Protests and political rallies are happening this year in the shadow of a highly contagious virus that has spurred Wisconsin’s public health departments to limit gatherings and require face masks.
And yet officials have been loath to enforce public health orders at protests against police killings of Black people, rallies against COVID-19 restrictions and rallies for President Donald Trump and other Republicans — even as they enforce them against businesses and other citizens.
With Trump expected to hold another mask-optional, closely packed rally Saturday in Waukesha, what are officials saying about their approach, and what does the law say about balancing public health with First Amendment rights?
In general, state orders require people to wear masks indoors and limit capacity to 25% of official capacity in public places. Masks are “strongly recommended” when outdoors and social distancing cannot be maintained.
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Local jurisdictions, however, can enact their own restrictions, and they can be tougher. According to a report this month by the Legislative Reference Bureau, “at least 13 counties and 13 cities, towns or villages have enacted ordinances or issued orders or resolutions that include penalties or other enforcement mechanisms for some or all of their provisions.” Some remain in effect, some don’t.
Dane County and the city of Milwaukee, for example, require masks indoors, and Dane County caps outdoor gatherings at 25 people. Milwaukee County requires masks indoors and outdoors on county property but makes clear that most people on county property “will not be subject to county criminal or civil penalties” if they violate the mask order.
Public Health Madison and Dane County has signaled it privileges First Amendment rights over public health concerns related to large gatherings.
“The U.S. and Wisconsin constitutions strongly protect the freedom of speech and assembly,” spokeswoman Sarah Mattes said in a statement. “We encourage anyone attending a protest or rally to stay six feet from people they don’t live with, wear a cloth face covering, carry hand sanitizer and use it often, and wash their hands when they get home.”
Police have different concerns.
Madison police policy calls on officers to “protect citizens’ constitutional rights to free speech, to demonstrate and to disseminate information in a lawful and peaceful manner while protecting others’ rights to free movement, privacy and freedom from violence” and to “balance the rights of demonstrators with the rights of the community at large.”
Protests in Madison and elsewhere, however, have been conducted without permits and sometimes create safety and freedom-of-movement hazards by blocking busy roads, including the Beltline.
Madison’s acting police chief, Vic Wahl, said he understands motorists’ frustration with his department’s hands-off approach to the protests but said if his officers tried to break them up, protesters likely wouldn’t comply, and that risks escalating tensions.
“It runs the potential of creating a flashpoint and creating more protests and road blockages” in the future, he said.
Monona Police Chief Walter Ostrenga similarly said it’s a balancing act between protecting free speech rights and protecting public safety. Bringing in a bus and arresting 70 protesters and taking them to the county jail risks further spreading the coronavirus, but protesters and police could get hit by a drunken driver or someone in a stolen car if busy routes are suddenly shut down.
“We can’t let them shut down the Beltline indefinitely,” he said. “For them to do that — it’s putting everybody at risk.”
With Wisconsin a battleground in November’s election, Trump and his surrogates are making multiple visits to the state, including a rally Trump held outdoors Oct. 17 at the Southern Wisconsin Regional Airport in Janesville that drew thousands, many of whom eschewed masks. He is due to hold another rally at Stein’s Aircraft Services at the Waukesha County Airport on Saturday.
Janesville and Rock County have not enacted their own COVID-19-related restrictions, according to the LRB, and while Trump’s Janesville rally violated state and local COVID-19 guidelines, it does not appear to have violated the state orders. Besides, Gov. Tony Evers’ state public gatherings order includes an exemption for political rallies.
The city and county of Waukesha also have not enacted their own COVID-19-related restrictions, according to the LRB.
Whatever practical concerns officials must consider when deciding whether to enforce public health orders at rallies and protests, there is likely little constitutional reason for not enforcing them, according to two legal experts.
“The First Amendment argument,” according to Howard Schweber, a UW-Madison professor of political science, is “specious.”
“Public health regulations do not present First Amendment issues so long as they are neutrally applied,” he said, meaning that as long as masks, for example, aren’t mandated for some types of public expression but not others, a mask mandate should be constitutionally sound.
If it’s determined that the restrictions are being applied in an unbiased way, the next question is whether they are too restrictive, given the circumstances, according to Donald Downs, a UW-Madison professor emeritus of political science and law school affiliate.
“But masks and social distancing requirements don’t seem to limit expression very much,” he said.