One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.

At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban?  The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is.

The expression of political speech receives the greatest protection under the First Amendment when it takes place in a public forum:

Speech restrictions in traditional public forums are generally subject to the most exacting forms of judicial scrutiny. A government entity may never restrict all forms of communicative activity in these spaces. Public forum doctrine also requires that all restrictions based upon the content of the speech must be subject to strict scrutiny; that is, they must further a compelling state interest in a narrowly tailored way. Courts strike down restrictions on speech in traditional public forums when the restrictions do not satisfy strict scrutiny. In traditional public forums a government may, however, impose content-neutral time, place, and manner restrictions as long as those restrictions are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Michael J. Friedman, Dazed and Confused: Explaining Judicial Determinations of Traditional Public Forum Status, 82 TUL. L. REV. 929, 933 (2008).

In contrast, a far lower form of judicial scrutiny applies to evaluate speech restrictions in nonpublic forums. In a nonpublic forum, speech restrictions need only be reasonable and viewpoint-neutral. See id. at 935.

In Gaylor v. Thompson, 939 F. Supp. 1363 (W.D. Wis. 1996), District Judge Barbara Crabb held that the Wisconsin State Capitol is a public forum. This ruling is unsurprising. The interior of the Wisconsin State Capitol building has traditionally been a site for public expression and protest. As a result, any restrictions on speech within the Wisconsin State Capitol building must meet the stricter standard described above.  As stated by Judge Crabb:

In this instance, the state of Wisconsin has opened the capitol rotunda to a variety of displays and exhibits and must be considered a public forum for the purpose of First Amendment analysis. However, that decision does not mean that the state is prohibited from imposing certain regulations on the time, place and manner of the displays. The state can implement such restrictions provided they “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”

However, in the case of Bynum v. U.S. Capitol Police Bd., 93 F. Supp.2d 50 (D.D.C. 2000) the court ruled that the United States Capitol is not a public forum.  The court noted that as early as 1946 the U.S. Congress had passed a law banning protests and demonstrations inside of the U.S. Capitol. That law, coupled with a lack of a tradition of public access to the U.S. Capitol building for protests, and the exclusive control that Congress exercises over the District of Columbia, led the court to conclude that the U.S. Capitol is not a public forum:

Which brings the Court to what may seem a somewhat surprising conclusion that the inside of the United States Capitol is a nonpublic forum for First Amendment forum analysis purposes. While in many respects the Capitol must be viewed as sui generis, it appears that its designation as a nonpublic forum most closely conforms with Congress’ intent and the forum-based approach adopted by the Supreme Court. As a nonpublic forum, the government may restrict First Amendment activity in the Capitol so long as the restrictions are “viewpoint neutral” and “reasonable in light of the purpose served by the forum.” [citations omitted]

Because it found the U.S. Capitol building to be a non-public forum, the court evaluated restrictions on speech within the U.S. Capitol building under the more forgiving standard of reasonableness.

However, it is important to note that, even under this lower constitutional standard, the court still found that the only reasonable justification for government rules restricting speech would be the disruptive effect of the protestor’s conduct. Therefore, even under the nonpublic forum standard, the United States Capitol Police were still prohibited from banning expressive conduct that was non-disruptive.

In the case of plaintiff Bynum, he was a pastor who led a small group in prayer and meditation, in a conversational tone, within Statutory Hall and other portions of the Capitol Building. The Bynum court held:

The Court, however, cannot conclude that the regulation is reasonable in light of the purposes it could legitimately serve. While the regulation is justified by the need expressed in the statute to prevent disruptive conduct in the Capitol, it sweeps too broadly by inviting the Capitol Police to restrict behavior that is in no way disruptive, such as “speechmaking . . . or other expressive conduct. . . .” Because the regulation’s proscriptions are not limited to the legitimate purposes set forth in the statute, it is an unreasonable and therefore an unconstitutional restriction on speech. [citation omitted]

The Bynum court issued an injunction ordering the U.S. Capitol Police not to enforce restrictions on First Amendment conduct within the Capitol Building unless they are addressed towards disruptive or obstructive conduct.

Therefore, even under the lesser standards applicable in a nonpublic forum, the First Amendment prevents the U.S. Capitol Police from completely banning small, non-disruptive protests within the U.S. Capitol building. Any statement in the current written policy of the U.S. Capitol Police that purports to completely ban protests inside of the U.S. Capitol cannot be enforced. For example, in one highly publicized recent case, the U.S. Capitol Police apologized to an individual for mistakenly removing her from the Capitol Gallery for wearing a T-shirt with a political slogan.

[Note: Unlike the interior of the U.S. Capitol building, the grounds surrounding the building are a public forum. See Lederman v. United States, 291 F.3d 36 ( D.C. Cir. 2002).]

The bottom line is that it makes a difference for the constitutional analysis of the new DOA policy that the Wisconsin State Capitol is a public forum.

Might the legislators in Madison pass a bill declaring that the Wisconsin State Capitol is no longer a public forum? Not really, because once a location has become a public forum by tradition the government may not arbitrarily remove that status. In any event, such a law would violate the Wisconsin State Constitution, which provides that the doors of the State Capitol shall remain open while the legislature is in session. There is, of course, no analogue for this provision in the federal Constitution. Even though the Wisconsin Supreme Court has recently treated the “open doors” provision of the Wisconsin Constitution in a rather cavalier manner, it is difficult to conceive how any legislative attempt to completely foreclose protests within the State Capitol building could survive a state constitutional challenge.

It should be obvious by now that the permit policies currently in place at the United States Capitol are completely irrelevant to the First Amendment analysis that applies to a public forum like the Wisconsin State Capitol. As I previously wrote, the new DOA policy is overbroad because it allows fees to be imposed on the indigent as a condition of protesting, it vests unbounded discretion in the Capitol police to determine whether to impose advance fees for security costs, and it requires permits from small groups of four or more protesters. These restrictions fail to meet the strict standards used to evaluate limitations on speech in a public forum. Even in a nonpublic forum like the U.S. Capitol, the federal courts have enjoined attempts to prevent small groups from engaging in non-disruptive protests without a permit.

By looking to the policies in place at the U.S. Capitol, the defenders of the DOA policy have fallen into a logical trap. The advocate thinks to himself, “If only I can argue Proposition X, then I will win the argument.” So the advocate searches high and low for evidence in support of Proposition X. Alas, arguing backwards from a conclusion never works.

Here, Proposition X is the assertion that “Restrictions on speech in the United States Capitol reflect what may be constitutionally restricted in the Wisconsin State Capitol.” As the above discussion illustrates, this assertion rests upon a myriad of mistaken assumptions.

By drafting an overbroad policy with little or no guidance for how the security staff is supposed to implement it, the Department of Administration has placed the Wisconsin State Capitol Police in a very difficult position. Rather than continue in its attempts to justify restrictions that indefensibly infringe upon the First Amendment rights of citizens, the DOA should withdraw its new policy and start from scratch.

Today’s version of the question involves streaming images of games across the Internet. Earlier this month, Wisconsin federal district court judge William Conley weighed in on this question. The ruling came in a case involving the Wisconsin Interscholastic Athletic Association and The Appleton Post-Crescent newspaper and the Wisconsin Newspaper Association.

The WIAA sued The Post-Crescent after it streamed live coverage of four high school football playoff games in 2008.

The paper was apparently lawfully on the premises from which it “broadcast” the games, and it does not appear to have violated the terms of any license acquired from the WIAA.

In 2004, the WIAA had entered into a exclusive agreement with the When We Were Young Internet broadcasting firm that granted the company the exclusive right to stream live WIAA football games across the Internet. In the lawsuit, the WIAA took the position that it “owned” the rights to the games it produced, and thus could exclude the Post Crescent from broadcasting the games in competition with the official licensed broadcaster. The newspaper defended on the grounds that the exclusive agreement ran afoul of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.

In his opinion, Judge Conley ruled on behalf of the WIAA, essentially finding that the association “owned” the rights to its games and that its granting a monopoly streaming license to one entity did not offend First Amendment values. Although John Deppert won his case back in 1886, twentieth- and twenty-first-century decisions in the United States have tended, with a few exceptions, to favor the party that puts on the athletic events, although the precise legal rationale for so finding has varied from case to case.

The issue is also not exclusively an American one, and the resolution of these disputes in the courts of other nation’s has not been uniform. An Israeli court recently reached a decision contrary to the Wisconsin decision in a case involving the streaming of English Premier League soccer matches to Israel, via the Internet. The court ruled that the league and its teams had no ownership interest in the games themselves, and thus could not prevent the dissemination of the games in Israel.

There is no question that the party who controls the grounds on which the games are played can impose restrictions on those who enter as licensees. However, whether or not there should be an additional property right in the games themselves is a question on which there appears to be no greater consensus today than there was in Deppert’s time.

She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn’t always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb’s decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don’t think she handled them in the right way.

It would be hard for me to conclude otherwise. I have argued — here and here — that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.

In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things – teach sex education, values clarification or promote patriotism – that could cause religious dissidents to “feel like outsiders.” The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.

My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.

But – again - there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional – notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted – particularly if they are have a long pedigree.

The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb’s position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.

Cross posted at Shark and Shepherd

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that — observing that the restriction may have had the “quaint” intent of protecting judges from the indignity of dialing for dollars -  but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct, and restrictions on contributions have been far more likely to be sustained.  It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one’s partisan affiliation (or, as in White, one’s position on certain issues of public interest).  Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd.

In reviewing the questionnaire, I am glad that I myself am not an applicant — we are asking applicants to gather and present a large quantity of information about themselves in a short period of time.  I hope that well-qualified attorneys will not be deterred by this process.  There is, of course, a delicate balance to strike: on the one hand, we do not wish to deter applicants through an unduly onerous process; but, on the other hand, it is critical for the Commission to have adequate information to assess the competence and integrity of all of the candidates for such an important position of public trust.  I hope that we have struck the balance appropriately.

The prior decision seems distinguishable to me given the statute’s explicit reference to closing for a religious purpose. It’s hard, in light of that, not to see the statute as violating current Establishment Clause doctrines.

These cases tend to turn on some ascription (often fictional) of a religious or secular purpose to the state.  FFRF will have to show that the recognition of the Good Friday holiday has a religious purpose or amounts to an endorsement of Christianity. It may well lose because a court will conjure some secular justification for recognition of the holiday, e.g, that the day also known as Good Friday has become a traditional opening to the spring vacation.

My own view is that there is no sense to this. Spinning some secular justification for what is a religious holiday is unseemly, at best, and disrespectful of the religious tradition in question, at worst. The colleges are recognizing that this is a day with religious significance for most of its employees and is responding to their desire to have that day off.

My own view is that this ought not to raise Establishment Clause concerns. While it may raise an issue regarding accommodation of the religious holidays of other faith traditions, it does not advance or endorse religion in a way that ought to be constitutionally proscribed. A non-Christian suffers some burden because a state facility is closed on a day when the majority is observing a religious holiday, e.g.,  annoyance at the unavailability of certain services or confirmation of one’s minority status.

But this seems to me to be indistinguishable from the harm that religious adherents claim when the state, for secular reasons, acts in a way that is inconsistent with their beliefs and practices. It cannot be prevented in an even handed manner and we ought not to try.

Cross posted at Prawfsblawg and Shark and Shepherd.

Bopp is currently pursuing another free speech claim in Siefert v. Alexander, again in the Western District federal court (PDF). Here, Bopp represents a Milwaukee County judge who is challenging three sections of the Code that prohibit judges from belonging to or participating in political parties.

He is also counsel to Justice Michael Gableman in the disciplinary proceedings regarding Gableman’s campaign TV ad. In the reply to the Judicial Commission’s charges (PDF), he affirmatively asserts that SCR 60.06(3)(2), the “misrepresentations” clause, is an unconstitutional impingement on free speech.

In other words, Bopp’s litigation in Wisconsin has successfully taken down one judicial ethics code section, and four more are under challenge.

But Bopp is litigating outside Wisconsin as well, and a recent decision Bopp won in a federal court in Kansas may result in new litigation in Wisconsin. Yesterday, Bopp issued a release hailing Judge Julie A. Robinson’s decision in Yost v. Stout, which struck down the Kansas Judicial Code’s ban on the direct solicitation of campaign donations by judicial candidates. Wisconsin SCR 60.06(4) says that “A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.” Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional. Will a Wisconsin judge or candidate soon challenge it as such?

Steve’s counterpart in the Western District, Erik Peterson (who is also a Marquette alum), has not yet announced his plans.

District Judge Lynn Adelman of the Eastern District of Wisconsin, sitting by designation, entered a declaratory judgment “stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.”

As far as this goes, it seems to me to be consistent with recent decisions of the United States Supreme Court holding that even highly sectarian religious speech may not be excluded from a public forum if is otherwise within the forum’s purpose.

To exclude religious perspectives on content that the forum otherwise permits is impermissable viewpoint discrimination. In a forthcoming piece in the Mississippi Law Journal, I argue that there is no epistemological basis for distinguishing worship from other forms of discourse.

Judge Adelman may not agree. Although he held that the Regents had not shown that the specific activities of the RCF were outside the purpose of the forum, he suggested that the University could choose to exclude at least certain types of worship because “while worship may technically be within the forum’s broad purposes” the University might conclude that “its value to the forum is less than other forms of expression.” The UW, in his view, could “decline to fund activities involving nothing more than mechanical praise, provided that it does not simultaneously fund secular activities that lack a discussion component.”

This is where we part ways. I argue in the Mississippi piece that worship is unlikely to be devoid of assertions about temporal matters and claims about how our individual and communal lives ought to be lived. While a forum could be defined to require, as Judge Adelman would have it, “back and forth discussion of an idea,” it is unlikely to be. It seems implausible that segregated fees in the UW system are made available only to expressive activities in which all sides participate and each idea expressed is subject to critical examination.

If the point is that worship or sectarian speech is inherently less valuable or may be excluded from the “purpose” of a forum, my view is that, to exclude such speech on that basis, would be prohibited viewpoint discrimination. Judge Adelman disagrees, seeing it as content discrimination–something that the government is permitted to do in limited purpose public forums.

I don’t think so. If worship or sectarian speech provides a perspective on something on which secular perspectives are permitted, then excluding the latter is viewpoint discrimination. Judge Adelman’s suggestion that the University can decide that the latter approach is less valuable is precisely what the Constitution forbids.

The right result but some troubling dicta. It’ll be interesting to see what the next round brings and, given what seems to be ongoing tension between the UW and the RCF, there is likely to be another round.

Although the district has now changed its policy to require that all groups be charged, it has grandfathered those users for whom fees have already been waived, thus perpetuating any unconstitutional distinction between religious and nonreligious users.

There certainly may be other facts that I am not aware of, but it seems to me that the district is on awfully shaky ground. The United States Supreme Court, in one unanimous and two rather sharply divided opinions, has made clear that, if government establishes a limited purpose public forum (as Sun Prairie has done), it may not exclude religious uses that are otherwise within the scope of the forum. This, it has held, constitutes viewpoint discrimination and is unconstitutional.

The church’s use would seem to fall within the district’s very broad public use policy, and it is hard to see why waiving fees for all uses except religious ones would not constitute viewpoint discrimination.

Maybe the district can save itself by arguing that, while its discrimination against religious groups was impermissible, it can justify charging the church because it ran afoul of another district policy prohibiting the waiver of fees for groups who discriminate in membership on the basis of religious affiliation or other prohibited criteria. It might argue that the fees are justified if the use is not open to the entire community.

The problem with that approach is that the church, while it admits that it discriminates on the basis of religious affiliation in accepting members (as do virtually all churches and religious groups), alleges that the meetings in question are open to all children.

In the unlikely event that you see Sun Prairie’s prospects in this case on the prediction markets, go short.