Constitutional Law – Freedom of assembly

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Wisconsin Court of Appeals

Civil

Constitutional Law – Freedom of assembly

WIS. ADMIN. CODE § Adm 2.14(2)(vm)5., which required a permit for events at the state capitol, was not a valid time, place, and manner regulation of speech because it was not narrowly tailored to further the State’s significant government interests.

“As we have explained, the Kissick opinion and order enjoined the Department from enforcing the permit requirement for ‘events in the Capitol that are anticipated to attract 20 or fewer persons.’ In response to this order, and in the words of the State in its appellate briefing, ‘the Department stated that it would comply and enforce the permit requirement for groups of more than 20 people.’ ‘Thereafter,’ in the State’s words, ‘the Department and police required and enforced permits only at events with more than 20 people.’ As the State’s own phrasing suggests, there is nothing in the record before us suggesting that the Department did anything other than comply with the Kissick order that enjoined the Department from requiring permits for events anticipated to attract 20 or fewer people. Indeed, if the Kissick order had been lifted, there is no reason, based on the record before us, to believe that the Department would have continued to adhere to the 21-person numerical enforcement floor. Rather, the briefing on appeal suggests that the State continues to believe that a lower floor would suffice. See supra note 10; see also City of Lakewood, 486 U.S. at 770) (a court cannot ‘presume[ ] the [government] will act in good faith and adhere to standards absent from the ordinance’s face’); United States v. Stevens, 559 U.S. 460, 480 (2010) (‘[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.’).”

Affirmed.

Recommended for publication in the official reports.

2014AP659 State v. Crute

Dist. IV, Dane County, Markson, J., Kloppenburg, J.

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