By Brendan Fischer on November 02, 2011

Eighteen people were arrested Tuesday, November 2 for using cameras in the Wisconsin Assembly gallery, including the editor of The Progressive magazine, Matt Rothschild.

Rothschild and others had gone to the capitol to protest a series of arrests in recent weeks of individuals who carried signs or took photos or video in defiance of an Assembly ban.

"We ought to have a right to take a picture," Rothschild said.

Guns, Yes. Cameras, No.

The protest was organized through a Facebook event called "Concealed Camera Day at the Capitol!" The event coincided with the implementation of Wisconsin's new concealed carry law, which allows residents to carry a concealed firearm -- including inside the Assembly gallery.

Stephen Colbert said Governor Walker was bringing "a new freedom to America's dairyland" with the concealed carry law, but said people would not see "images of gunfire in the statehouse" because of the camera ban. "Thank God. Cameras are dangerous," he said.

On the agenda in Tuesday's session was a bill to institute the Castle Doctrine, a "shoot first, ask questions later" bill that gives a person immunity from civil and criminal liability if they shoot another in self defense in their home, work, or vehicle. The American Legislative Exchange Council also has a model Castle Doctrine bill -- see the side-by-side here.

Event organizers were clear that the protests were not about the gun laws, but instead about protecting First Amendment rights.

But is it Legal?

The Open Meetings law includes this provision (§19.90):

Use of equipment in open session. Whenever a governmental body holds a meeting in open session, the body shall make a reasonable effort to accommodate any person desiring to record, film or photograph the meeting. This section does not permit recording, filming or photographing such a meeting in a manner that interferes with the conduct of the meeting or the rights of the participants.

The statute also contains this provision (§ 19.87(2)):

No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.

The legal issue here appears similar to the one that arose in the challenge to Governor Walker's collective bargaining law. In that case, Dane County District Attorney Ismael Ozanne alleged that the union-busting law should be struck down because it was passed in violation of another provision of the Open Meetings law requiring notice. In part, Ozanne's challenge failed because the legislature had passed a rule that trumped the Open Meetings law.

Likewise, here the Assembly had a rule banning cameras and video, but under the court's ruling in the Ozanne suit, that rule trumped the Open Meetings law permitting their use.

Despite this, both the Wisconsin and U.S. Constitutions have provisions protecting the right to free speech, free assembly, and a free press. "The gallery is a free speech area," says attorney Jim Mueller, who was ticketed in October for violating the Assembly rule. "Even if there are rules against signs, they're unconstitutional. It is our right to peaceably assemble and petition the government."

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.

Comments

I believe the new Assembly rules ban guns in the gallery, but allow them on the Assembly floor. So spectators will have no way to defend themselves from lawmakers who shoot at them. Kidding, but only sort of.

The Senate rules permit guns on the floor but not in the gallery; majority Republicans in the Assembly have proposed allowing concealed guns in the gallery, in meeting rooms, and on the floor, and are scheduled to vote Thursday.

Guns concealed in cameras have been a security concern for a long time. Has the time come for cameras disguised as guns? :-)

I'm suspicious already. Only someone anxious to commit crimes against the people would suggest that recording a public meeting is, or should be, illegal.

Governor Walker and other so-called lawmakers are claiming that they can overturn laws already on the books, just because they think it is a good idea. Electing petty dictators is not an American value and never will be.

Republicans are going against all their former values for a free people. Maybe they all just want to be the King?

Herewith, the 21st century version of "the pen is mightier than the sword" insofar as the camera, a bringer of truth and knowledge, is more frightening than a gun, which brings death. Cowards.