MADISON (CN) – Wisconsin’s attempt to stifle a daily sing-along by protesters at the state rotunda trampled the First Amendment, an appeals court ruled Thursday.
The singing has gone on every day, between noon and 1 p.m., since March 11, 2011, the heyday of protests against Gov. Scott Walker’s union-busting legislation, according to websites for the Solidarity Sing Along.
In 2013, police for the Wisconsin State Capitol began ticketing the protesters for participating in an unpermitted event.
The First Amendment Protection Fund’s website notes that 186 people have received citations or been charged for their participation in the protest between July 24 and Sept. 6, 2013.
Michael Crute, the sing-along participant’s whose case the Court of Appeals decided Thursday, was one of those cited on July 24, according to the ruling.
Crute’s attorney, Jeff Scott Olson, noted that the decision will render hundreds of pending trials moot.
“By and large, all of those cases were put on hold, either in the circuit court or the court of appeals, pending the decision in the Crute case,” Olson said in an interview.
“Had the decision in the Crute case gone another way, all of those people would be looking at trials,” Olson added.
The appellate panel’s ruling affirms the dismissal of Crute’s citation last year by the Dane County Circuit Court.
That court had found that the emergency rule requiring a permit “violates the First Amendment because it applies, on its face, to very small groups [and] is therefore not narrowly tailored to address the legitimate interests of the government in requiring a permit.”
Wisconsin failed to show on appeal that the lower court improperly gave it the burden to defend its rule’s constitutionality.
Critical to the court’s finding is that Wisconsin never contested the First Amendment implications.
“Indeed, at one point counsel for the State agreed with the circuit court that the burden was on the State,” Judge JoAnne Kloppenburg wrote for the three-judge panel, citing in the transcript where the state answered “yes” to the burden-of-proof question.
Wisconsin fared no better in relying on precedent from the 2013 case Kissick v. Heubsch.
The federal judge in that case temporarily enjoined Wisconsin from enforcing its permit rule on groups of fewer than 21 people, but Kloppenburg said that the “key” to Kissick “is understanding that the District Court did not hold that the rule could be constitutionally enforced as to events with more than 20 persons.” (Emphasis in original.)
“Indeed the opinion did not affirmatively approve of enforcement at all,” Kloppenburg added. “Rather, the opinion concluded that the plaintiff was entitled to some temporary protection from enforcement while the merits of the suit were litigated.”
The parties in Kissick settled in 2013 with Wisconsin’s Department of Administration agreeing to do away with the permitting rule in favor of an optional notice system, according to a report by the American Civil Liberties Union.
Through this system, demonstrators can be denied access only if another group has notified the department it plans to use the entire space, the ACLU said.
The First Amendment Protection Fund had noted that two individuals facing charges related to their sing-along participation were working journalists. A Madison city alderman was also allegedly among cited.
Olson said many of the charges were dismissed, while others were paused in anticipation of a final ruling in Crute’s case.
A spokeswoman for Attorney General Brad Schimel said the office is weighing its next step, which could include a petition to the state Supreme Court.
Olson said that, coupled with Kissick, today’s decision likely put the issue to bed.
“This is about a closed chapter in enforcement at the capital,” Olson said.
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