Reporting from Madison. I'm Murv Seymour for here and
Now. >> 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 Schweber. Thanks for your time today.
>> Well, thank you for having me.
initially took over the intersection where a man
was shot and killed by police, they were
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 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. 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. The other
complicating factor is whatever rules are adopted,
there has to be adequate alternative avenues for
expression. So those are the broad general
principles. And having said all that, setting up an
encampment that blocks traffic and close
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. >> So what happens then
when a city doesn't enforce those rules?
>> Right. So 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 protests 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, which is
and you're exactly right to ask that question what
happens if the application of the rules I'm talking
about the state is inconsistent? What if some
encampments allowed and others, you know, are taken
down? And that was precisely the claim that
was made in the case of the of the pro-Palestinian
encampments and pro-Israel legislators and citizens
who objected to the way they were being treated.
The claim was it was inconsistent. These
encampments were being allowed. These students
were being allowed were being allowed, being
permitted to be disruptive in a way that other student
protesters had not been. So a city or state can run
into trouble by showing favoritism as well as
disfavor. 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 we've talked about the word encampment coming
around in protest movements more. And, you know, we can
go back 15 years to the act ten protests where the
capital 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 to their offices.
That was negotiated in terms of how people would
exit the capital, the preservation of materials.
There were very few arrests down to the last handful of
people brought out, obviously, the Palestinian
protest encampment on UW-Madison required police
intervention. This one did. >> Well, we should be clear
on this. The Palestinian protest in Kamala Madison
was tolerated for a considerable period of time.
The university and, you know, this is the bind 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 to find a balance between allowing this, this
expressive activity to go forward while preventing
disruption. But that becomes the problem. So
take Acton, for example, many conservatives who
oppose the protests 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, governments have been
wrestling with them, and the politics around those
government responses has been so amplified and made
so partizan and fraught because of the way Trump
treated those issues when he ran for president in
2024, that now, you know, all the cities,
universities, states are on tenterhooks trying to
way to proceed. And the error on the side of
caution is intervening and moving the encampments out
rather than being unduly tolerant.
>> So kind of put a bow on this in terms of the First
Amendment and protesters, well, it's my First
Amendment rights. What is the great confusion there
that comes within the bounds of your rights
versus someone else's rights?
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. This is a simplistic, simplistic
version, of course, but it's not far off if you
block streets, if you block sidewalks, if you block
access to businesses, if you block people's ability
to get out of their home, if you disrupt the
operation of classrooms, for example, none of those
is protected by the First Amendment. The First
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 disobedience is that when
you do that, when you deliberately march into a
racially segregated lunch counter and integrate it,
right, you acknowledge you risk being arrested and
suffering the punishment. That's part of the whole
civil disobedience paradigm. And it's an honorable it
can be a very honorable thing. But there is not a