – DOA in contempt of Conley’s order
    http://malcontends.blogspot.com/2013/08/judge-conley-should-hold-doa-sec.html In sum, the GOP cops are targeting speech in violation of order

    – federal judges fucking up on a regular basis
    You’re asking? No, fed judges are infallible

    – silent Dems practically conspiring to target anti-GOP speech
    My words are most Dems are bystanders, worse than perps

    As for predictions … as you say read the opinion and arguments, or at least a non-corporate-media summary.

    I think Conley will find the Repulsives are chilling speech. Targeting speech based on content. No idea what his remedy will be. The case will wind up in the Court of appeals for the Seventh Circuit, and damned if I know what they’ll do.

    Conley seems sympathetic to a broad view of free speech, and has not brought the GOP’s attempt to rewrite the history of the capitol.

    Conley quotes documents reading in part, “The soaring rotunda of the Wisconsin State Capitol is designed to induce its citizenry to be, as individuals, among the ‘resources of Wisconsin.’ Whereas some statehouses are maintained apart from the urban fabric, the Wisconsin Capitol Rotunda functions, both literally and symbolically, as a city center and is fully utilized as a public space to which all have claim.” I also rec the Capitol Historic Structural Report

    As Conley also writes in granting Michael Kissick’s motion for a preliminary injunction: “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. Rather than impose a blanket prohibition on enforcing the existing permitting scheme, however, the court will preliminarily enjoin defendants 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. …”

    http://aclu-wi.org/sites/default/files/stories/press-releases/20130211%20brief%20in%20support%20of%20motion%20for%20prelim%20inj%20efiled.pdf

    https://aclu-wi.org/media/judge-says-capitol-free-speech-restrictions-%E2%80%9Ccreate-extraordinary-chilling-effect%E2%80%9D

    http://aclu-wi.org/story/uw-professor-challenges-capitol-access-rules

    http://aclu-wi.org/media/aclu-wisconsin-sues-state-over-capitol-access

  10. MAL,

    My interpretation of what Conley wrote is that the likelihood of Kissick’s success on the merits of his claim pertains to the portions of the policy Conley struck down. It’s my impression that Conley’s words about finding little merit in Kissick’s more sweeping constitutional arguments suggests that Kissick will not prevail in seeing the permitting scheme thrown out altogether based on Kissick’s, ( and, apparently, the singers ) interpretation of their constitutional rights.

    So if the point of Kissick’s suit and the singers actions are to see capitol protest permits ruled unconstitutional, I don’t see that happening. I draw this conclusion from the opinions of legal and constitutional experts who’ve weighed in on this issue so far.

    So where’s the end game to all of this? Where does it go from here? Continued arrests until the trial in January? Will we get to hundreds of thousands of dollars in fines and court costs, and more fundraisers to pay them off? How many hours of pro bono or reduced fee lawyer time? And if Conley upholds the government’s right to require permits, then what? More arrests, fines, court costs, fundraisers, lawyers, etc, etc, etc, throughout 2014 and on up to the November elections as the case is appealed?

    And will the view of Dems as worse than perps spread as well if they don’t all jump on board? Will each of them be challenged to declare where they stand on the issue as they approach re-election in their respective districts? Will this become a major issue in the gubernatorial race?

  11. “the state can argue it exercised its discretion when it didn’t attempt to enforce the policy that was in place, such as during the ACT 10 uprising”

    The permit policy has an exemption for ‘spontaneous event…in response to an unforseen triggering event.’ The state still has to explain why it exercised its discretion on the singers. There’s no reasonable explanation why the singers didn’t pose a safety risk in July 2012 and – with fewer numbers – suddenly posed a risk in July 2013.

  12. GT,

    First of all, I don’t know if the permit policy in place during the ACT 10 uprising is the same one currently being challenged in court, so I don’t know if the spontaneous event provision was in play during the spring of 2011.

    That said, the DOA may be forced to revise it’s policy based on your point, which is something Fallone recommended in the piece you linked to previously, but I’d still say there’s no chance the judge will rule that permit requirements for protests in the capitol are unconstitutional. What would be the legal basis for a judge overturning what has been described as an ample body of case law supporting the government’s right to require some permitting process for events or protests in capitol buildings? That’s been the singers primary claim, that if they need a permit then they are being deprived of their constitutional rights.

    The fall back position has been ” we’re not an organization so we can’t apply for a permit” , or that they are there as individuals so they don’t need a permit, both of which seem to me like the maneuvers of a loose group of people playing a cat and mouse game with the DOA and capitol police, which is fine, but which should not be peddled to the progressive community as a battle for free speech with calls for fundraisers and ” which side are you on ” declarations.

  13. The critical piece of information in Fallone’s piece is that the rotunda is for legal purposes considered a public forum, subject to strict scrutiny. That means the state can’t just proffer a reasonable explanation in the abstract; it has to prove that restrictions on speech are absolutely necessary and they have to be tailored to meet a specific goal.

    You’ve read the opinion, so you must know the state didn’t present any evidence that 20 people is the point at which additional resources are necessary. Or 50. Or 100. Or 200. That was an arbitrary line Judge Conley drew as a placeholder until the case comes to trial and the state can present evidence to back up its claims. Perhaps you’d care to explain what proof it will offer in January that its policy is tailored to meet the compelling, specific interest of protecting public safety when it didn’t enforce it all those months.

    1. GT,

      Perhaps you’d care to explain why those constitutional experts who’ve weighed in on this issue to date seem to think that some form of, or even the bulk of, the state’s permitting process will be upheld in court?

      http://host.madison.com/news/local/govt-and-politics/constitutional-experts-dispute-protesters-argument-that-they-don-t-need/article_8cac882c-8137-5f09-9abf-e1535447cd14.html

      And perhaps you’d care to explain why I, or anyone else, should trust your judgement on these matters over theirs?

      1. Geoff Stone is brilliant. Donald Downs, not so much. Neither one of them mentions the keystone of the case – that the Wisconsin Capitol, unlike, say, a public park, is subject to strict scrutiny. Nor do they wrestle with the context raised by Jim Murray: ““The Walker administration for 18 months left the singalong alone,” Murray said. “That proves there wasn’t a problem.”

        Why won’t you wrestle with it?

        1. Because I’m not a lawyer, and because Jim Murray’s legal expertise appears to be in criminal defense, drunk driving, bankruptcy and divorce, not civil rights or constitutional law.

          And because I’m not convinced that you’ve identified the ” keystone ” of the case. That the state didn’t act is not proof of anything, and it’s hard for me to believe, if I understand your logic correctly, that the state can’t proffer a reasonable explanation in the abstract for a permit policy simply because they didn’t act during the period you describe.

          If Geoff Stone is brilliant would it be like him to offer an opinion to the press without knowing what he’s talking about? How about Paulson’s statement that the Conley ruling is a roadmap for the state to craft, presumably, a permit policy that can withstand a legal challenge. Or NLG lawyer Patricia Hammel, who is representing some of the singers, saying

          ” It would be ridiculous to say they can’t require a permit in any event,” she said. “A lot of people believe that, but that’s not the law.”

          Are you hanging your hat entirely on Jim Murray’s statement to the WSJ?

          1. No, you don’t understand my logic correctly (and you’re sure a quick draw on that ad hominem). When a court approaches a constitutional question, it first determines what level of scrutiny it’s going to apply: rational basis, intermediate (“rational basis with teeth”), or strict in balancing the state’s interest and rights.

            In a rational basis test, all the state would have to offer is a reasonable explanation: that its policy is crafted to serve a legitimate state interest, even if that interest is rational but hypothetical. Geoff Stone is correct. Requiring a permit to facilitate scheduling of force levels and other events has been deemed by the courts to be legitimate and therefore constitutional. And had Judge Conley been ruling using this test, he would’ve set the limit at 20 and issued his ruling.

            But what Geoff Stone doesn’t know – because he can’t possibly research every legal question thrown at him by reporters – and Jim Murray does know is that the Wisconsin State Capitol is subject to the highest level of scrutiny. Which means that the state has to offer actual evidence to substantiate its hypotheticals. At the same time, the plaintiffs can use evidence that goes to to the state’s actual intent – like arbitrary enforcement and state officials’ comments about the crackdown being more about politics or annoyance than public safety.

            That’s why I said the particulars that you seem bent on ignoring matter in this case.

            1. GT,

              Where I’m from, pointing out that a lawyer’s lack of expertise in a given legal matter may render his or her opinion sub-optimal is not considered an ad hominem attack, if that’s what you’re referring to. Not sure where you’re from.

              Have you communicated with Geoff Stone on this? Your comment could lead one to conclude you have. If you know him I’d be interested in hearing if he feels his previous remarks to the WSJ were in error in light of the points you, and presumably Murray, are making. I’m sure his professional reputation matters to him.

              I didn’t read anything in the Fallone piece that said the strict scrutiny standard absolutely requires the state to provide actual evidence to support its claims of the need for a permit policy, but maybe that’s because the ACT 10 protests were still fresh in his mind since the piece you linked to was published in December of 2011. In the wake of those protests can the state maybe argue that damage to state property, while remarkably minimal, and the increased potential for violence, also remarkably absent though threats were, apparently, thick, is enough for them to have justification for some sort of policy? I don’t know Fallone so I’m just taking a guess at why he’d omit mention of something as crucial as you point out from his writings on these matters. Maybe he implicitly acknowledged an evidentiary basis?

              I have no doubt that if plaintiffs can prove that the state has intentions beyond those officially stated, such as political, or that their policy was aimed directly at the singers, that their policy will be scrapped by the court.

              But at this point I’ve read nothing from Fallone, Stone, or any other known legal authority that would lead me to believe that the state cannot come up with SOME sort of policy that would meet constitutional muster, which would likely require a permit.

              So I’m not ignoring the particulars that you’re so bent on extolling, rather it’s just hard for me to understand how your view of these particular particulars leads to an legal determination that requiring any permit at all is an infringement of the singers first amendment rights.

              If you can clarify that for me, in detail and in layperson’s terms, I’ll be happy to stand down permanently from this discussion.

              1. I love how on the one hand you excuse yourself from actually addressing the issues I’ve raised with “I’m not a lawyer,” and then turn right around and pontificate on who’s qualified to comment.

                Of course it’s possible the state will prevail. Jimmy the Greek would say it has about a 3 in 10 chance. It sure would be nice if you’d stop playing ad hominem and appeal to authority and explain why you think it will.

                1. GT,

                  I’m not playing ad hominem, I didn’t pontificate on who’s qualified to comment, the state’s failure to act is not proof of anything, and I haven’t ignored your ” crucial particulars “, though it is true that when I don’t have expertise in something I tend to look to those who do. Again, where I’m from this is not considered a character flaw but rather good judgment.

                  And your prediction that Jimmy the Greek would give the state a 3 in 1 chance isn’t an appeal to authority, albeit an unusual authority given a case of this complexity?

                  I’m more comfortable referencing the writings and remarks of Edward Fallone, Geoff Stone, Ken Paulson, Donald Downs, etc. When any one of them, or someone else of their stature, publicly makes the argument you’re making here, I’ll come back and post an acknowledgement that you were right all along.

                  In the meantime, maybe you could offer some explanation as to why I should accept your views of what’s critical in this case. Are you a lawyer? Do you have intimate knowledge of this case? I appeal to authority because I’m not one in these matters. You write as though you are. Is that the case?

                  1. I explained that Geoff Stone wasn’t asked whether the state would prevail in a strict scrutiny free speech case; he was asked whether permits are generally permissible. That’s not his fault; it’s the reporter’s fault.

                    And yet you also apparently accept Fallone’s analysis that it’s a strict scrutiny case. You apparently didn’t bother to click on the Jimmy the Greek link, which is an empirical analysis by another First Amendment expert showing plaintiffs are successful in these instances 78% of the time.

                    I don’t know what bug crawled up your ass over this issue – and you can’t be bothered to explain your reasoning. But that won’t stop you from accusing other people of precisely the same thing.

                    1. GT,

                      I did click on the Jimmy the Greek link. The kind of case Kissick has brought doesn’t seem to have been analyzed in the study you linked to. The author of that study reviewed the application of strict scrutiny to among other types of speech cases ” Viewpoint Discrimination in Access to Public Forums ” which doesn’t sound to me like it would apply to a permit policy that judge Conley has determined to be content neutral. I’m guessing Jimmy the Greek would place no bets on Kissick based on this study.

                      And you may know what Geoff Stone was asked, but you’re in no position to know what Geoff Stone knows, which is what you wrote, unless you’ve communicated with him. Surely we can agree that precise language is key both in law and effective communication.

                      As for the bug that’s crawled up my ass, I’m not sure if that’s an ad hominem attack on me or not because, just as I’m not a lawyer, I’m not a student of rhetoric either.

                      I’m just an average guy from up north waiting on someone smarter than me from down south to tell me why the singers claims of first amendment rights infringement is correct, and why we all need to get behind them.

                    2. I see. You’re not a student of the law or anything else, but your interest is purely academic.

  14. Slightly OT, kindly grant me the last word here.

    File under presidential appointment, revolving door politics and judicial action and integrity. Again more urgent than the above topic as Congressional approval is pending this week:

    http://www.theguardian.com/world/2013/sep/06/fbi-lawyer-surveillance-judge-valerie-caproni

    From FBI attorney to Northrupp Grumman, and now to a potential life-time appointment to a federal judgeship by Barry.

    I’m expecting DPW to come right out with a position statement on this and their advice to Baldwin and Barry on the Syrian debacle. /s

    I really don’t take any joy in saying that I didn’t vote for him. Just the facts.

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