Why the Permit Policies in the U.S. Capitol Are Irrelevant

Confusion continues over the new Department of Administration rules announced December 1 which require advance permits for many demonstrations held within the Wisconsin State Capitol. Among the more controversial aspects of the policy are its applicability to small groups of protestors and the discretion granted to the State Capitol police to require permit seekers to pay security costs in advance. I have already written about the manner in which this policy goes too far, and how it impermissibly infringes upon the First Amendment rights of protestors.

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.

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Who Owns a Sporting Event in Wisconsin?

The ownership rights to live athletic events has been the subject of much legal controversy since the rise of commercialized spectator sports a century and a half ago. In 1885, the Detroit Wolverines baseball club, then a member of the National League, sued John Deppert ,who owned a barn adjacent to Recreation Field, where the team played. Deppert was charging baseball fans a fee to climb on to the roof of his barn, from which the Wolverine games could be watched. A half-century later, the issue shifted to radio broadcasting, and the question became whether or not a radio station could broadcast live accounts of an ongoing game without the permission of the home team.

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.

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Judge Crabb’s Ambitious Establishment Clause

I am not going to go ballistic over Judge Barbara Crabb’s decision that the National Day of Prayer – an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic – violates the Establishment Clause.

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.

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