Frederica Freyberg:

Now to other state capitol news. The on-going noontime arrests under the rotunda over the course if the summer now total more than 300. The arrests and citations are being made due to rules that require a permit for groups larger than 20. The so-called Solidarity Singers who amass each week day during the noon hour are testing the permit rules and, for the most part, being willingly arrested and cited in protest of their First Amendment rights. This week we talked with UW Law School professor Michael Scott about the situation. Scott teaches police procedure and himself served as an officer and police administrator. Scott says what's going on at the Capitol in Madison leaves fellow policing experts scratching their heads. We asked why.

Michael Scott:

This protest which was enormous in 2011, with tens of thousands of people coming down to the Capitol, by all accounts seems to have dwindled. Seemed to have dwindled, down to a handful of people singing on occasion. And what puzzled me was after all the hard work that the police, the Capitol police, the Madison police, the UW police, the Dane County sheriff had done to maintain control of the very large crowds at the Capitol, having the problem now under quite reasonable control surprised me that the police would then begin to insist on permits and begin to aggressively enforce a new rule requiring permits. And the effect of this seems to have been what one might have anticipated, is that it inspired the few protestors to grow in number, to become more adamant about their right to sing, to speak, to protest in the capitol building. And much of it seemed to me somewhat unnecessary.

Frederica Freyberg:

How should this have gone, according to the book?

Michael Scott :

I want to acknowledge that the Capitol police have a difficult task, as they did in 2011. They have a dual interest in respecting First Amendment rights in use of the Capitol for political protests. That’s embedded in the constitutions of the state of Wisconsin and the US, but they also have an obligation to keep that building useful for governing, to allow governing to occur within the building. So it’s a delicate balance, and there isn’t an absolute right and wrong way to do this. But usually police are trying to balance those two interests in a way that causes the least amount of disruption and the greatest latitude for the First Amendment to be expressed.

Frederica Freyberg:

One thing that stands out to me just as a citizen is that they handcuff people who they arrest for citations. What is your persuasion on that?

Michael Scott:

That puzzled me even more. From the first time I saw it on television cameras, I wondered what that was about. In my experience, both as a police officer in Madison, as a police administrator in a number of cities, the whole point of citing somebody, issuing them a citation, is to obviate the need to take them into custody. The logic is that the person doesn’t present an immediate threat to the public.

Frederica Freyberg:

You were speaking earlier about the tens of thousands of people who were protesting in 2011. What kind of grade would you have given the people, all of whom you kind of named, police agencies, who handled that?

Michael Scott:

I would have given them an A-plus. I was incredibly impressed with what Chief Tubbs had done, and Chief Riesling and Chief Wray and Sheriff Mahoney. I knew from talking to several of them the kind of communication they had, among themselves, but also with protestors. It was actually, I thought, a textbook example of quality policing done in a very difficult situation.

Frederica Freyberg:

What grade would you give them?

Michael Scott:

The police currently? Well, again, it somewhat depends whether one is prioritizing the First Amendment interests, in which case not a very high grade. It does not seem to be much effort to accommodate the interests of the protestors. If one is grading them on their ability to keep the Capitol quiet and peaceful, and a place where government work can be done, not a terribly high grade there, either. Because this seems to be fanning the flames of both the noise and the disruption in the Capitol building. So a C-minus, at best, I think.

Frederica Freyberg:

What about the fact that, I mean, there is this permit law in place, you know, whereby anything over 20 is a violation, and they must have the permit. So they are enforcing that.

Michael Scott:

Well, I think that’s– It’s right and it's reasonably well established in US, yet to be seen about Wisconsin, law, but US law, that the government does have a right to put reasonable time, place and manner restrictions on political protests and speech. The permit requirement doesn’t strike me as excessive. It is not that it’s grossly unreasonable. But I think the protestors want to press this point, to get it resolved, in a Wisconsin court ultimately, whether or not they are required to get a permit to do this kind of protesting. These rules were not in place in 2011 so they were adopted subsequently. Not inherently unreasonable rules. I think it’s the application of them in this particular context that troubles me more than the absolute rule itself.

Frederica Freyberg:

A federal judge has temporarily upheld the current state capitol permit rules. A final ruling is expected later this year.