Friday, August 16, 2013

Why the Solidarity Singalong is Wrong and Doomed to Failure

Arrests at the Wisconsin State Capitol

There has been quite the brouhaha at the Wisconsin State Capitol recently with arrests and citations flying as the Solidarity Singers are hauled away in handcuffs for violating the administrative rule requiring permits for groups of more than 20 people.

And the police are within the law to do it and to keep doing it.

What the Singers seem to collectively ignore is that the right to assemble is no more absolute than any other right.  If there is compelling state interest to manage that right for reasons that are applied evenly and fairly, the state can do so.

The freedom of assembly is not unlimited. The government may limit the freedom if the instance under consideration satisfies three conditions. First, the limitation must serve an important governmental interest. For example, a law preventing people from gathering to start a violent revolution is valid. 
Second, the limitation must be content neutral. This means it must not control assemblies based on the kinds of people who gather, their reason for gathering, or their beliefs. A law preventing people from gathering to support flag burning, for example, would violate the freedom of assembly. 
Third, the limitation must restrict the freedom of assembly as little as possible to serve the important governmental interest. In Cox v. New Hampshire (1941), for instance, the Supreme Court decided that the government may require permits for parading on public streets. As long as it issues the permits without discrimination (treating different groups unequally), the government may control the time, place, and manner of assemblies for the sake of public safety and convenience.

While I applaud the Singers in their efforts to keep pressure on the Walker administration and the Wisconsin State Legislature, their efforts are ultimately doomed to failure.

Now one could make the case that this is a long-running act of civil disobedience and that the SSA are knowingly violating the law to make a point.  But that's not what I hear.  What I hear is a constant appeal to the First Amendment.

For instance...


But continuing to appeal to some absolutist interpretation of the First Amendment is akin to denying global warming: it's foolish in the face of the reality.