The First Amendment to the
Constitution protects our freedom of
speech and the freedom to assembly,
including to protest.
But what are the limits to those
rights? For that, we welcome
UW-Madison Political Science
Professor Emeritus Howard Schwaber.
Thanks for your time today.
Well, thank you for having me.
So when protesters initially took
over the intersection where a man
was shot and killed by police, they
were exercising their right to
assemble.
Were they still within their legal
constitutional rights to be in that
public space?
No, or to put it differently, not
necessarily.
So let's back up a step.
The way these kind of rules, the way
rights in general, we talk about
them is not in terms of you have
the right to do x, but in terms can
the government stop you from doing
x. It's always a negative constraint
on what the government may do.
With the implication that anything
that's not prohibited, you
must be left free to undertake.
So the rules are the government is
perfectly free to make what are
called content neutral time, place,
and manner regulations.
And these are things like, don't use
loudspeakers at night.
Don't camp overnight in a park.
Those are actual old cases.
So there's no question that cities
and states have the authority to
make those rules so long as they're
content neutral. You can't say,
for example, no blocking of
the streets in a protest unless it's
a protest about schools, or
no blocking the streets except for
political purposes or something like
that. So these are very broad.
Very straightforward rules, a
general neutrality principle,
and a general rule of
the regulation should go to the way
expression is being undertaken, not
as content.
There are two complicating factors.
One is when a city or state makes
these rules, they have to be
as little restrictive of
expression as is possible.
So an easy case of a valid rule,
don't block the street.
An easy case have an invalid rule,
don't speak so loudly that someone
is offended.
Somewhere in between there
is the space
of difficult cases.
Does this rule, in the
name of preserving order, the
name a time, place, and manner
regulation, have the effect of
unnecessarily limiting people's
ability to express themselves?
The other complicating factor is
whatever rules are adopted, there
has to be adequate alternative
avenues for expression.
So this comes up a lot, for example.
If you think about the protests
years ago with the World Trade
Organization in Seattle that got a
lot of attention, and that was one
of the first times we saw the use of
free speech zones.
Police saying, this area and only
this area is where protest is
allowed. And the question was,
did that leave adequate alternative
avenues? So those are the broad
general principles and having said
all that, setting up an encampment
that blocks traffic in closed
businesses, yeah, that's very
clearly something that is not
protected by the First Amendment and
something the government is
perfectly free to put an end to.
What happens then when a city
doesn't enforce those rules?
And of course, you know,
I think we all recognize that the
broader context of this goes back to
Black Lives Matter and the
pro-Palestinian encampments that got
so much attention during the 2024
presidential election in the first
months of President Trump's term.
We've seen a growth, a considerable
growth in the last few years of
protests and a protest in the form
of encampment. It's just become a
style of protesting that's become
popular.
And one of the problems that raises
is precisely the problem you just
mentioned, And you're exactly right
to ask that question.
What happens if, in the
application of the rules I'm talking
about, the state is inconsistent?
What if some encampments are allowed
and others are
taken down?
And that was precisely the claim
that was made in the case of
the pro-Palestinian
encampment and pro-Israel
legislators and citizens who
objected to the way they were being
treated. The claim was it was
inconsistent.
These encampements were being
allowed. These students were
being permitted to be
disruptive. In a way that other
student protesters had not been.
So a city or a state can run into
trouble by showing favoritism as
well as disfavor.
If you only go after,
if you only apply these rules to
protests or encampments that are
about a single, from a single
perspective, or you don't apply them
to a single privileged perspective,
imagine for example a city that
never enforces these rules against
religious protesters, but always
does against political
protesters, right?
That would violate that content
neutrality thing.
So, the application of
the rules has to be neutral as well
as their formulation.
And that's exactly where most of the
time you get into trouble.
Because the flip side is, whether
we're talking about a city, or a
university, or a state government,
or any police force, discretion is
always part of the job description.
Using your judgment, deciding when
to step in, deciding how
much leeway to allow.
And that always opens the
possibility of someone claiming
you're being inconsistent.
So the city of Madison here,
to a certain extent, was caught in a
bind.
If they failed to act
in response to these encampments,
they would be subject to accusations
that they were showing favoritism to
that political cause on the grounds
that they would have intervened
if these encampsments had been
created for other purposes, and
that's probably true.
Let's just make up a case, imagine a
group of people who want to
abolish the Establishment of the
Clause of the Constitution so that
America can become a forthrightly
Christian nation and to express
their views, they block an
intersection for a period of days.
One suspects they'd be removed in
pretty short order, so the city
of Madison can't treat these
protesters differently without
running the risk of a constitutional
violation.
So we've talked about the word
encampment coming around in
protest movements more.
And we can go back 15 years to the
Act 10 protests, where the
Capitol was occupied for more
than a month.
There were protest zones within
there where the protesters
themselves prevented media from
accessing certain halls, legislators
from getting into their offices.
That was negotiated in terms
of how people would exit the
Capitol, the preservation of
materials. There were very few
arrests down to the last handful of
people brought out.
Obviously, the Palestinian protests
encampment at UW-Madison required
police intervention.
This one did.
Well
And we should be clear on this.
The Palestinian protest in Camp
Mount UW-Madison was tolerated for a
considerable period of time.
The university, and this is
the buying that they're in, they
tried to do this with a gentle hand.
They tried to exercise discretion to
maximize the ability of students to
express themselves.
They tried find a balance between
allowing
this expressive activity to go
forward while preventing disruption.
But that becomes the problem.
So take Act 10, for example.
Many conservatives who opposed the
protest, who supported Governor
Walker, were deeply upset.
Why are the police not throwing
these people out? Why are they
letting these people occupy our
Capitol building and prevent the
business of the government from
going forward?
Would they do the same if this were
the Ku Klux Klan?
And again, they're not wrong.
The answer, I hope, is no.
So this just gets back to the point
I was making earlier.
There is a history of encampments
and takeovers in recent years.
I think the Act 10 thing, I think of
that differently. More of an
occupational building, but that's
fine. Uh, and governments have been
wrestling with them and the politics
around those government responses
has been so amplified
and made so partisan and fraught
because of the way Trump treated
those issues, uh, when he ran for
president in 2024, um,
that now, you know, all
the cities, universities, states
are, are on tenterhooks trying to
figure out what's the right way to
proceed. And the error on
the side of caution is intervening
and moving the encampments out
rather than being unduly tolerant.
So I want to read you a statement
from the ACLU of Wisconsin,
which they said the police response
was excessive and heavy-handed,
saying, when armed police show up
and begin aggressively arresting and
pepper-spraying protesters, it can
jeopardize the safety of everyone
involved, including demonstrators,
law enforcement, and the surrounding
community.
So where does that statement fall
within this argument?
So I'm a big fan of the ACLU in
general.
That doesn't mean I agree with every
statement every representative
makes. This one I'm not sure about.
Now, at the end of the day, this is
about knowing specific facts that I
don't know.
And we will not know publicly unless
and until there are criminal trials
or investigations or some other
fact-finding process.
We're all relying on what we hear,
either in the media or from
participants.
But I have seen reports of a dozen
fires. I've seen reports with more
than 10 firearms being seized.
The narrative is that the,
and again I can't vouch for the
truth of this narrative, that the
encampment had gone beyond being a
protest encampament and become a
general homeless encampement and
that when the police came to move in
they encountered resistance.
So it is entirely possible based
on my limited knowledge of the facts
that the police acted completely
proportionately, proportionately
excuse me, in response
to violent aggression.
There's a very disturbing scene
of a city employee,
the interim police monitor who
represents the community.
Pushing a police officer and later
appearing on social media,
making what sound like statements
threatening violence.
If those are accurate,
I mean, there may be some context,
but if that's really happening, if
statements like that are being made
by city officials, if there's
violent resistance to the police
carrying out an order to
remove these incumbents, then I'm
afraid the SCU is wrong.
That is unfortunate,
but potentially necessary.
Whether specific questions of police
tactics were decided in an
unfortunate way, I have no idea.
Uh...
And let us leave open the
possibility, because it's far too
late to close that barn door,
that the police were over-aggressive
and took advantage of the situation
to dish out a little
discipline of their own.
That's possible.
I do think it's premature,
based on what I know at least, for
the ACLU to be making a claim like
that.
Kind of put a bow on this in terms
of the First Amendment and
protesters, because a lot of people
say, well, my First Amendment
rights, what is the great confusion
there that comes within the bounds
of your rights versus someone else's
rights?
So the very short version is you
have a right to protest up to
the point where you're disrupting
other people's ability to go about
their day.
It's a simplistic version, of
course, but it's not far off.
If you block streets, if you block
sidewalks, if you blocked access to
businesses, if you blocks people's
abilities to get in and out of their
home, if your disrupt the operation
of classrooms, for example,
none of those is protected by the
First Amendment.
The First Amendment protects the
right to express yourself in
ways that are peaceful and
discursive. There simply is
no protection for engaging in,
well, civil disobedience.
And the reason we call it civil
disobedients is that when you do
that, when you deliberately march
into a racially segregated lunch
counter and integrate
it, you acknowledge you
risk being arrested and
suffering the punishment. That's
part of the whole civil disobedient
paradigm.
And it can be a very honorable
thing. But there is not a First
Amendment right to engage in acts
that would otherwise be friends.
Professor Schwaber, thanks for your
time today.
Thank you so much.
Oh man, I'm all
like, worked up on those.
It's one of my favorite topics, so
we will be coming back to it soon
enough.