Wisconsin: Why the Capitol Settlement is a Win (ACLU)

After we announced our settlement yesterday in the Capitol free speech case, the Department of Administration claimed that the ACLU of Wisconsin had agreed that the state’s “permit process is constitutional.” We’re not surprised the state wants to fudge facts and claim the settlement as a victory. But it’s important to cut through the spin and get a few things straight:

We’ve always held that the state’s permitting scheme is unconstitutional — and Judge William Conley, the federal judge who presided over the case, clearly found it unconstitutional. Nothing about the settlement changes that. At the most abstract level of generalization, the U.S. Supreme Court has held that narrowly tailored, content-neutral permit schemes can be constitutional. Judge Conley recognized that, as do we.

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So, when a certain number of people had gathered inside the Capitol, the state could have required them to submit a full application for a permit, then taken up to 30 days to decide whether to grant the permit, and then arrested people who didn't have one.

This settlement changes that. It’s a victory for free speech because now no one has to receive permission from the government to exercise their First Amendment rights inside the Capitol. Instead of being forced to apply for a permit, now groups of 12 or more can give notice instead. Giving notice is much more informal than applying for a permit, can be done in a variety of ways, and doesn’t even require providing your name. And, unlike permits, the state has essentially no grounds (other than illegal conduct or someone else obtaining a permit) for refusing to allow people who give notice to use the Capitol. The Capitol Police don't get to decide whether to "grant" the notice. The settlement means they must put it on the schedule.