1 00:00:00,000 --> 00:00:24,000 The first amendment to the Constitution protects our freedom of speech and the freedom to assembly, 2 00:00:24,000 --> 00:00:25,240 including to protest. 3 00:00:25,240 --> 00:00:26,840 But what are the limits to those rights? 4 00:00:26,840 --> 00:00:30,840 For that, we welcome UW-Madison political science professor Emeritus Howard Schwaber. 5 00:00:30,840 --> 00:00:31,840 Thanks for your time today. 6 00:00:31,840 --> 00:00:32,840 Well, thank you for having me. 7 00:00:32,840 --> 00:00:37,840 So when protesters initially took over the intersection where a man was shot and killed by police, 8 00:00:37,840 --> 00:00:40,840 they were exercising their right to assemble. 9 00:00:40,840 --> 00:00:44,840 Were they still within their legal constitutional rights to be in that public space? 10 00:00:44,840 --> 00:00:47,840 No, or to put it differently, not necessarily. 11 00:00:47,840 --> 00:00:48,840 So let's back up a step. 12 00:00:48,840 --> 00:00:52,840 The way these kind of rules, the way rights in general, we talk about them, 13 00:00:52,840 --> 00:00:57,840 not in terms of you have the right to do X, but in terms, can the government stop you from doing X? 14 00:00:57,840 --> 00:01:00,840 It's always a negative constraint on what the government may do. 15 00:01:00,840 --> 00:01:05,840 With the implication that anything that's not prohibited, you must be left free to undertake. 16 00:01:05,840 --> 00:01:09,840 So the rules are the government is perfectly free to make what are called content neutral, 17 00:01:09,840 --> 00:01:11,840 time, place, and manner regulations. 18 00:01:11,840 --> 00:01:14,840 And these are things like don't use loudspeakers at night. 19 00:01:14,840 --> 00:01:15,840 Don't kep over night in a park. 20 00:01:15,840 --> 00:01:17,840 Those are actual old cases. 21 00:01:18,840 --> 00:01:24,840 So there's no question that cities and states have the authority to make those rules so long as they're content neutral. 22 00:01:24,840 --> 00:01:30,840 You can't say, for example, no blocking the streets in a protest, unless it's a protest about schools, 23 00:01:30,840 --> 00:01:34,840 or no blocking the streets except for political purposes, or something like that. 24 00:01:34,840 --> 00:01:39,840 So these are very broad, very straightforward rules, a general neutrality principle, 25 00:01:39,840 --> 00:01:45,840 and a general rule of the regulations should go to the way expressions being undertaken, not as content. 26 00:01:45,840 --> 00:01:47,840 There are two complicating factors. 27 00:01:47,840 --> 00:01:55,840 One is, when a city or state makes these rules, they have to be as little restrictive of expression as is possible. 28 00:01:55,840 --> 00:01:59,840 So an easy case of a valid rule, don't block the street. 29 00:01:59,840 --> 00:02:04,840 An easy case of an invalid rule, don't speak so loudly that someone is offended. 30 00:02:04,840 --> 00:02:10,840 Somewhere in between there is the space of difficult cases. 31 00:02:10,840 --> 00:02:17,840 Does this rule, in the name of preserving order, the name of a time, place, and manner regulation, 32 00:02:17,840 --> 00:02:21,840 have the effect of unnecessarily limiting people's ability to express themselves? 33 00:02:21,840 --> 00:02:29,840 The other complicating factor is whatever rules are adopted, there has to be adequate alternative avenues for expression. 34 00:02:29,840 --> 00:02:34,840 So this comes up a lot, for example, if you think about the protest years ago with the World Trade Organization in Seattle, 35 00:02:34,840 --> 00:02:38,840 that got a lot of attention, and that was one of the first times we saw the use of free speech zones. 36 00:02:38,840 --> 00:02:46,840 Please say this area and only this area is where protest is allowed, and the question was, did that leave adequate alternative avenues? 37 00:02:46,840 --> 00:02:52,840 So those are the broad general principles, and having said all that, setting up an encampment that blocks traffic and close businesses, 38 00:02:52,840 --> 00:02:58,840 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. 39 00:02:58,840 --> 00:03:02,840 So what happens then when a city doesn't enforce those rules? 40 00:03:02,840 --> 00:03:08,840 And of course, I think we all recognize that the broader context of this goes back to Black Lives Matter, 41 00:03:08,840 --> 00:03:16,840 and the pro-Palestinian encampments, that got so much attention during the 20-24 presidential election in the first months of President Trump's term. 42 00:03:16,840 --> 00:03:23,840 We've seen a growth, a considerable growth in the last few years, of protests and a protest in the form of encampment. 43 00:03:23,840 --> 00:03:26,840 It's just become a style of protesting that's become popular. 44 00:03:26,840 --> 00:03:32,840 And one of the problems that raises precise the problem you just mentioned, and you're exactly right to ask that question, 45 00:03:32,840 --> 00:03:37,840 what happens if the application of the rules I'm talking about? 46 00:03:37,840 --> 00:03:42,840 The state is inconsistent. One of some encampments all out and others are taken down. 47 00:03:42,840 --> 00:03:54,840 And that was precisely the claim that was made. In the case of the pro-Palestinian encampments and pro-Israel legislators and citizens who objected to the way they were being treated, 48 00:03:54,840 --> 00:03:59,840 the claim was it was inconsistent. These encampments were being allowed, these students were being allowed, 49 00:03:59,840 --> 00:04:04,840 were being permitted to be disruptive in a way that other student protesters had not been. 50 00:04:04,840 --> 00:04:09,840 So a city or a state can run into trouble by showing favoritism as well as disfavor. 51 00:04:09,840 --> 00:04:16,840 If you only apply these rules to protests or encampments from a single perspective, 52 00:04:16,840 --> 00:04:21,840 or you don't apply them to a single privileged perspective, imagine, for example, 53 00:04:21,840 --> 00:04:28,840 a city that never enforces these rules against religious protesters, but always does against political protesters. 54 00:04:28,840 --> 00:04:31,840 That would violate that content neutrality thing. 55 00:04:31,840 --> 00:04:35,840 So the application of the rules has to be neutral as well as their formulation. 56 00:04:35,840 --> 00:04:41,840 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, 57 00:04:41,840 --> 00:04:47,840 or a university, or a state government, or any police force, discretion is always part of the job description. 58 00:04:48,840 --> 00:04:53,840 Using your judgment, deciding when to step in, deciding how much leeway to allow, 59 00:04:53,840 --> 00:04:57,840 and that always opens the possibility of someone claiming you're being inconsistent. 60 00:04:57,840 --> 00:05:02,840 So the city of Madison here, to a certain extent, was caught in a bind. 61 00:05:02,840 --> 00:05:09,840 If they failed to act in response to these encampments, they would be subject to accusations that they were showing favoritism 62 00:05:09,840 --> 00:05:15,840 to that political cause on the grounds that they would have intervened if these encampments had been created for other purposes, 63 00:05:15,840 --> 00:05:24,840 that's probably true. Let's just make up a case. Imagine a group of people who want to abolish the establishment clause of the Constitution, 64 00:05:24,840 --> 00:05:30,840 so that America can become a fourth-party Christian nation, and to express their views, they block an intersection for a period of days. 65 00:05:30,840 --> 00:05:37,840 One suspects they'd be removed in pretty short order, so the city of Madison can't treat these protesters differently 66 00:05:37,840 --> 00:05:40,840 without running the risk of a constitutional violation. 67 00:05:40,840 --> 00:05:45,840 So we've talked about the word encampment, coming around in protest movements more, 68 00:05:45,840 --> 00:05:51,840 and we can go back 15 years to the Act 10 protests, where the capital was occupied for more than a month. 69 00:05:51,840 --> 00:05:57,840 There were protest zones within there where the protesters themselves prevented media from accessing certain halls, 70 00:05:57,840 --> 00:06:03,840 legislators from getting to their offices. That was negotiated in terms of how people would exit the capital, 71 00:06:03,840 --> 00:06:08,840 the preservation of materials. There were very few arrests down to the last handful of people brought out. 72 00:06:08,840 --> 00:06:14,840 Obviously, the Palestinian protest encampment at UW-Madison required police intervention. This one did. 73 00:06:14,840 --> 00:06:21,840 Well, we should be clear on this. The Palestinian protest in Camp Maria UW-Madison was tolerated for a considerable period of time. 74 00:06:21,840 --> 00:06:27,840 The university, and, you know, this is the bind that they're in, they tried to do this with a gentle hand. 75 00:06:27,840 --> 00:06:31,840 They tried to exercise discretion to maximize the ability of students to express themselves. 76 00:06:31,840 --> 00:06:39,840 They tried to find a balance between allowing this expressive activity to go forward while preventing disruption. 77 00:06:39,840 --> 00:06:46,840 But that becomes the problem. So take Act 10, for example. Many conservatives who opposed the protest, who supported Governor Walker, 78 00:06:46,840 --> 00:06:49,840 were deeply upset. Why are the police not throwing these people out? 79 00:06:49,840 --> 00:06:54,840 Why are they letting these people occupy our capital building and prevent the business of the government from going forward? 80 00:06:54,840 --> 00:06:58,840 Would they do the same if this was the Ku Klux Klan? And again, they're not wrong. 81 00:06:58,840 --> 00:07:03,840 The answer I hope is no. So this just gets back to the point I was making earlier. 82 00:07:03,840 --> 00:07:11,840 There is a history of encampments and takeovers in recent years. I think of that differently, more of an occupational building. 83 00:07:11,840 --> 00:07:19,840 That's fine. And governments have been wrestling with them. And the politics around those government responses has been so amplified 84 00:07:19,840 --> 00:07:26,840 and made so partisan and fraught because of the way Trump treated those issues when he ran for President in 2024 85 00:07:26,840 --> 00:07:33,840 that now, you know, all the universities, the universities, states are on tender hooks trying to figure out what's the right way to proceed. 86 00:07:33,840 --> 00:07:40,840 And the error on the side of caution is intervening and moving the encampments out rather than being unduly tolerant. 87 00:07:40,840 --> 00:07:47,840 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 88 00:07:47,840 --> 00:07:51,840 when armed police show up and begin aggressively arresting and pepper-spraying protesters, 89 00:07:51,840 --> 00:07:57,840 it can jeopardize the safety of everyone involved, including demonstrators, law enforcement and the surrounding community. 90 00:07:57,840 --> 00:08:00,840 So where does that statement fall within this argument? 91 00:08:00,840 --> 00:08:05,840 So I'm a big fan of the ACLU in general. That doesn't mean I agree with every statement every representative makes. 92 00:08:05,840 --> 00:08:10,840 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. 93 00:08:10,840 --> 00:08:16,840 And we will not know publicly unless and until there are criminal trials or investigations or some other fact-finding process. 94 00:08:16,840 --> 00:08:20,840 We're all relying on what we hear either in the media or from participants. 95 00:08:20,840 --> 00:08:26,840 But I have seen reports of a dozen fires. I've seen reports of more than ten firearms being seized. 96 00:08:26,840 --> 00:08:34,840 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 encampment 97 00:08:34,840 --> 00:08:40,840 and become a general homeless encampment, and that when the police came to move in, they encountered resistance. 98 00:08:40,840 --> 00:08:46,840 So it is entirely possible, based on my limited knowledge of the facts, that the police acted completely proportionately. 99 00:08:46,840 --> 00:08:49,840 Proportionately, excuse me, in response to violent aggression. 100 00:08:49,840 --> 00:08:56,840 There's a very disturbing scene of a city employee, the interim police monitor who represents the community, 101 00:08:56,840 --> 00:09:03,840 pushing a police officer and later appearing on social media, making what sound like statements threatening violence. 102 00:09:03,840 --> 00:09:09,840 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, 103 00:09:09,840 --> 00:09:14,840 if there's violent resistance to the police carrying out an order to remove these encampments, 104 00:09:14,840 --> 00:09:19,840 then I'm afraid the city was wrong. That is unfortunate, but potentially necessary. 105 00:09:19,840 --> 00:09:25,840 Whether, you know, specific questions of police tactics were decided in an unfortunate way. I have no idea. 106 00:09:25,840 --> 00:09:31,840 And let us leave open the possibility because it's far too late to close that barn door. 107 00:09:31,840 --> 00:09:38,840 That the police were over-aggressive and took advantage of the situation to dish out a little discipline of their own. 108 00:09:38,840 --> 00:09:45,840 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. 109 00:09:45,840 --> 00:09:50,840 So kind of put a bow on this in terms of the First Amendment and protesters, because a lot of people say, 110 00:09:50,840 --> 00:09:56,840 well, my First Amendment writes, what is the great confusion there that comes within the bounds of your rights versus someone else's rights? 111 00:09:56,840 --> 00:10:04,840 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. 112 00:10:04,840 --> 00:10:11,840 It's a simplistic version, of course, but it's not far off. If you block streets, if you block sidewalks, if you block access to businesses, 113 00:10:11,840 --> 00:10:16,840 if you block people's ability to get in and out of their home, if you disrupt the operation of classrooms, for example, 114 00:10:16,840 --> 00:10:19,840 none of those is protected by the First Amendment. 115 00:10:19,840 --> 00:10:24,840 The First Amendment protects the right to express yourself in ways that are peaceful and discursive. 116 00:10:24,840 --> 00:10:29,840 There simply is no protection for engaging in, well, civil disobedience. 117 00:10:29,840 --> 00:10:33,840 And the reason we call it civil disobedience is that when you do that, 118 00:10:33,840 --> 00:10:39,840 when you deliberately march into a racially segregated lunch counter and integrate it, 119 00:10:39,840 --> 00:10:43,840 you acknowledge you risk being arrested and suffering the punishment. 120 00:10:43,840 --> 00:10:46,840 That's part of the whole civil disobedience paradigm. 121 00:10:46,840 --> 00:10:52,840 It can be a very honorable thing, but there is not a First Amendment right to engage in acts that would otherwise be crimes. 122 00:10:52,840 --> 00:10:54,840 All right, Professor Schwaiber, thanks for your time today. 123 00:10:54,840 --> 00:10:56,840 Thank you so much. 124 00:10:59,840 --> 00:11:06,840 Thank you very much. 125 00:11:06,840 --> 00:11:09,840 Oh, man, I'm all like the ball prep there. 126 00:11:09,840 --> 00:11:11,840 Worked up on those. 127 00:11:11,840 --> 00:11:14,840 No, it's one of my favorite topics, so we will be coming back to it soon enough.