WEBVTT 00:00.000 --> 00:24.000 The first amendment to the Constitution protects our freedom of speech and the freedom to assembly, 00:24.000 --> 00:25.240 including to protest. 00:25.240 --> 00:26.840 But what are the limits to those rights? 00:26.840 --> 00:30.840 For that, we welcome UW-Madison political science professor Emeritus Howard Schwaber. 00:30.840 --> 00:31.840 Thanks for your time today. 00:31.840 --> 00:32.840 Well, thank you for having me. 00:32.840 --> 00:37.840 So when protesters initially took over the intersection where a man was shot and killed by police, 00:37.840 --> 00:40.840 they were exercising their right to assemble. 00:40.840 --> 00:44.840 Were they still within their legal constitutional rights to be in that public space? 00:44.840 --> 00:47.840 No, or to put it differently, not necessarily. 00:47.840 --> 00:48.840 So let's back up a step. 00:48.840 --> 00:52.840 The way these kind of rules, the way rights in general, we talk about them, 00:52.840 --> 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? 00:57.840 --> 01:00.840 It's always a negative constraint on what the government may do. 01:00.840 --> 01:05.840 With the implication that anything that's not prohibited, you must be left free to undertake. 01:05.840 --> 01:09.840 So the rules are the government is perfectly free to make what are called content neutral, 01:09.840 --> 01:11.840 time, place, and manner regulations. 01:11.840 --> 01:14.840 And these are things like don't use loudspeakers at night. 01:14.840 --> 01:15.840 Don't kep over night in a park. 01:15.840 --> 01:17.840 Those are actual old cases. 01:18.840 --> 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. 01:24.840 --> 01:30.840 You can't say, for example, no blocking the streets in a protest, unless it's a protest about schools, 01:30.840 --> 01:34.840 or no blocking the streets except for political purposes, or something like that. 01:34.840 --> 01:39.840 So these are very broad, very straightforward rules, a general neutrality principle, 01:39.840 --> 01:45.840 and a general rule of the regulations should go to the way expressions being undertaken, not as content. 01:45.840 --> 01:47.840 There are two complicating factors. 01:47.840 --> 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. 01:55.840 --> 01:59.840 So an easy case of a valid rule, don't block the street. 01:59.840 --> 02:04.840 An easy case of an invalid rule, don't speak so loudly that someone is offended. 02:04.840 --> 02:10.840 Somewhere in between there is the space of difficult cases. 02:10.840 --> 02:17.840 Does this rule, in the name of preserving order, the name of a time, place, and manner regulation, 02:17.840 --> 02:21.840 have the effect of unnecessarily limiting people's ability to express themselves? 02:21.840 --> 02:29.840 The other complicating factor is whatever rules are adopted, there has to be adequate alternative avenues for expression. 02:29.840 --> 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, 02:34.840 --> 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. 02:38.840 --> 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? 02:46.840 --> 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, 02:52.840 --> 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. 02:58.840 --> 03:02.840 So what happens then when a city doesn't enforce those rules? 03:02.840 --> 03:08.840 And of course, I think we all recognize that the broader context of this goes back to Black Lives Matter, 03:08.840 --> 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. 03:16.840 --> 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. 03:23.840 --> 03:26.840 It's just become a style of protesting that's become popular. 03:26.840 --> 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, 03:32.840 --> 03:37.840 what happens if the application of the rules I'm talking about? 03:37.840 --> 03:42.840 The state is inconsistent. One of some encampments all out and others are taken down. 03:42.840 --> 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, 03:54.840 --> 03:59.840 the claim was it was inconsistent. These encampments were being allowed, these students were being allowed, 03:59.840 --> 04:04.840 were being permitted to be disruptive in a way that other student protesters had not been. 04:04.840 --> 04:09.840 So a city or a state can run into trouble by showing favoritism as well as disfavor. 04:09.840 --> 04:16.840 If you only apply these rules to protests or encampments from a single perspective, 04:16.840 --> 04:21.840 or you don't apply them to a single privileged perspective, imagine, for example, 04:21.840 --> 04:28.840 a city that never enforces these rules against religious protesters, but always does against political protesters. 04:28.840 --> 04:31.840 That would violate that content neutrality thing. 04:31.840 --> 04:35.840 So the application of the rules has to be neutral as well as their formulation. 04:35.840 --> 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, 04:41.840 --> 04:47.840 or a university, or a state government, or any police force, discretion is always part of the job description. 04:48.840 --> 04:53.840 Using your judgment, deciding when to step in, deciding how much leeway to allow, 04:53.840 --> 04:57.840 and that always opens the possibility of someone claiming you're being inconsistent. 04:57.840 --> 05:02.840 So the city of Madison here, to a certain extent, was caught in a bind. 05:02.840 --> 05:09.840 If they failed to act in response to these encampments, they would be subject to accusations that they were showing favoritism 05:09.840 --> 05:15.840 to that political cause on the grounds that they would have intervened if these encampments had been created for other purposes, 05:15.840 --> 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, 05:24.840 --> 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. 05:30.840 --> 05:37.840 One suspects they'd be removed in pretty short order, so the city of Madison can't treat these protesters differently 05:37.840 --> 05:40.840 without running the risk of a constitutional violation. 05:40.840 --> 05:45.840 So we've talked about the word encampment, coming around in protest movements more, 05:45.840 --> 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. 05:51.840 --> 05:57.840 There were protest zones within there where the protesters themselves prevented media from accessing certain halls, 05:57.840 --> 06:03.840 legislators from getting to their offices. That was negotiated in terms of how people would exit the capital, 06:03.840 --> 06:08.840 the preservation of materials. There were very few arrests down to the last handful of people brought out. 06:08.840 --> 06:14.840 Obviously, the Palestinian protest encampment at UW-Madison required police intervention. This one did. 06:14.840 --> 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. 06:21.840 --> 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. 06:27.840 --> 06:31.840 They tried to exercise discretion to maximize the ability of students to express themselves. 06:31.840 --> 06:39.840 They tried to find a balance between allowing this expressive activity to go forward while preventing disruption. 06:39.840 --> 06:46.840 But that becomes the problem. So take Act 10, for example. Many conservatives who opposed the protest, who supported Governor Walker, 06:46.840 --> 06:49.840 were deeply upset. Why are the police not throwing these people out? 06:49.840 --> 06:54.840 Why are they letting these people occupy our capital building and prevent the business of the government from going forward? 06:54.840 --> 06:58.840 Would they do the same if this was the Ku Klux Klan? And again, they're not wrong. 06:58.840 --> 07:03.840 The answer I hope is no. So this just gets back to the point I was making earlier. 07:03.840 --> 07:11.840 There is a history of encampments and takeovers in recent years. I think of that differently, more of an occupational building. 07:11.840 --> 07:19.840 That's fine. And governments have been wrestling with them. And the politics around those government responses has been so amplified 07:19.840 --> 07:26.840 and made so partisan and fraught because of the way Trump treated those issues when he ran for President in 2024 07:26.840 --> 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. 07:33.840 --> 07:40.840 And the error on the side of caution is intervening and moving the encampments out rather than being unduly tolerant. 07:40.840 --> 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 07:47.840 --> 07:51.840 when armed police show up and begin aggressively arresting and pepper-spraying protesters, 07:51.840 --> 07:57.840 it can jeopardize the safety of everyone involved, including demonstrators, law enforcement and the surrounding community. 07:57.840 --> 08:00.840 So where does that statement fall within this argument? 08:00.840 --> 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. 08:05.840 --> 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. 08:10.840 --> 08:16.840 And we will not know publicly unless and until there are criminal trials or investigations or some other fact-finding process. 08:16.840 --> 08:20.840 We're all relying on what we hear either in the media or from participants. 08:20.840 --> 08:26.840 But I have seen reports of a dozen fires. I've seen reports of more than ten firearms being seized. 08:26.840 --> 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 08:34.840 --> 08:40.840 and become a general homeless encampment, and that when the police came to move in, they encountered resistance. 08:40.840 --> 08:46.840 So it is entirely possible, based on my limited knowledge of the facts, that the police acted completely proportionately. 08:46.840 --> 08:49.840 Proportionately, excuse me, in response to violent aggression. 08:49.840 --> 08:56.840 There's a very disturbing scene of a city employee, the interim police monitor who represents the community, 08:56.840 --> 09:03.840 pushing a police officer and later appearing on social media, making what sound like statements threatening violence. 09:03.840 --> 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, 09:09.840 --> 09:14.840 if there's violent resistance to the police carrying out an order to remove these encampments, 09:14.840 --> 09:19.840 then I'm afraid the city was wrong. That is unfortunate, but potentially necessary. 09:19.840 --> 09:25.840 Whether, you know, specific questions of police tactics were decided in an unfortunate way. I have no idea. 09:25.840 --> 09:31.840 And let us leave open the possibility because it's far too late to close that barn door. 09:31.840 --> 09:38.840 That the police were over-aggressive and took advantage of the situation to dish out a little discipline of their own. 09:38.840 --> 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. 09:45.840 --> 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, 09:50.840 --> 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? 09:56.840 --> 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. 10:04.840 --> 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, 10:11.840 --> 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, 10:16.840 --> 10:19.840 none of those is protected by the First Amendment. 10:19.840 --> 10:24.840 The First Amendment protects the right to express yourself in ways that are peaceful and discursive. 10:24.840 --> 10:29.840 There simply is no protection for engaging in, well, civil disobedience. 10:29.840 --> 10:33.840 And the reason we call it civil disobedience is that when you do that, 10:33.840 --> 10:39.840 when you deliberately march into a racially segregated lunch counter and integrate it, 10:39.840 --> 10:43.840 you acknowledge you risk being arrested and suffering the punishment. 10:43.840 --> 10:46.840 That's part of the whole civil disobedience paradigm. 10:46.840 --> 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. 10:52.840 --> 10:54.840 All right, Professor Schwaiber, thanks for your time today. 10:54.840 --> 10:56.840 Thank you so much. 10:59.840 --> 11:06.840 Thank you very much. 11:06.840 --> 11:09.840 Oh, man, I'm all like the ball prep there. 11:09.840 --> 11:11.840 Worked up on those. 11:11.840 --> 11:14.840 No, it's one of my favorite topics, so we will be coming back to it soon enough.