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Tighter rules for Capitol protests not unlike many other states'

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Capitol protest

Protesters display banners in the Capitol rotunda before the State of the State address in Madison on Wednesday, Jan. 25, 2012.

MADISON — Want to hold a sign and sing political songs in the Capitol building in Lincoln, Neb.? Prepare to be met by a state trooper. Want to organize a protest inside the state Capitol in Columbus, Ohio? You'll have to shell out $50.

Tighter rules on protests inside the Wisconsin State Capitol have angered demonstrators and raised civil liberties concerns. But the state is in good company when it comes to regulating speech — especially loud or highly visible speech — in the seat of state government.

Nearly half of all states do not allow protests inside their Capitol buildings, a State Journal survey has found. Of the 26 states that do allow protesters to rally inside their Capitol buildings, all but six require some form of permit to hold even a small demonstration.

When asked what would happen if someone tried to hold a rally in the Nebraska state Capitol, one of 24 states that prohibits them, tourism supervisor Roxanne Smith said, "Boy, it's never happened ... I suppose the troopers would escort them out."

In Wisconsin, the decision by new Capitol Police Chief David Erwin to strictly enforce rules requiring permits for demonstrations has pitted authorities against protesters who say they shouldn't be required to get a permit if they want to express their views.

In the wake of Erwin's crackdown, which has resulted in numerous arrests and renewed vigor among the protesters, the State Journal surveyed officials in each of the 50 state Capitols.

Wisconsin Department of Administration spokeswoman Stephanie Marquis said the results of the survey show that Wisconsin's requirements are reasonable and "much more generous" than those in other states.

"The permitting process is there to make sure that everyone has a voice, and that everyone can use the Capitol," Marquis said.

The American Civil Liberties Union of Wisconsin, however, argues that requiring permits is unnecessary and infringes on free speech rights. Spokeswoman Stacy Harbaugh said the rules in other states are not as important as the Wisconsin Capitol's history as a center of protests and demonstrations.

"(The Capitol) is a space for First Amendment rights," Harbaugh said. "And that's bigger than a permit."

UW-Madison professor Donald Downs, an expert on the First Amendment, said courts have found permit requirements like those in the Capitol — especially those without a fee — are constitutional and don't infringe on free speech.

"Permits alone are not that big a deal," Downs said. "As long as it's free, that's certainly reasonable."

But Downs also questioned those states that don't allow rallies in their Capitols at all, because the buildings are considered public forums.

Historic protests prompt change

Wisconsin has required a permit for demonstrations at the Capitol since 1979. But last December, Gov. Scott Walker's administration adopted additional rules including requiring permits for gatherings of four or more people after the historic — and sustained — protests of 2011.

The permits, which are free, must be obtained 72 hours before an event. Events may not disrupt building functions or obstruct "circulation through the building," and people who get permits may be required to pay the costs of any repairs, equipment setup, or excess security costs.

Under former Capitol Police Chief Charles Tubbs, police didn't enforce permit requirements during the biggest pro-union protests in February 2011. They also opted against enforcing the policy for groups like the Solidarity Singers, who have gathered in the Capitol rotunda without a permit on most weekdays since then.

Soon after Erwin took over as chief, however, he said he would enforce the permit requirement. Erwin has lived up to that promise, with Capitol police issuing 23 citations for violations of Capitol rules regarding signs and permits in just one week earlier this month.

Marquis said Capitol Police have made it clear they will approve permit applications for groups like the Solidarity Singers, but protesters have never tried to get them.

Capitol Police have accepted 397 permits this year and denied three — one because it sought to reserve city property, which is outside their jurisdiction, and two because they presented scheduling conflicts.

"This has nothing to do with content or ideas," Marquis said. Police "need to know crowd size (and) how many people are coming."

Brandon Barwick, who helps organize the singalong, said he has never sought a permit for the group, and that he views rules requiring them as a violation of his free speech rights.

"Having to seek out permission in order to protest your government doesn't make any sense to me," Barwick said.

Rules vary widely by state

States that do not allow rallies inside their Capitols cite such concerns as the size of the building and the potential for protests to disrupt state business, the newspaper's survey found.

Many states, like Colorado, only allow outdoor protests on places like the Capitol steps or grounds.

Downs said a policy banning indoor protests could be open to a challenge in court.

"It poses constitutional problems because state Capitols are public forums," he said.

But courts have upheld the government's right to put "time, place and manner" restrictions on speech, Downs said, such as by requiring a permit or excluding protests from certain areas.

Rules vary widely among states that allow rallies inside, although six do let some groups demonstrate without a permit.

In Washington state, for example, a group of fewer than 25 people can rally in the Capitol without needing a permit.

Michigan and New York do not issue permits for rallies inside their Capitols, but officials said up to a couple dozen people would be allowed to protest without one.

Among states that do require a permit, some are more restrictive than Wisconsin.

In Ohio, groups of two or more must pay $50 for each day they want to protest inside the statehouse, while in South Dakota no event can last longer than three consecutive days.

Check your signs at the door

A number of the Capitols that allow protests and rallies inside their buildings also put different restrictions on what people can bring inside, such as signs on sticks and banners attached to the walls.

Others are more strict: Oklahoma doesn't allow signs larger than 8 by 10 inches, while Oregon does not allow any signs.

Wisconsin prohibits signs on sticks and attaching things to the Capitol walls, although that rule went unenforced at the height of the 2011 protests, when demonstrators blanketed the walls with literature and picket signs.

Minnesota adds the caveat that rallies cannot disrupt government business, a common complaint leveled against the protesters who still appear daily in the rotunda of Wisconsin's Capitol.

Also during the 2011 protests, the use of metal detectors at the Capitol entrances was a major issue. According to the National Conference of State Legislatures, 23 states use metal detectors or X-ray bags at their Capitol entrances.

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