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Christmas tree kerfuffle tests rules on free expression at Capitol
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Christmas tree kerfuffle tests rules on free expression at Capitol

Evergreen squabble continues at State Capito

State Reps. Shae Sortwell and Paul Tittl with the second Christmas tree they set up Tuesday.

A pair of Republican lawmakers’ decision to put up a Christmas tree is reviving the debate over what forms of free speech are allowed in the state Capitol and how far leaders of either political party can go to limit them.

Reps. Paul Tittl, of Manitowoc, and Shae Sortwell, of Two Rivers, have twice put up an artificial tree in the Capitol rotunda where, in non-pandemic years, a towering live Christmas tree has for decades been installed at around this time of year.

And overnight Tuesday was the second time it’s been removed by Capitol Police, with Gov. Tony Evers’ Department of Administration contending simultaneously that the tree can’t remain because it doesn’t have a permit, and that the department is not the permitting agency for that section of the Capitol.

The ground floor of the rotunda, where the live tree normally goes, is overseen by the State Capitol and Executive Residence Board, or SCERB. That body has no formal application or criteria for approving displays and has no plans to meet again this year, said Rep. Amy Loudenbeck, R-Clinton, who chairs the board.

Tittl and Sortwell’s tree is far from the first expression of free speech to ruffle feathers at the Capitol. Madison’s Freedom From Religion Foundation first began putting up its secular display in 1996, in accordance with court rulings that government must take a viewpoint-neutral approach to allowing displays in publicly owned spaces.

In 2013, hundreds of people with the Solidarity Singlalong protest movement against then-Gov. Scott Walker were arrested and cited under a state emergency rule that was later declared unconstitutional.

Those past disputes shed only limited light on the current imbroglio, however. Aside from the rotunda tree, holiday displays — secular or not — have been limited to the first floor of the Capitol, a floor above the ground floor. DOA has permitting authority over that first floor, and has already approved at least one Christmas tree there for Loudenbeck and has signaled to Tittl and Sortwell that it would likely approve another permit for their own tree there.

And while it was on the ground floor, the Solidarity Singalong concerned behavior — the singing of protest songs — and not the display of a physical object, and thus fell under a different set of rules governing free expression at the Capitol.

UW-Madison political science professor Howard Schweber said rules limiting installations like the representatives’ Christmas tree in public spaces are constitutional if content-neutral, allow sufficient alternative avenues for expression and serve a legitimate purpose unrelated to suppressing expression.

In the absence of any explicit criteria or permitting process for ground floor displays, though, DOA is relying on a section of state administrative code as authority for taking the trees down. It bars decorations and displays from “any state office building or facility without the express written authority of the department.”

Given the protests against Walker’s anti-union legislation in 2011 — which included a 24/7 “occupation” of the Capitol that lasted 16 days — Sortwell said he understands the need for restrictions on free speech on public property.

But he said it’s not as if putting a Christmas tree up in the rotunda is something new.

“They (DOA) basically say they don’t have the legal authority to do this,” Sortwell said of permitting his tree. But all it would take to allow the tree to remain is “one simple word from the governor.”

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The DOA disagrees. In a Dec. 2 email to Sortwell and Tittl, DOA Assistant Deputy Secretary Olivia Hwang said the “governor cannot override the statutory authority the legislature has vested in SCERB.”

The agency also argues that the usual live tree does not require a permit because the DOA owns the Capitol. It also has been turning down all display permits because the building is closed to the public due to the COVID-19 pandemic, although lawmakers, the governor and their staff can still work out of the building.

“DOA is just doing their job,” Loudenbeck said, adding her board exists to oversee more substantial or thoroughly planned displays, such as the Bucky on Parade installations of fiberglass Bucky Badgers around Madison in 2018.

“SCERB is for something a little bit more extraordinary,” she said.

Sortwell countered that the Capitol is owned by the people of Wisconsin, not DOA, and that it’s still open to the public and lawmakers when legislative committees are meeting.

Schweber said that the decision not to require a permit for the live tree in the past could complicate efforts to require one now for the Tittl-Sortwell tree.

Still, “failure to enforce a rule in the past does not create a legal entitlement,” he said. “It may create a false understanding that would be a good defense against having to pay a fine,” if not for preventing the removal of the tree.

Sortwell on Wednesday made clear that he and Tittl weren’t giving up the fight, although he declined to outline their next move. He said Capitol Police have threatened them with $200 daily fines if they continue to put up the tree.

Attorney Jeff Scott Olson, who won the civil suit that overturned the rule the Solidarity Singers were cited under, said the dispute over this year’s Capitol tree is “a fascinating illustration of the idea that restrictions on free speech cut both ways.”

Sometimes it’s liberals testing the limits, he said, and sometimes it’s conservatives.

Chris Rickert's favorite stories of his least favorite year (2020)

From the pandemic to crimes real and not-so-real, there was no shortage of news in 2020 — most of it bad. Here's hoping for a 2021 that requires just a little bit less resilience.

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