Did Wisconsin Police Violate the First Amendment through Selective Enforcement of Limits on Protests?

Ordinarily, protesters who tried to occupy the Wisconsin Capitol Building would be swiftly arrested and removed. But this weekend, police in Madison, Wisconsin, not only allowed pro-union protesters to stay and sleep in the state Capitol Building, they joined them.

Wisconsin union supporters applauded this lawlessness. One exulted, “Police have just announced to the crowds inside the occupied State Capitol of Wisconsin: ‘We have been ordered by the legislature to kick you all out at 4:00 today. But we know what’s right from wrong. We will not be kicking anyone out, in fact, we will be sleeping here with you!’ Unreal.”  (Days later, the police finally told the protesters to leave the Capitol Building, but “didn’t evict” them at that time, and protesters were still camped out in the Capitol Building on the morning of March 1, with their garbage and trash littering the building and the surrounding areas. By the time the police finally took grudging action to limit the protesters’ access to the building, it was during business hours — when the building has traditionally been open to the public. So a union lawyer then promptly got a temporary restraining order that, with little explanation, forced Wisconsin officials to reopen the building to the public during business hours, thus making it harder for them to clean up the building and prevent future occupations.)

This foot-dragging by police and their selective enforcement of the law was a violation of federal court rulings, like Dwares v. City of New York (1992), that require police to enforce the law in a viewpoint neutral manner. In Dwares, police were sued for refusing to arrest people who attacked flag-burners because they disagreed with the flag-burners’ message — even though police ordinarily enforce laws against assault.

A federal appeals court ruled that doing that violates the First Amendment and the Equal Protection Clause of the Constitution. It recognized that under the Supreme Court’s DeShaney decision, the police have no constitutional obligation to enforce the law at all. But once they do enforce it, they have to enforce it in an ideologically even-handed fashion. (As the Supreme Court made clear in its Good News Club and Cornelius decisions, viewpoint discrimination is unconstitutional even in non-public forums or limited public forums.)

Union protesters cannot be exempted from state laws based on their viewpoint or message. In Police Department of Chicago v. Mosley (1972), the Supreme Court struck down a city ordinance that prohibited picketing near schools, but exempted labor picketing, because it impermissibly discriminated in favor of unions.

Wisconsin’s police are themselves unionized, and some of them seem to think that violating the Constitution is a price worth paying to help block legislation limiting union privileges. Wisconsin’s new governor and a majority of its legislature want to limit the scope of collective bargaining in government agencies, and make government employees pay more towards their pensions and health care costs.

The police’s willingness to flout the law is shared by many striking government employees in Wisconsin, who earlier engaged in widespread fraud by calling in “sick” to shut down Wisconsin schools. Many of them obtained notes from sympathetic doctors fraudulently claiming that they were sick when they were not sick at all. In broad daylight, the doctors handed out hundreds of fake sick notes at Wisconsin union protests (here’s actual video).

Wisconsin’s government-employee unions depict the governor’s proposals as Armageddon. But in reality, his proposals are rather modest.

They would still leave state-employee unions with some ability to collectively bargain over wages (but not pensions) — which is more than federal employees have. Federal employees are not allowed to bargain collectively over wages, health care, or pensions, and cannot be required to join a union or pay union dues. Even under the governor’s proposals, state employees would still have more collective bargaining rights than state employees do in many other states, such as Virginia, Georgia, Texas, and the Carolinas, where collective bargaining by government employees is banned.

And they would still be compensated better than private-sector employees in Wisconsin. The governor’s budget plan would merely “require many state workers to contribute 5.8 percent of their salary toward their pensions and pay 12.6 percent of their insurance premiums — still much less than the average Wisconsinite pays for insurance through work.”

Image credit: Madison Guy’s flickr photostream.