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Administrative rule requiring permits for events in state buildings regardless of group size violates First Amendment

State v. Michael W. Crute, 2015 WI App 15; case activity

An administrative rule (§ Adm 2.14(2)(vm)(intro.) and 5.) requires a permit for any rally, meeting, or similar event held in a state building, and persons participating in an unpermitted event can be ticketed for “unlawful assembly.” But the rule did not contain a minimum group size, so it covered unpermitted events undertaken by as few as one person. The court of appeals holds the rule is not a valid time, place, and manner regulation under the First Amendment because it was not narrowly tailored to serve a substantial governmental interest. It also rejects the state’s attempt to save the rule by construing it to apply only to groups over 20 persons.

A permit scheme controlling the time, place, and manner of speech must: (1) be content-neutral; (2) be “narrowly tailored to serve a significant governmental interest”; and (3) “leave open ample alternatives for communication.” Forsyth County v. The Nationalist Movement, 505 U.S. 123, 130 (1992); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The parties agree the administrative rule meets the first and third prongs, so the fight is about whether the rule is narrowly tailored. (¶¶27-29).

The state didn’t dispute that the rule didn’t specify a minimum group size and didn’t defend the rule as it applied to very small groups, thus implicitly conceding that requiring a permit for very small groups wouldn’t pass muster because they don’t implicate the state’s interest in orderly regulation of the space. (¶¶8, 28-29, 31, 33). Thus, the parties agree the rule must have a numerical floor that exempts small groups from the permit requirement, but they disagree as to whether there exists a basis for a court to read a numerical floor into the rule.

The state claimed the rule could be saved by reading it to include a specific numerical enforcement floor of 21 persons, below which the State could not require a permit. The state based this reading on the definition of the word “assembly” and on Kissick v. Huebsch, 956 F.Supp.2d 981 (W.D. Wis. 2013), a federal district court decision involving litigation over the same administrative rule. The court is not persuaded.

As to the word “assembly” providing a “textual anchor for a narrowing construction” (¶35), the state relies solely on a dictionary definition of the term (“coming together of a number of persons”). “Nothing in that definition specifies a ‘number’ and, thus, nothing in the definition supports a court’s inserting a specific number into the rule.” (¶36).

As to Kissick, that decision involved only a preliminary injunction against enforcing the rule while a challenge was pending, and did not address—let alone hold—that a 20-person threshold would make the rule “narrowly tailored” enough to be constitutional. (¶¶37-44). While the state’s response to Kissick was to not require permits for any group of fewer than 21 persons, that does not amount to a narrowing “interpretation and implementation” of the rule that, under Forsyth County and Ward, must be considered as part of the time, place, and manner analysis. Under those cases, “the references to an interpretation, implementation, and narrowing construction were references to the governmental entity at issue having previously limited the reach of a broad law, as evidenced by the entity having, independent of a directive from a court, undertaken a past practice in implementing the law. … There is no suggestion in any of the cases brought to our attention, or which we have detected through our own effort, that compliance with a court order constitutes interpreting and implementing in this context.” (¶47). Further, nothing shows the state limited its enforcement for any reason other than to comply with the injunction. (¶48).

Crute was ticketed in July 2013 for participating in a “Solidarity Sing-Along” in the Capitol rotunda. (¶2). The rule governing his conduct was adopted as an emergency rule in April 2013. (¶4). After he was cited, and after the parties in Kissick reached a settlement, ch. Adm 2 was amended to allow groups of 12 or fewer persons to use the ground floor or first floor of the Capitol rotunda without applying for a permit and without providing advance notice. Wis. Admin. Code §§ Adm 2.04(2z) and 2.14(2)(vm) (effective August 1, 2014).

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