By Rebecca Kemble on July 10, 2013

Federal Judge William Conley dealt two blows to the Walker regime yesterday with the release of two orders. The judge issued a preliminary injunction prohibiting the Wisconsin Department of Administration from enforcing a portion of the Capitol Access Policy that violates First Amendment free speech protections, and he also issued a one-week restraining order on that portion of Act 37, the mandatory ultrasound law, that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic.

Planned Parenthood filed its complaint in the U.S. District Court this past Friday before the ink was dry on Walker's signature on the bill. The complaint says that Act 37 unconstitutionally restricts the availability of abortions in the state, violates due process, and unconstitutionally treats doctors who perform abortions differently from those who perform other procedures.

In his decision, Judge Conley reasoned, "There will almost certainly be irreparable harm to those women who will be foreclosed from having an abortion in the next week either because of the undue burden of travel or the late stage of pregnancy, as well as facing increasing health risks caused by delay."

A preliminary injunction hearing in the case is scheduled for July 17.

Commenting on the order, Larry DuPuis, legal director of the Wisconsin ACLU, said, "We're thankful that the judge has put the brakes on a dangerous law that was rammed through the Legislature with no thought to the health and well-being of Wisconsin women and families."

DuPuis had another reason to celebrate yesterday. The Wisconsin ACLU's case against the Walker Administration's permitting rules in the Capitol building chalked up a victory with Judge Conley ruling portions of the scheme unconstitutional.

Artistic rendition of Lazar's comment
Artistic rendition of Lazar's comment. Photo by Rebecca Kemble.

Plaintiff Michael Kissick, who argued that the rules violated his free speech rights in a traditional public forum said, "It's a victory because it is saying that the Capitol Police and the Department of Administration have been doing some things unconstitutionally."

Larry Dupuis called the ruling "a huge victory for free speech" adding, "The court recognized the Capitol's unique and historic role as a forum for free speech and public gatherings."

The order does not enjoin the entire permitting process. It abolishes the distinction made in the rules between a rally promoting a cause, and any other type of gathering, performance, ceremony or presentation in the building, and it raises the limit on how many people may be gathered before the permit requirement kicks in from a group of 4 to a group of 20 people.

During the preliminary injunction hearing last spring, Judge Conley struggled to wrap his mind around the convoluted rules, finally asking Assistant Attorney General Maria Lazar, "Why do you even have a definition of a rally? What's the point?" Lazar famously answered, "We're giving them more rights and they're still complaining!"

Conley came down with a firm decision abolishing the distinction between rallies and other types of events based on the fact that Capitol Police officers would have to make a content-based decision on the type of speech expressed.

In a footnote to the decision he wrote, "Consider three hypotheticals. (1) On the first day of every month, four nuns kneel for an hour of silent prayer in the Capitol rotunda; (2) Ten National Rifle Association members meet at an agreed upon time in the Capitol rotunda after visiting their legislators, to discuss next steps in defense of the Second Amendment to the Constitution; (3) Adam dreams up a romantic civil union proposal for his boyfriend Steve: as they pass through Steve's favorite spot, the Capitol rotunda, Adam and his friends bust into an a capella version of 'Only You.' All three of these groups could be cited for conducting an unpermitted 'event.'"

Despite this ruling, a public hearing on the rules is scheduled for 2:30 pm this Friday in the St. Croix Room at the Department of Administration building, 101 E. Wilson St., Madison. Written comments on the rules will be accepted through July 15 and can be submitted to Donna.Sorenson@Wisconsin.gov . Click here to see the rules.

A trial for a permanent injunction on the rules is set to begin on January 13, 2014.

In a recent interview with the Milwaukee Journal Sentinel, Attorney Lester Pines who represents Planned Parenthood in its case against Act 37, held out some hope for free speech and women's health advocates. "There is one place left in the governmental process where facts still matter -- that is the courts," Pines says. "You don't get to come in and make stuff up."

Judge Conley seems to agree.

Rebecca Kemble reports for The Progressive magazine and website. She also participates when she can in the Solidarity Sing Along.

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By Wendell Berry

Manifesto: The Mad Farmer Liberation Front

Love the quick profit, the annual raise,
vacation with pay. Want more 
of everything ready made. Be afraid 
to know your neighbors and to die.
And you will have a window in your head.
Not even your future will be a mystery 
any more. Your mind will be punched in a card 
and shut away in a little drawer.
When they want you to buy something 
they will call you. When they want you
to die for profit they will let you know. 
So, friends, every day do something
that won’t compute. Love the Lord. 
Love the world. Work for nothing. 
Take all that you have and be poor.
Love someone who does not deserve it. 
Denounce the government and embrace 
the flag. Hope to live in that free 
republic for which it stands. 
Give your approval to all you cannot
understand. Praise ignorance, for what man 
has not encountered he has not destroyed.
Ask the questions that have no answers. 
Invest in the millennium. Plant sequoias.
Say that your main crop is the forest
that you did not plant,
that you will not live to harvest.


Say that the leaves are harvested 
when they have rotted into the mold.
Call that profit. Prophesy such returns.
Put your faith in the two inches of humus 
that will build under the trees
every thousand years.
Listen to carrion—put your ear
close, and hear the faint chattering
of the songs that are to come. 
Expect the end of the world. Laugh. 
Laughter is immeasurable. Be joyful
though you have considered all the facts. 
So long as women do not go cheap 
for power, please women more than men.
Ask yourself: Will this satisfy 
a woman satisfied to bear a child?
Will this disturb the sleep 
of a woman near to giving birth? 
Go with your love to the fields.
Lie easy in the shade. Rest your head 
in her lap. Swear allegiance 
to what is nighest your thoughts.
As soon as the generals and the politicos 
can predict the motions of your mind, 
lose it. Leave it as a sign 
to mark the false trail, the way 
you didn’t go. Be like the fox 
who makes more tracks than necessary, 
some in the wrong direction.
Practice resurrection.

Wendell Berry is a poet, farmer, and environmentalist in Kentucky. This poem, first published in 1973, is reprinted by permission of the author and appears in his “New Collected Poems” (Counterpoint).


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