Downs is very briefly raising the issue of whether it should be considered viewpoint discrimination for the protesters at the state capitol to be permitted to post signs and sleep overnight when other groups are not going to be given the same treatment.
The case he mentions is Clark v. Community for Creative Nonviolence, in which the Supreme Court upheld a neutral rule that prohibited everyone from sleeping in the park. In that case, protesters argued that they had a right to special treatment, because they were sleeping as a form of expression, to say something about the plight of the homeless.
In the current Wisconsin situation, the protesters are being allowed to do many, many things that ordinarily no one does. It's hard to imagine how the state could operate in the future if other groups were given equal treatment and permitted to stay overnight for days on end, to post thousands of signs all over the historic marble walls and pillars, to prop and post signs on the monuments, to bang drums and use a bullhorn in the rotunda to give speeches and lead chants all day long for days on end. Tell me then, what will happen when the next protester comes along and the next and the next? Hasn't the state opened the Capitol as a free speech forum in which viewpoint discrimination will be forbidden under the First Amendment?
But, you might say, the Republicans hold the political majority and the special treatment is going to their opponents. To that I say: So what? If you discriminate in favor of your political opponents, it's still viewpoint discrimination. It's interesting to speculate about why the Republicans are permitting such a giant extra helping of free speech to their opponents. Perhaps it is so they can say, when their friends show up on some later occasion — some Tea Party group? — that they must give them the same access.
But I don't believe they want that. The Capitol has for years and years been a solemn place. For 25 years, I have brought visitors there and walked slowly through the beautiful spaces looking at the different colored and patterned marble on the walls and gazing with awe up into the dome. This is the Capitol Wisconsinites know and treasure. It can't become an all-purpose free-speech forum.
At Christmastime, there is a big tree in the rotunda. The Freedom from Religion Foundation doesn't like that. This week's anti-Scott Walker people are banging on drywall buckets and chanting "This is what democracy looks like." How about a hundred atheists in the rotunda for a week in December banging on buckets and chanting "This is what stupidity looks like"? (Okay, there's a conlaw exam for you. Submit your answers and I'll grade.)
I think the Republicans are simply refraining from confrontation and waiting for the protesters to get tired and leave or — on their own — to upset the ordinary people around the state. Any attempt to sweep them out or pull down their signs might make them look sympathetic or generate an air of martyrdom, and so, I assume, it has seemed to be the wiser path to leave them alone.
UPDATE: At the Capitol today (2/26/11) I talked to the police enough to get some insight into what the legal theory is. I've got a lot of video and photographs to process this evening, so I will put off writing more about this until tomorrow.
UPDATE 2: Prof. Downs emails:
Ann raises points that merit serious First Amendment attention. In my talk last Wednesday, I raised the concern about viewpoint discrimination, but said it was outweighed at that point by public necessity. But the necessity position loses force as time passes, and police are able to adjust to the situation. Regardless of where one stands on this particular issue, it is never a valid or good thing if government grants special First Amendment rights to one group or set of protesters that it would not extend to all other groups. This is bedrock First Amendment principle based on a long history of experience. And police need to maintain a position of absolute neutrality in such matters. And it doesn't matter how peaceful or respectful a group might be behaving, for such otherwise laudatory behavior does not entitle anyone to special treatement under the law. The First Amendment either applies equally to everyone, or it is subject to political barter.