UW polisci prof Howard Schweber responds to my "Who started the restriction of access to the Wisconsin Capitol...?"

The full text of his email appears with the original post, here. You can read it there as a solid block of text without my bloggerly intrusions and elisions — which is what you're going to get here. Prof. Schweber writes:

1) Last Saturday protest leaders explained to me that the restrictions on entrances (only two open at opposite ends of the rotunda) had been set up by the police, and that the protest marshal's were voluntarily helping to enforce them to preserve good relations with the cooperation of the protesters themselves. This is what smart organizers do -- your claim that the restrictions "originated" with the protesters, as far as I know, is incorrect. 

I didn't "claim" anything. I described my experience, asked questions, suggested inferences from my evidence, and challenged people to bring in evidence that would prove me wrong. Good lord, my post ends with "PROVE ME WRONG" — and I almost never do all caps.

I welcome Prof. Schweber's contribution of his own evidence, which is a report of what "smart organizers" said to him. If they were so smart, they were concerned about PR, so they have a motive to distort the story. I'll assume Schweber is making a reasonably accurate summary of their statements — even though he paraphrased my post inaccurately — but I still don't trust them. They are doing politics as they talk to him. And, actually, Schweber is doing politics too. But he's a political scientist. I would love to hear a politically scientific analysis of the statements they made to him. Anyway, in evidence terms, we are dealing with double hearsay.

I don't even know who these "protest leaders" are. Meade and I were told — by protest leaders? — that there was no "hierarchy." Can you name them? Will they go on record by name, with written statements naming the police officials that they worked with, explaining what the process was in arriving at the policy, a written copy of the policy, how that policy was conveyed to the citizen-enforcers, and who the citizen-enforcers were? I see that some press outlets are suing Gov. Walker to get access to his email under the state open records law. I should make an open records request to the police to get their email with the protest leaders.

Anyway, this is a question of proof, and now we have 2 sets of data. Protest leaders told Prof. Schweber that the "marshals" were enforcing police restrictions. The duct-tape-labeled "marshal" who tried to stop me would not respond to my pointed inquiries about his authority and my repeated question "Who are you?" He did not say, "I am working with the police, and the police set up this policy." I wanted to know! I would have reported whatever information he gave me at that point, but it was withheld.

Indeed, I — and Meade! — were quickly shooed through the door — in violation of the policy. They really didn't want to have to talk with me. I would have video-recorded the encounter with the "marshal," and we would now have an accurate report of his assertion about what the arrangement was between the private-citizen "marshal" and the Capitol police. (It would still be hearsay.) The evidence we got instead was the decision to send me and Meade through the door, and we now must use that action as basis for inferences.

The inference I made in my original post was that he had no authority, that private citizens were appropriating a police role toward the public. Based on Schweber's report, I'm entertaining the possibility that the inference is that they were working with the police in a way that they didn't want to talk about. As Schweber says:

You may have a good argument to the effect that private citizens should not assist the police in enforcing lawful orders--although that's a pretty longstanding tradition. 

Really? I'd have to do some research into the nature of that tradition. Private citizens, after secretly consulting with the police to find a way to make their protest demonstration work well, can acquire the power to restrict access to an important public building — the most important building in the state, housing all 3 branches of state government — not just for members of their own group but for anyone else who attempts to enter, and they do not even need to explain to those citizens that they have been given the authority of the police? Citations, please.

And of course, if there were evidence that pro-Walker protesters were being treated differently than pro-union protesters that would be a different story, but I haven't heard anything to that effect.

The "marshal" told me that only a certain type of person was allowed to go right in and on his own determined that I was the sort of person who had to go wait in a long line — with the protesters who shared his agenda of making the event look orderly and pleasant. But I wasn't one of them, and I deeply resented being told, by a private citizen, that I belonged with them and not with the privileged people who got through that door. Please note that I did not say "Don't you know who I am?!" I said "Who are you?" And he would not answer. That's what got me through the door. You might think I was delighted that I sneaked in ahead of the line. I did not. I stood there, livid, and yelled "How dare he!" about 10 times before Meade calmed me down.

The restrictions to which the judge's order referred were not about closing doors and making people stand in line. 

Of course they weren't! The protesters were in league with the police about that. But the higher level principle of law is the same. The judge's decision rested on Article 1, § 4 — "The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged." If that is interpreted to include access to the Capitol building, then it's not limited to the precise fact pattern that the unions' lawyers chose to raise. There's no restricted access to constitutional rights!

As I understand it, starting this past weekend Capitol police would only allow individuals into the building if the were invited by a member of a legislative staff who came to the door to escort them, and each legislator's office was limited to 8 visitors. In addition, the police would let in precisely the number of persons that equally the number of chairs in a scheduled committee meeting. 

First, I don't think that was what was going on last Saturday. Second, if the marshal had explained that to me, I would have taken it into account. He refused to answer my questions.

In addition, police told reporters that they would allow one person in for every protester inside who left. Those actions were what prompted the motion for an injunction -- not the selective blocking of entrances and requirement that people stand in line....

Right. They restricted access. And they litigated about the aspect of restricted access that they didn't like. I'm objecting to a different aspect of restricted access. I didn't litigate, but the rule of law operates at a higher level of generality than whatever happened in that particular case. Now, maybe the restriction inflicted on me can be distinguished in some significant way so that my claim of right would fail, but that has not been litigated, and I am standing on my legal argument premised on the case.

... I don't care whether one agrees with the protests or not, it is no more truthful to describe the organizers as authoritarians limiting their own supporters free speech rights than it is to characterize them as union thugs.

I didn't do either of those things. I said they limited the rights of citizens who were not part of the protest. They took over the Capitol and barked orders at regular citizens. And you seem to think it doesn't matter because they shared an interest with the police in making the demonstration look good.

In other words, this ain't the 60's. No one is throwing bombs or even rocks. These are middle class protesters assembling to make a political staement, not agitators looking for a confrontation. 

What?! What does that have to do with me? I do understand that they cared about the optics and they wanted to be admired by the citizens of Wisconsin who'd have turned against them if they were too ugly or disorderly. You seem to be saying that I need to fall in line with the protest leaders to help the protest look good. No! I want to be a free citizen, independent of those people. They can do what they want within their own group, and of course, the decision to maintain order was a good one for them. But they can't absorb me into their agenda — even if I agreed with them. (In fact, plenty of the protesters were disorderly and ugly, like the lug who assaulted Meade, and the "superman" who yelled to drown out a reasonable conversation between 2 men.)

And they are Wisconsinites: they stand in line, they cooperate, they like to keep things peaceful and benign. They're just like that. 

Again. There was a line for some people and access for others. Is it a Wisconsin thing to accept assignment to second-class citizenry? Anyway, meekness is fine for the meek, but I prefer diversity of expression. I can understand leaders of a demonstration enforcing one style of behavior for the good of the collective, but it's for individuals to decide whether they want to belong to that collective. In America. Which includes Wisconsin. And I was not one of them.

It is quite true that the protesters are not free speech absolutists or insisting on exercising their rights to the fullest possible extent -- but that's because that's not what they are protesting about (this is also not the Berkeley Free Speech movement.)...

They don't set the agenda for me. I'll be my own free-speech movement. Eh. It's not a movement. It's just freedom. I want it.

ADDED: Prof. Schweber responds, via email, to this post:

In response to some of the comments by Prof. Althouse and readers:

- As Prof. Althouse is quite aware, "content neutral time, place and manner" restrictions on expression and assembly are permitted under the First Amendment so long as they are narrowly tailored to serve a substantial government interest and leave adequate alternative avenues for expression. I have not seen or heard anything to suggest that closing all but two of the doors to the Capitol building were more than that. If she and her husband were allowed to enter through one of the other entrances, that may reflect a weakness in enforcement; that's a failure of enforcement, not a defect in the original order.

It wasn't neutral! Assuming the police set up the policy in collusion with the protesters, it was designed to facilitate one viewpoint. And people were assigned subordinate status and told to wait in line. If the policy included private citizens exercising discretion and screwing up, it's even less neutral.

- There were tons of cops on the square. no one turned over law enforcement authority. 

Well, Meade was assaulted in full view of a cop, who did nothing. This took place in a large crowd, which turned hostile, accusing Meade of being a "Walker plant."

On the other hand, I stand by my statement that there is a long tradition of private individuals assisting the police in enforcing rules of various kinds, starting with neighborhood watch groups and going from there. If the objection is that law enforcement functions should not be turned over to private citizens, I agree with that sentiment--I only said that it is not unprecedented, not that it is a good idea. I am generally opposed to the privatization of public functions.

I'll grant you there are some other situations where private cooperation with the police seem acceptable, such as the neighborhood watch group which has to do with looking for criminals. In this situation, private enforcement of police policy — if that's what it was — restricted the free of movement and access of noncriminal citizens. It was also applied unequally and, apparently, with the purpose of facilitating the dominant speakers' point of view over the rights of individuals who are not part of the larger group. It was an intimidating environment for dissenting speakers, and letting these non-neutral "marshals" boss us around added to a message of exclusion.

- I have no connection of any kind to the protesters or their organizations. I was not on the square to protest -- I was there to see what was going on. My observations were different from those of Professor Althouse.

- I disagree with Prof. Althouse's claim that she was not characterizing the protesters in any particular way; my very strong sense from her statements was that we were intended to take away an impression of the protesters and anti-free speech authoritarians, which in turn was supposed to persuade us to be unimpressed by their own efforts to secure free speech rights. I stand by that assessment.

Is that assessment based on seeing the great variety of posts I've put up on this blog in the last 3 weeks?

- Words like "hearsay" are not appropriate outside a courtroom. 

They sure are! For one thing, the word "hearsay" is used all the time in common speech. And second, hearsay refers to something very specific, which is that if all we have is a statement, there's still a question as to the truth of the statement. In the courtroom, there's the extra matter of excluding the statement, a right to confront witnesses, and various exceptions, but I'm not saying we don't get to look at the statement because it's hearsay. I'm only saying that we don't know whether the statement is true, and the fact of it's assertion doesn't make it true. It's "double hearsay," because we need to rely on hearsay even to know whether the statement was made.

I am familiar with the rules of evidence, since I have been a lawyer and tried both criminal cases (as a prosecutor) and civil cases. The rules of hearsay are designed to ensure a degree of reliability in the evidence that is relied upon in reaching a legal decision. Where ordinary reporting is concerned, there is nothing wrong with including hearsay so long as the reporter clearly indicates the nature of what s/he is quoting, as I was careful to do. Certainly any reader or listener is free to give whatever weight they want to the evidence that is reported in this fashion.

There's nothing wrong with including it, but there's also nothing wrong with someone pointing out that it's hearsay and thus needs to be considered with whatever degree of skepticism is justified under the circumstances. If protest leaders, whose names are not even offered to put their reputation on the line, said things to Prof. Schweber that put their actions in a positive light, some skepticism is warranted.

- I did not mention this in the original post, but I was first told about the need to stand in line at one of the designated doors by a Capitol police officer.

- Obviously I muffed the reporter's name due to some weird mental glitch. It is Dustin Weis, he is a reporter for WTDY radio and a  columnist.

- The "cry bullshit" phrase came from an e-mail that Prof. Althouse sent to me. I apologize for not making that clear, as well as for the inadequacy of my proofreading.

I just checked the email, and you are wrong. I had written, in my original post, "I call bullshit on Lautenschlager's 'we won.'" Your original email to me said "with all due respect, your 'crying bullshit' is bullshit." That email was a response to the post, not to any email I sent. You initiated the email exchange. It's kind of weird that when you go back, with a precise motivation to make a correction, that you would get that wrong!