Free Speech On Life Support In Wisconsin Capitol

Will Chief Erwin Pull the Plug?

By Nicole Desautels Schulte

Last February 14, Valentine’s Day, Jason Huberty, a geologist and First Amendment enthusiast, was arrested in the Wisconsin Senate Gallery and charged with Disorderly Conduct for holding a 2″ x 3″ piece of paper on which he had printed the words, “Have a Heart.” Video of the arrest proves his sign display was not disruptive. He was seated quietly, holding the slip of paper in front of him. Legislators on the floor of the Senate appeared unfazed by Huberty’s tiny valentine. According to Huberty, when a State Trooper informed him he was under arrest, he told him he “wouldn’t assist him but wouldn’t resist either.” He also told the Trooper he considered the arrest order to be illegal and unconstitutional and he “implored him to uphold his oath to the Wisconsin Constitution.” Huberty’s case was originally scheduled to go to trial this week, but was dismissed two weeks ago by Assistant District Attorney Chris Freeman.

According to a sign displayed at the Wisconsin Senate gallery entrance, “No signs may be displayed” inside the Senate galleries. The sign lists “rules” for visitors to the galleries:

  • You must be quiet at all times.
  • You must be seated at all times.
  • No leaning over and no putting anything over the balconies.
  • No firearms or weapons allowed.
  • No signs may be displayed. All signs must be left in the gallery vestibules.
  • No reading of books or newspapers is allowed.
  • No food or beverages are allowed.
  • No tobacco products may be used.
  • Cellphones and pagers must be turned off.
  • No laptops may be used.
  • No photography or audio recordings are allowed. This includes video and still photography.
  • Any violation of these rules may lead to your dismissal from the gallery or confiscation of items
  • These rules are subject to changes by the Committee on Senate Organization at any time and without prior notice.

The sign doesn’t make any mention of the possibility of arrest for non-compliance, only the threat of “dismissal” from the gallery or “confiscation of items.” A Senate Committee sets the rules, and they are “subject to changes… at any time and without prior notice.”

It is not known yet how new Capitol Police chief David Erwin will go about enforcing these gallery “rules” during the next legislative session. The question remains whether Capitol Police even have jurisdiction in the legislative galleries, as there is no mention of it in the Administrative Code, or the Senate or Assembly Rules.

As a consequence of the extreme separation of powers argument used by the Wisconsin Supreme Court in upholding the collective bargaining bill last year, the Supreme Court lacks jurisdiction over the Legislature’s rules. Therefore, the courts have no power to enforce rules of the Legislature, the rules under which most tickets have been issued in the past eighteen months. In addition, there is also the question of whether or not “rules” in the Capitol trump the Wisconsin Constitution, which, according to Article I, Section 3, allows for “Free Speech.”

According to numerous news reports in the past two weeks, Chief Erwin is intent on returning “normalcy” to the Capitol, and intends to step up a crackdown on dissent and refer all citations issued to the Department of Justice for Prosecution.

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“Sign Sign everywhere a sign
Blocking out the scenery breaking my mind
Do this, don’t do that, can’t you read the sign”

– Five Man Electrical Band

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