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The First Amendment to the

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Constitution protects our freedom of

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speech and the freedom to assembly,

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including to protest.

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But what are the limits to those

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rights? For that, we welcome

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UW-Madison Political Science

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Professor Emeritus Howard Schwaber.

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Thanks for your time today.

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Well, thank you for having me.

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So when protesters initially took

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over the intersection where a man

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was shot and killed by police, they

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were exercising their right to

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assemble.

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Were they still within their legal

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constitutional rights to be in that

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public space?

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No, or to put it differently, not

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necessarily.

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So let's back up a step.

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The way these kind of rules, the way

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rights in general, we talk about

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them is not in terms of you have

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the right to do x, but in terms can

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the government stop you from doing

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x. It's always a negative constraint

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on what the government may do.

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With the implication that anything

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that's not prohibited, you

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must be left free to undertake.

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So the rules are the government is

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perfectly free to make what are

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called content neutral time, place,

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and manner regulations.

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And these are things like, don't use

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loudspeakers at night.

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Don't camp overnight in a park.

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Those are actual old cases.

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So there's no question that cities

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and states have the authority to

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make those rules so long as they're

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content neutral. You can't say,

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for example, no blocking of

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the streets in a protest unless it's

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a protest about schools, or

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no blocking the streets except for

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political purposes or something like

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that. So these are very broad.

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Very straightforward rules, a

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general neutrality principle,

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and a general rule of

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the regulation should go to the way

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expression is being undertaken, not

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as content.

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There are two complicating factors.

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One is when a city or state makes

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these rules, they have to be

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as little restrictive of

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expression as is possible.

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So an easy case of a valid rule,

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don't block the street.

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An easy case have an invalid rule,

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don't speak so loudly that someone

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is offended.

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Somewhere in between there

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is the space

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of difficult cases.

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Does this rule, in the

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name of preserving order, the

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name a time, place, and manner

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regulation, have the effect of

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unnecessarily limiting people's

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ability to express themselves?

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The other complicating factor is

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whatever rules are adopted, there

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has to be adequate alternative

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avenues for expression.

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So this comes up a lot, for example.

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If you think about the protests

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years ago with the World Trade

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Organization in Seattle that got a

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lot of attention, and that was one

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of the first times we saw the use of

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free speech zones.

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Police saying, this area and only

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this area is where protest is

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allowed. And the question was,

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did that leave adequate alternative

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avenues? So those are the broad

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general principles and having said

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all that, setting up an encampment

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that blocks traffic in closed

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businesses, yeah, that's very

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clearly something that is not

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protected by the First Amendment and

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something the government is

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perfectly free to put an end to.

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What happens then when a city

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doesn't enforce those rules?

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And of course, you know,

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I think we all recognize that the

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broader context of this goes back to

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Black Lives Matter and the

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pro-Palestinian encampments that got

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so much attention during the 2024

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presidential election in the first

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months of President Trump's term.

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We've seen a growth, a considerable

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growth in the last few years of

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protests and a protest in the form

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of encampment. It's just become a

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style of protesting that's become

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popular.

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And one of the problems that raises

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is precisely the problem you just

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mentioned, And you're exactly right

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to ask that question.

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What happens if, in the

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application of the rules I'm talking

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about, the state is inconsistent?

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What if some encampments are allowed

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and others are

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taken down?

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And that was precisely the claim

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that was made in the case of

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the pro-Palestinian

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encampment and pro-Israel

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legislators and citizens who

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objected to the way they were being

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treated. The claim was it was

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inconsistent.

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These encampements were being

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allowed. These students were

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being permitted to be

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disruptive. In a way that other

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student protesters had not been.

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So a city or a state can run into

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trouble by showing favoritism as

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well as disfavor.

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If you only go after,

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if you only apply these rules to

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protests or encampments that are

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about a single, from a single

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perspective, or you don't apply them

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to a single privileged perspective,

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imagine for example a city that

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never enforces these rules against

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religious protesters, but always

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does against political

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protesters, right?

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That would violate that content

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neutrality thing.

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So, the application of

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the rules has to be neutral as well

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as their formulation.

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And that's exactly where most of the

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time you get into trouble.

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Because the flip side is, whether

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we're talking about a city, or a

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university, or a state government,

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or any police force, discretion is

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always part of the job description.

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Using your judgment, deciding when

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to step in, deciding how

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much leeway to allow.

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And that always opens the

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possibility of someone claiming

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you're being inconsistent.

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So the city of Madison here,

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to a certain extent, was caught in a

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bind.

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If they failed to act

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in response to these encampments,

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they would be subject to accusations

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that they were showing favoritism to

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that political cause on the grounds

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that they would have intervened

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if these encampsments had been

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created for other purposes, and

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that's probably true.

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Let's just make up a case, imagine a

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group of people who want to

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abolish the Establishment of the

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Clause of the Constitution so that

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America can become a forthrightly

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Christian nation and to express

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their views, they block an

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intersection for a period of days.

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One suspects they'd be removed in

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pretty short order, so the city

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of Madison can't treat these

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protesters differently without

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running the risk of a constitutional

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violation.

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So we've talked about the word

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encampment coming around in

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protest movements more.

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And we can go back 15 years to the

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Act 10 protests, where the

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Capitol was occupied for more

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than a month.

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There were protest zones within

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there where the protesters

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themselves prevented media from

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accessing certain halls, legislators

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from getting into their offices.

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That was negotiated in terms

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of how people would exit the

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Capitol, the preservation of

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materials. There were very few

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arrests down to the last handful of

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people brought out.

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Obviously, the Palestinian protests

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encampment at UW-Madison required

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police intervention.

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This one did.

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Well

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And we should be clear on this.

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The Palestinian protest in Camp

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Mount UW-Madison was tolerated for a

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considerable period of time.

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The university, and this is

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the buying that they're in, they

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tried to do this with a gentle hand.

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They tried to exercise discretion to

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maximize the ability of students to

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express themselves.

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They tried find a balance between

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allowing

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this expressive activity to go

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forward while preventing disruption.

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But that becomes the problem.

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So take Act 10, for example.

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Many conservatives who opposed the

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protest, who supported Governor

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Walker, were deeply upset.

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Why are the police not throwing

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these people out? Why are they

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letting these people occupy our

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Capitol building and prevent the

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business of the government from

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going forward?

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Would they do the same if this were

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the Ku Klux Klan?

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And again, they're not wrong.

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The answer, I hope, is no.

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So this just gets back to the point

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I was making earlier.

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There is a history of encampments

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and takeovers in recent years.

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I think the Act 10 thing, I think of

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that differently. More of an

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occupational building, but that's

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fine. Uh, and governments have been

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wrestling with them and the politics

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around those government responses

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has been so amplified

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and made so partisan and fraught

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because of the way Trump treated

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those issues, uh, when he ran for

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president in 2024, um,

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that now, you know, all

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the cities, universities, states

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are, are on tenterhooks trying to

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figure out what's the right way to

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proceed. And the error on

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the side of caution is intervening

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and moving the encampments out

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rather than being unduly tolerant.

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So I want to read you a statement

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from the ACLU of Wisconsin,

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which they said the police response

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was excessive and heavy-handed,

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saying, when armed police show up

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and begin aggressively arresting and

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pepper-spraying protesters, it can

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jeopardize the safety of everyone

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involved, including demonstrators,

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law enforcement, and the surrounding

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community.

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So where does that statement fall

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within this argument?

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So I'm a big fan of the ACLU in

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general.

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That doesn't mean I agree with every

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statement every representative

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makes. This one I'm not sure about.

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Now, at the end of the day, this is

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about knowing specific facts that I

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don't know.

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And we will not know publicly unless

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and until there are criminal trials

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or investigations or some other

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fact-finding process.

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We're all relying on what we hear,

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either in the media or from

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participants.

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But I have seen reports of a dozen

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fires. I've seen reports with more

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than 10 firearms being seized.

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The narrative is that the,

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and again I can't vouch for the

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truth of this narrative, that the

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encampment had gone beyond being a

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protest encampament and become a

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general homeless encampement and

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that when the police came to move in

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they encountered resistance.

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So it is entirely possible based

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on my limited knowledge of the facts

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that the police acted completely

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proportionately, proportionately

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excuse me, in response

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to violent aggression.

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There's a very disturbing scene

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of a city employee,

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the interim police monitor who

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represents the community.

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Pushing a police officer and later

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appearing on social media,

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making what sound like statements

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threatening violence.

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If those are accurate,

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I mean, there may be some context,

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but if that's really happening, if

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statements like that are being made

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by city officials, if there's

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violent resistance to the police

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carrying out an order to

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remove these incumbents, then I'm

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afraid the SCU is wrong.

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That is unfortunate,

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but potentially necessary.

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Whether specific questions of police

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tactics were decided in an

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unfortunate way, I have no idea.

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Uh...

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And let us leave open the

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possibility, because it's far too

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late to close that barn door,

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that the police were over-aggressive

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and took advantage of the situation

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to dish out a little

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discipline of their own.

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That's possible.

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I do think it's premature,

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based on what I know at least, for

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00:09:43,990 --> 00:09:45,589
the ACLU to be making a claim like

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that.

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Kind of put a bow on this in terms

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of the First Amendment and

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protesters, because a lot of people

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say, well, my First Amendment

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00:09:52,180 --> 00:09:54,079
rights, what is the great confusion

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00:09:54,080 --> 00:09:55,619
there that comes within the bounds

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00:09:55,620 --> 00:09:57,359
of your rights versus someone else's

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rights?

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So the very short version is you

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have a right to protest up to

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the point where you're disrupting

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other people's ability to go about

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their day.

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00:10:05,400 --> 00:10:07,299
It's a simplistic version, of

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00:10:07,300 --> 00:10:08,619
course, but it's not far off.

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If you block streets, if you block

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00:10:09,940 --> 00:10:11,799
sidewalks, if you blocked access to

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00:10:11,800 --> 00:10:13,099
businesses, if you blocks people's

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00:10:13,100 --> 00:10:13,879
abilities to get in and out of their

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00:10:13,880 --> 00:10:15,459
home, if your disrupt the operation

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00:10:15,460 --> 00:10:17,559
of classrooms, for example,

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none of those is protected by the

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First Amendment.

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The First Amendment protects the

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right to express yourself in

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ways that are peaceful and

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00:10:24,120 --> 00:10:26,139
discursive. There simply is

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00:10:26,140 --> 00:10:28,759
no protection for engaging in,

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00:10:28,760 --> 00:10:29,979
well, civil disobedience.

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00:10:29,980 --> 00:10:31,619
And the reason we call it civil

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00:10:31,620 --> 00:10:33,539
disobedients is that when you do

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that, when you deliberately march

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00:10:36,080 --> 00:10:37,819
into a racially segregated lunch

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counter and integrate

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00:10:39,740 --> 00:10:41,639
it, you acknowledge you

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risk being arrested and

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00:10:43,580 --> 00:10:44,519
suffering the punishment. That's

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part of the whole civil disobedient

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00:10:46,120 --> 00:10:47,139
paradigm.

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And it can be a very honorable

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thing. But there is not a First

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Amendment right to engage in acts

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00:10:52,260 --> 00:10:54,029
that would otherwise be friends.

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00:10:54,030 --> 00:10:55,069
Professor Schwaber, thanks for your

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00:10:55,070 --> 00:10:55,519
time today.

396
00:10:55,520 --> 00:10:56,520
Thank you so much.

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00:11:05,360 --> 00:11:07,279
Oh man, I'm all

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00:11:07,280 --> 00:11:08,379
like, worked up on those.

399
00:11:09,520 --> 00:11:11,039
It's one of my favorite topics, so

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00:11:11,040 --> 00:11:12,279
we will be coming back to it soon

401
00:11:12,280 --> 00:11:13,280
enough.