August 28, 2013 by Harriet Rowan
Since Wednesday, July 24th the Wisconsin Capitol Police have arrested over 150 people, issuing over 300 citations. The arrests have been made for participating in the two-year tradition of singing at the Capitol from noon to 1pm, called the Solidarity Sing Along, in a group of 20 or more without a permit.
Concerned Wisconsin citizens and their allies have been gathering at the Wisconsin State Capitol every weekday since March 11, 2011, carrying the spirit of the Wisconsin Uprising sparked by Governor Scott Walker’s attacks on collective bargaining. These folks gather every day to sing songs: from civil rights era classics like “We Shall Overcome” to union anthems like “Solidarity Forever,” many with altered lyrics that represent the current political atmosphere in Wisconsin.
Despite the heavy-handed arrests that have drawn widespread criticism and outrage, Wisconsin’s mainstream media seems to be missing many of the critical facts about the recent crackdown on dissent.
Capitol Crackdown Reaching Crescendo After Months of Increasing Pressure
The Solidarity Sing Along, which began in March of 2011, has faced gradually escalating police intervention over the past two years. In December of 2011 the Department of Administration (DOA), headed by Governor Scott Walker’s appointee Michael Huebsch which controls access to the Capitol and all other state buildings, implemented a new Wisconsin State Facilities Access Policy (often referred to as the Capitol Access Policy). The new policy stated that groups of 4 or more needed to apply for a permit to hold an event in the Capitol.
The DOA held a few informational sessions about the new policies. Many frequent participants in the Solidarity Sing Along and other concerned parties attended the meetings, but most of their questions were answered incompletely or not at all. The DOA failed to send a lawyer who could address specific legal concerns.
Jocelyn Webster, a Karl Rove protégé and the spokesperson for the DOA at the time, attended the meetings and gave anemic answers to a handful of questions. In response to questions about what would happen should individuals continue to gather at the Capitol for the Solidarity Sing Along and other events without securing permits, Webster stated, “No one is going to be arrested for not being in compliance with the permit policy. It’s kind of funny that anybody even thinks that they would be.” Recent actions in the Capitol have turned her statement on its head, validating the legitimate concerns of those who questioned the policy from the beginning.
The DOA’s new Capitol Access Policy went into effect in December 2011 but was not enforced rigorously until Chief Charles Tubbs, who was widely applauded for his cooperative community policing tactics, resigned to take a different position. David M. Erwin was hired as the new chief in July 2012. Erwin is a former Marine and previously served as the captain in charge of Gov. Scott Walker’s security detail, the Dignitary Protection Unit of the Wisconsin State Patrol.
Shortly after assuming the position, Erwin began ramping up policing tactics. When participants in the Sing Along continued gathering without a permit, Erwin began citing perceived leaders of the Sing Along for various administrative code violations. Between September 2012 and the most recent crackdown in July 2013, Capitol Police issued over 100 citations, many of them delivered to people’s homes by Capitol Police officers or delivered in the mail. Only one charge, for sidewalk chalking, has been successfully prosecuted, a large portion have been dismissed, and the rest are still open cases.
Judge Conley Did Not Rule That Capitol Police Should Arrest Groups of 20+
The most recent round of arrests was sparked on July 8, 2013 when U.S. District Judge William Conley issued a preliminary injunction in a lawsuit that had been filed by the American Civil Liberties Union on behalf of Michael Kissick, challenging the DOA’s new Capitol Access Policy. The preliminary injunction ruled that the DOA could not enforce the permitting policy on groups of less than 20.
In his decision Judge Conley stated: “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 individuals who are willing to follow reasonable conduct standards and co-exist harmoniously with tour groups, permitted events and other legitimate state activities.” He added “the invalidity of these provisions raises the question of whether the rest of the Access Policy can be salvaged by severing or giving a limiting construction to the invalid parts.”
Judge Conley notes that his decision “is not, however, a final judgment of facial unconstitutionality,” and that his choice to enjoin enforcement of the permit policy as it applies to groups of less than 20 is a “preliminary number.” The case is set to go to trial in January 2014.
The Milwaukee Journal Sentinel wrote 17 news articles about the crackdown between July 9 and August 20. The articles gloss over the fact that the court did not order the police to arrest people if they assemble without a permit in groups of 20 or more, and the fact that the Capitol Police have been free to enforce the permitting policy since the new Capitol Access Policy went into effect in November 2011, but only chose to start doing so in the past year.
In a July 17 Journal Sentinel article the paper did quote ACLU lawyer Larry Dupuis: “the judge didn’t order protestors to do or not to do anything. The Capitol Police may require permits, may declare large assemblies unlawful and may ticket for failure to disperse. But the preliminary injunction doesn’t require them to do any of those things.” Despite quoting Dupuis once, the subsequent articles have misrepresented Judge Conley’s ruling.
In the same July 17 article the Journal Sentinel quotes DOA Secretary Mike Huebsch as saying, “we will comply and enforce the court order,” despite the order saying nothing about arresting and citing those who violate the permit policy. In five subsequent articles the Journal Sentinel took to placing this sentence in their articles; “U.S. District Judge William Conley in Madison temporarily blocked two parts of the Walker administration’s restrictions on demonstrations as unconstitutional, giving a partial victory to the protesters. But Conley left much of the remaining rules in place.” This summary of the preliminary injunctions is misleading. It is not clear that Judge Conley left the rest of the permit policy in place for the time being and this his choice of 20+ as a threshold for enforcement is a “preliminary number.”
On August 5 the Journal Sentinel’s standard language regarding the preliminary injunction was changed, and in the next eight articles the Journal Sentinel includes slight variations of the following sentence to explain the preliminary injunction; “new rules by the [DOA] were partially upheld by a judge allowing police to enforce permitting rules for groups of 20 or more.”
This characterization of the preliminary injunction is misleading on three fronts:
- One – they do not acknowledge that the case is still open and the legality of the permitting process is still under question.
- Two – the sentence suggests that the judge somehow condoned the DOA’s decision to enforce the permitting policy by declaring an unlawful assembly and arresting participants and observers.
- And three – the DOA and Capitol Police were free to enforce their permitting policy before the judge’s ruling, they made a choice to start enforcing the policy by declaring an unlawful assembly and the court did not mandate arresting and citing participants.
The Wisconsin State Journal (State Journal) coverage of the preliminary injunction in 13 news articles published between July 17 and August 20 is more accurate than the Journal Sentinel, generally clearly stating that Judge Conley’s ruling simply left in place the existing permitting policy for groups of 20+. But the State Journal editorial board got it wrong.
An editorial published on July 29 states that Judge Conley “issued a temporary order that required a permit for any group of 20 that wishes to gather in the Capitol.” This statement by the State Journal editorial board is misleading if not false. Judge Conley simply left in place the existing permitting policy for groups of 20 or more, which the DOA and the Capitol Police have always had a right to enforce.
“Free” Permit Comes Along with Significant Legal and Financial Responsibility
In the 17 articles the Journal Sentinel published between July 9 and August 20, not one explained the financial and legal responsibility that comes along with applying for a permit, a concern many participants have cited as one of the reasons they choose not to get a permit. In fact the Journal Sentinel has quoted the DOA’s spokesperson Stephanie Marquis saying “the permit is free,” but failed to point out the conflicting language of the Wisconsin State Facilities Access Policy and the actual language on the permit application.
The Access Policy clearly states that “individuals and organizations” are responsible for damages, may be held liable for law enforcement expenses, and “shall indemnify and hold harmless” the State of Wisconsin and its employees “against any and all suits, damages, claims or other liabilities due to personal injury or death.” The Access Policy also says it is “strongly recommended that sponsors of Capitol event… obtain liability insurance” because by getting a permit the individual or organization is “responsible for all suits, damages, claims or liabilities due to personal injury or damage to or loss of property.”
The Journal Sentinel made a slight nod to the liability issues by saying in one article “because they’re not an organized group no one can assume responsibility for any damages to the building, as a permit would require,” but that statement does not represent the significant liability any individual would have to assume in order to get a permit. By signing the permit an individual or organization agrees “to pay any charges assessed… as outlined in the Wisconsin State Facilities Event and Exhibit Policy.”
The State Journal has done an even sloppier job reporting on the liability issue. In 13 news articles the State Journal has published on Solidarity Sing Along arrests between July 17 and August 20 they have twice quoted DOA spokesperson Stephanie Marquis regarding the “free” permit, and have quoted someone who participated in David Blaska’s permitted pro-Walker sing along saying “it doesn’t take anything to get a permit.”
In addition to the news coverage, their editorial board admonished the Solidarity Sing Along “who refuse to sign up for the free permit.” They also published a cartoon editorial in which the artist claims (presumably the irony is unintended) “It’s not hard for the singers to obtain a free permit to hold their daily gatherings. If it were difficult or cost-prohibitive they would have a point.” Many Solidarity Sing Along participants might agree with his last point. The State Journal has made two vague remarks that acknowledge the permit comes along with responsibilities, but have never provided specifics of the extent of the liability, and have never challenged the assertion that the permit is “free.”
Ryan Wherley, a frequent participant in the Solidarity Sing Along, summed up some of the participants’ concerns regarding the permitting process. “Oh, and that “free” permit? It comes with a “hold harmless” clause alleviating the state of responsibility for any damages or personal injury that might occur during a permitted event, even if caused by their own palace guard. Don’t forget about the arbitrary charges that can be applied after the fact, including police presence to the tune of $50 per cop per hour. But after them claiming that the 2011 protests caused $7.5 million in damages to the Capitol, when the real total was approximately $200,000 (mostly for general upkeep of grounds), why WOULDN’T you trust [DOA Secretary Michael] Huebsch and the DoA??”
The DOA Capitol Access Policy States Observers Are Subject to Arrest, Despite What the DOA Spokesperson Might Say
As the arrests at the Solidarity Sing Along continued, the Capitol Police began warning people on the 1st and 2nd floors overlooking the ground floor rotunda that they were subject to arrest if they did not disperse, even when the individuals were not singing or clapping or participating in any way. When news started to spread that simply observing the unlawful assembly was cause for arrest and citation, outrage spread over the Capitol Police assertion that “spectators are considered participants,” many citizen journalists reported on these warnings, with one video of the warning getting over 60,000 views on youtube.
However, the Journal Sentinel made no mention of the warnings. The State Journal mentioned arrests on the 1st floor, but did not clarify that individuals were being warned for observing. But when State Representative Sondy Pope was warned that she could be subject to arrest for observing from a 2nd floor balcony, the newspapers took note, and started to contact the DOA for answers.
On August 7 DOA spokesperson Stephanie Marquis sent an email to the State Journal stating, “observers will not receive citations.” This prompted the State Journal to run an article the next day with the title “State officials say they won’t issue citations to Solidarity Singalong observers.” The article says that, “DOA officials declined to discuss why police were warning observers,” and goes on to bury the answer, which appears to be written clearly in the Capitol Access Policy. The policy states that, “any participant or spectator within the 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 [a civil forfeiture of not more than $500]” (emphasis added). Despite quoting this section of the administrative code in their article, the State Journal does not point out that it directly contradicts the DOA’s statement, and did not present the language in contrast to the DOA’s statement, but rather at the end of the article with no context.
When the Capitol Police started warning people that they could be arrested for simply observing, David Dexheimer, a local Madison police officer who frequents the Capitol and sometimes participates in the Sing Along, decided to fill out a permit requesting permission for himself, his wife and his daughter to simply observe the rotunda from the first floor while holding signs. He hoped that would allow him to avoid arrest and citation.
Dexheimer’s permit application clearly stated that, “this application does not require, nor it is requesting exclusive use of the Capitol Rotunda and should not be construed to either include nor impinge on the ability of others to visit and gather in areas not requested by the permit.” The permit specifically requested only a 10 ft by 4 ft area on the 1st floor, yet the DOA and Capitol Police chose not to declare an unlawful assembly that day despite over 20 people participating in the Solidarity Sing Along which was otherwise unpermitted as usual.
It is unclear to what extent Dexheimer’s permit did or did not cover the other individuals who came to the Capitol during that time, but the decision to allow others to assemble, seemingly under the protections of his permit, raises questions as to whether or not he would be considered liable for the actions of others who attended the Capitol that day.
Wisconsin’s Traditional Media Falls Back on DOA Press Releases
In the approximately 30 articles published up to August 20th by Wisconsin’s two state-wide newspapers about the crackdown, there have been many examples of deference to the DOA’s statements, regardless of their accuracy or relevance. Highlighted above are examples of repeating the “free permit” talking point, the decision (despite the language of the law under question) to not warn, arrest, or cite observers, and the idea that Judge Conley ruled the Access Policy constitutional (which is still under litigation), but there are more specific examples as well.
The most well reported incident of the DOA’s misdirection was the case of the mysterious wedding permit. On Friday July 26 the Capitol Police put out a sign saying that there was a permit for a wedding in the rotunda at noon. That day some Solidarity Sing Along participants decided to remain inside the Capitol in response to the previous two days of mass arrests, while most of the participants sang outside as is the tradition of the Solidarity Sing Along on Fridays. Those inside repeatedly asked where the wedding party was, and wandered the halls searching for the ceremony. They received no answer and when the wedding party was nowhere to be found many of the individuals remained inside, some making speeches, some singing, and some observing.
That day the Journal Sentinel reported that “a small wedding party with a permit for the rotunda at the same time as the Solidarity Singalong had to make a snap decision about where to hold the ceremony,” and also wrote that “[DOA spokesperson] Marquis said the couple decided to hold the ceremony outside despite some rain showers over the lunch hour.” The State Journal also repeated the line that the couple “made a decision to get married outside in the rain.”
As it turns out, the court commissioner who officiated the wedding later told the State Journal that the decision to conduct the ceremony had nothing to do with the Solidarity Sing Along. He stated that it was not raining outside during the ceremony, and that “for the most part, I’ve never had a problem working with the singers.” The State Journal and Journal Sentinel both ran articles clarifying the situation, but the original articles with the misleading statements from the DOA are still readily available without a correction.
The Journal Sentinel made this unfounded claim on July 27th: “In addition, some protestors with little income or assets won’t necessarily be dissuaded by fines that they can’t pay in any case.” They did not quote anyone to that effect or provide any other basis for their claim.
The Journal Sentinel also ran an article on August 14 titled “State: no arrests in rotunda protests, but thousands spent for chalk removal.” The article explains that on Wednesday August 14, a man from St. Paul Minnesota had taken out a permit on behalf of the “Solidarity Singers.” The fact that a permit was taken out, as was the case previously, prompted the Capitol Police to refrain from declaring an unlawful assembly.
Regular attendees of the Solidarity Sing Along did not know who had filled out the permit, and did not feel like it had been done on their behalf, so many participants moved outside to sing as is their custom when another groups has a permit for the Capitol rotunda between noon and 1pm on a weekday. Other frequent Solidarity Sing Along participants felt the permit was a trick to get the participants to move outside, and when their repeated calls for the permit holder to reveal themselves and claim the space was met with no response, they chose to stay inside in defiance. The Journal Sentinel article briefly described the situation, but dedicated most of their article to a diversion tactic from the DOA.
The Journal Sentinel had made an open records request “seeking the cost of any potential police overtime associated with the arrests.” The DOA had not yet responded to the request, but proffered that since March 2011 they have spent $12,800 removing “graffiti and chalk” from the sidewalks. The Journal Sentinel readily repeated the information, making it a focus of their article. An interesting fact that they didn’t mention was that one man, Bart Munger, has received over 15 citations totaling over $10,000, many delivered in the mail, for chalking on the Capitol square. They also fail to mention that chalk tends to wash off in the rain.
The Role of the Media in Wisconsin: A Mouthpiece or a Check and Balance for Power?
In addition to the factual inaccuracies and the oversights of the Journal Sentinel and State Journal reporting, Wisconsin’s two state-wide newspapers have shown a general ineptitude or unwillingness to adequately express the spirit of the Solidarity Sing Along – both the sense of humor of the participants, and the absurdity of the arrests. Quoting press releases is certainly common practice for a statehouse reporter, but it does a poor job of representing the real story.
Emily Verburg, a woman in her early 20’s, attended the Solidarity Sing Along on Thursday August 15, when she and a friend were told that they were subject to arrest if they did not disperse. She laughed at the absurdity of the request, but chose to stop signing and left the center of the rotunda. She had occasionally attended the Sing Along in the past, but said she hadn’t been able to attend much in the past year. When asked what she thought about the media coverage of the recent arrests she paused. “I have been impressed with the fact that it has gotten any coverage… but as far as the ludicrous [nature] of the entire event, I feel likes it’s being portrayed as kind of an even-keeled issue, like each side has legitimate points, and to me that just doesn’t resonate very well.”
The scene at the Solidarity Sing Along in the past few weeks has certainly been ludicrous at times, surreal at others. Watching Capitol Police officers circle the outskirts of the rotunda full of peaceful singers, approaching seemingly random individuals, and handcuffing them if they refuse to disperse is certainly not something people are used to seeing, as evidenced by the hundreds of people who have come to the Sing Along in response to the arrests. Among those arrested in the past 5 weeks are a 16-year-old boy, a 14-year-old girl, men and women in their 80’s, veterans, firefighters, reporters, Raging Grannies, elected officials, parents with their children, and dozens of others.
It is the less tangible, less concrete things that Wisconsin’s newspapers have failed to portray. They report every day on the number of arrests, how many citations have been issued, the most recent tidbit of news that they discover, or the most recent talking points from the DOA. What they are failing to do is tell the story, the story that has inspired many hundreds of people to show up to the Capitol risking arrest and citation since the crackdown started.
Before the arrests, as many have pointed out, the Solidarity Sing Along was often small, many days with fewer than 20 people participating. Ironically it is the Capitol Police themselves who seem to have the most control over how many people show up on any day. The crowds swell after particularly poignant or sympathetic images and videos of the arrests have been circulated via social media.
The purpose of the media is not to be a mouthpiece for the government, it is their job to inform and serve the public. It is their role as a check and balance on power that has earned the media specific constitutional protections, and they would do good to remember the public to whom they owe those rights.
“The media is absolutely essential to the functioning of a democracy. It’s not our job to cozy up to power. We’re supposed to be the check and balance on government.”