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Reporting from Madison. I'm
Murv Seymour for here and

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Now.
>> The First Amendment to

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the Constitution protects
our freedom of speech and

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the freedom to assembly,
including to protest. But

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what are the limits to
those rights? For that, we

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welcome. UW-Madison
political science professor

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Emeritus Howard Schweber.
Thanks for your time today.

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>> Well, thank you for
having me.

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initially took over the
intersection where a man

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was shot and killed by
police, they were

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assemble. Were they still
within their legal

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constitutional rights to be
in that public space?

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>> No. Or to put it
differently, not

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necessarily. So let's back
up a step. The way these

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kind of rules, the way
rights in general we talk

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about them is not in terms
of you have the right to do

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X, but in terms, can the
government stop you from

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doing X? It's always a
negative constraint on what

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the government may do with
the implication that

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anything that's not
left free to undertake. So

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the rules are the
government is perfectly

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free to make what are
called content neutral time,

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place and manner
regulations. And these are

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things like don't use
loudspeakers at night.

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Don't camp overnight in a
park. Those are actual old

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cases. So there's no
question that cities and

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states have the authority
to make those rules, so

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long as they're content
neutral. There are two

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complicating factors. One
is when a city or state

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makes these rules, they
have to be as little

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restrictive of expression
as is possible. The other

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complicating factor is
whatever rules are adopted,

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there has to be adequate
alternative avenues for

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expression. So those are
the broad general

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principles. And having said
all that, setting up an

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encampment that blocks
traffic and close

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businesses. Yeah, that's
very clearly something that

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is not protected by the
First Amendment and

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something the government is
perfectly free to put an

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end to.
>> So what happens then

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when a city doesn't enforce
those rules?

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>> Right. So and of course,
you know, I think we all

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recognize that the broader
context of this goes back

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to Black Lives Matter and
the pro-Palestinian

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encampments that got so
much attention during the

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2024 presidential election,
in the first months of

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President Trump's term,
we've seen a growth, a

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considerable growth in the
last few years of protests

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and protests in the form of
encampment. It's just

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become a style of
protesting that's become

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popular. And one of the
problems that raises is

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precisely the problem you
just mentioned, which is

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and you're exactly right to
ask that question what

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happens if the application
of the rules I'm talking

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about the state is
inconsistent? What if some

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encampments allowed and
others, you know, are taken

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down? And that was
precisely the claim that

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was made in the case of the
of the pro-Palestinian

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encampments and pro-Israel
legislators and citizens

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who objected to the way
they were being treated.

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The claim was it was
inconsistent. These

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encampments were being
allowed. These students

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were being allowed were
being allowed, being

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permitted to be disruptive
in a way that other student

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protesters had not been. So
a city or state can run

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into trouble by showing
favoritism as well as

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disfavor. The flip side is
whether we're talking about

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a city or a university, or
a state government, or any

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police force. Discretion is
always part of the job

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description. Using your
judgment, deciding when to

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step in, deciding how much
leeway to allow. And that

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always opens the
possibility of someone

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claiming you're being
inconsistent.

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>> So we've talked about
the word encampment coming

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around in protest movements
more. And, you know, we can

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go back 15 years to the act
ten protests where the

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capital was occupied for
more than a month. There

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were protest zones within
there where the protesters

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themselves prevented media
from accessing certain

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halls, legislators from
getting to their offices.

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That was negotiated in
terms of how people would

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exit the capital, the
preservation of materials.

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There were very few arrests
down to the last handful of

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people brought out,
obviously, the Palestinian

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protest encampment on
UW-Madison required police

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intervention. This one did.
>> Well, we should be clear

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on this. The Palestinian
protest in Kamala Madison

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was tolerated for a
considerable period of time.

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The university and, you
know, this is the bind that

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they're in. They tried to
do this with a gentle hand.

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They tried to exercise
discretion to maximize the

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ability of students to
express themselves. They

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tried to find a balance
between allowing this, this

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expressive activity to go
forward while preventing

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disruption. But that
becomes the problem. So

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take Acton, for example,
many conservatives who

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oppose the protests who
supported Governor Walker

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were deeply upset. Why are
the police not throwing

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these people out? Why are
they letting these people

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occupy our Capitol building
and prevent the business of

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the government from going
forward? Would they do the

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same if this were the Ku
Klux Klan? And again,

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they're not wrong. The
answer, I hope, is no. So

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this just gets back to the
point I was making earlier.

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There is a history of
encampments and takeovers.

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In recent years,
governments have been

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wrestling with them, and
the politics around those

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government responses has
been so amplified and made

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so partizan and fraught
because of the way Trump

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treated those issues when
he ran for president in

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2024, that now, you know,
all the cities,

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universities, states are on
tenterhooks trying to

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way to proceed. And the
error on the side of

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caution is intervening and
moving the encampments out

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rather than being unduly
tolerant.

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>> So kind of put a bow on
this in terms of the First

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Amendment and protesters,
well, it's my First

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Amendment rights. What is
the great confusion there

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that comes within the
bounds of your rights

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versus someone else's
rights?

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version is you have a right
to protest up to the point

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where you're disrupting
other people's ability to

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go about their day. This is
a simplistic, simplistic

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version, of course, but
it's not far off if you

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block streets, if you block
sidewalks, if you block

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access to businesses, if
you block people's ability

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to get out of their home,
if you disrupt the

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operation of classrooms,
for example, none of those

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is protected by the First
Amendment. The First

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right to express yourself
in ways that are peaceful

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and discursive. There
simply is no protection for

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engaging in, well, civil
disobedience. And the

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reason we call it civil
disobedience is that when

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you do that, when you
deliberately march into a

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racially segregated lunch
counter and integrate it,

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right, you acknowledge you
risk being arrested and

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suffering the punishment.
That's part of the whole

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civil disobedience paradigm.
And it's an honorable it

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can be a very honorable
thing. But there is not a