People often talk about constitutional rights as though the founding fathers chiseled them in stone: fixed, immutable, inviolable. In fact, a constant interplay among competing interests shapes these rights at any given time.
Last week, while one Dane County judge halted a hastily passed bill to gut the collective bargaining rights of public employees, another issued a written decision that seems to have escaped notice. It declared that the city of Madison created an unconstitutional infringement on free speech in its application of an ordinance against signs or tables.
The case concerns Benjamin Ratliffe, a young man issued a $172 fine by Madison police while hawking copies of the Socialist Worker on State Street in March 2009. Ratliffe was cited under city ordinance 10.25(1), against "Placing Articles on Sidewalk or Terrace" because he and other members of the International Socialist Organization had set up a small table to display literature.
But Dane County Circuit Court Judge Julie Genovese said the city, not Ratliffe, was in the wrong.
"There can be no doubt that at the time he received his citation, Ratliffe was exercising his First Amendment rights to engage in political speech," she wrote in a 14-page decision (PDF). She found "no evidence that Ratliffe's small portable table impeded pedestrian flow any more than the permanent kiosk right next to the table." And she noted that the city had an especially "difficult burden to carry" in restricting First Amendment activities on State Street, given its special status as a public forum.
As Isthmus reported (Madison Cracks Down on Socialists," 9/10/09), Ratliffe received one of four citations issued to people selling the Socialist Worker, some for vending without a license. These other cases have all been resolved.
Ratliffe sought to have his citation dismissed on First Amendment grounds. In February, the Madison Municipal Court denied this, prompting his appeal.
Judge Genovese, in her ruling, specifically rejected the city's assertion that Ratliffe could have applied for a street permit, noting its significant cost and advance-application rules. This bodes ill for the city's parallel efforts to cite newspaper hawkers for lacking these permits.
Andrea Farrell, a Madison attorney who has represented Ratliffe and other members of his group, is cheered by the judge's ruling.
"No Wisconsin court or U.S. Supreme Court has held before that a table is protected under the First Amendment," she says. And while the ruling does not set a binding precedent for other courts, it has weight as "an issue of first impression."
Farrell believes Genovese's ruling protects against efforts to chisel away at First Amendment rights by focusing on ancillary conduct. It means that, at least in Madison, "You can safely assume that your use of a table in an otherwise First Amendment activity will be protected, as long as you aren't blocking traffic or creating an eyesore." Let freedom ring.
Assistant City Attorney Lara Mainella, who prosecuted Ratliffe, says "the issues are complicated" and no decision has yet been made on whether the city will appeal.
The ruling could have implications in another pending case. Last September, Madison police issued $172 citations to three individuals demonstrating at Planned Parenthood's Madison East clinic on Orin Road, over the anti-abortion signs they had on the sidewalk and terrace.
One of them, Robert Brandhagen, has challenged this citation on constitutional grounds. Madison Municipal Judge Dan Koval put the case on hold, pending resolution of Ratliffe's appeal.
Now, says Fintan Dooley, Brandhagen's Milwaukee-based attorney, "I'm hoping the city takes the signal and dismisses the charge." Mainella says the Ratliffe decision "is limited in scope and not binding on the Madison Municipal Court as to other cases."
Dooley muses that his client and the socialists have "a common fault - they bring up into the public discourse disfavored viewpoints." That's why they need judges who are willing to protect their rights, and lawyers willing to defend them. Or, as he puts it in an email, "We praise and are beholden to Ratliffe's able attorney, Andrea J. Farrell."
Farrell is similarly appreciative - of Judge Genovese. "I feel like it's a breath of fresh air from the courts," she says. "The judicial branch of government is going to uphold our constitutional rights at a time when the executive and legislative branches are cracking down on those rights."