Where You Can Park Your Politics in Wauwatosa
Political expression is prohibited in Hart Park, except for where it's not, and except if somebody decides maybe it isn't.
Sometimes the news arrives in strange packages. In the case of a behind-the-scenes controversy delivered to me last week, it was as full of surprises as a set of Russian nesting dolls.
The subject, wouldn't you know, was politics.
I was treated to a real-time exercise in civic sausage-making when I was blind-copied on a lengthy exchange of e-mails between a number of public officials, some elected, some appointed.
Because I was, in effect, eavesdropping, I will leave out most of the names involved. But I think the subject is of public interest and the questions ought to be discussed in the open.
It began with a challenge from an alderperson to the city attorney, Alan Kesner (I don't mind naming Kesner because he agreed to discuss it with me and he doesn't make policy, he only advises on it and interprets it).
What business, the alder wanted to know, did the city have in issuing a permit to Onward Wisconsin to hold its Celebrate Walker rally in Hart Park on Jan. 21 when park policy prohibits political events?
This was news to me. Since when, and why, I thought, does Wauwatosa prohibit political speech in its premier public space?
And it's true – sort of. Political events are not allowed "except by special consent."
We'll get back to that in a minute.
Kesner's initial reply provided a new twist. By park rules, political events are not permitted in the (except by that special consent), but they are allowed at the Rotary Performance Pavilion and surrounding amphitheater – because Tosa Tonight has a contract to schedule and manage events there and it has no such prohibition of political events.
Another official weighed in to say that while that was true, it had been a mistake to issue Onward Wisconsin a permit that extended beyond the amphitheater all the way to North 72nd Street.
This official suggested that the city would issue one more permit "to the other side" upon request, just to be fair, and then would firmly return to its position of "neutrality" in the parks.
At about this point, I called Kesner and asked what in the world was going on.
Kesner said he had been unaware of the extension of the permit to 72nd Street, and had he been aware of it he would have recommended denial of that extension. He also said that the public official who was offering a freebie to the political left did not have the authority to do so.
What I really wanted to know was: Who does have the authority to allow political events by their "special consent"?
"I frankly don't know," Kesner said, "because the question has never come up before."
Within a quarter of an hour, he had done his research and rendered an opinion.
"For the time being," he said, "it appears that special consent rests with the Parks Board, although the Common Council could also give it."
Yet another revelation. The Board of Parks and Forestry Commissioners can grant special consent to allow a political event even though its authority is mainly advisory.
Kesner rendered his opinion in a final e-mail message to all concerned and concluded by asking that no more responses be forthcoming because the online free-for-all was getting to a point where it risked breaking open meetings laws.
As I said, Kesner is blameless in all this. He's just telling it like it is.
One wonders, though, what the creators of that rule in some bygone day were thinking – or drinking.
For starters: A rule prohibiting political expression in a public park seems to me to contradict two of the four provisions of the First Amendment; i.e., the rights to speech and to assembly.
And the "special consent" clause seems to open up this already constitutionally questionable decree to invitations of abuse of powers by preferential treatment.
(One might even ask, since the city sees fit to do away with half the First Amendment, why does it not go whole hog and ban religious events and petitioning in the park? Have we not had some issues lately around the right to petition?)
Then there is the question of why, having in place a policy - questionable as it may be - the city would then relinquish its authority to a private entity for part of the park only?
Tosa Tonight is a fine organization, and it is a pleasure and privilege to have it provide the city with entertainment in an enchanting atmosphere. And, by the way, good for Tosa Tonight for not banning free speech at its venue, even though it could.
But the pavilion and amphitheater are still public property. Why does the city in turn abrogate responsibility for a matter as important as free speech and assembly in that public space alone? And what if Tosa Tonight – and I'm not saying it would – decided to allow only political speech with which "it" agreed?
I have been conducting an informal poll the past few days, posing all this to various people. The cocked eyebrows and expressions of "Wha...?" speak for themselves.
Nobody understands why Wauwatosa, of all places, should proscribe the First Amendment. Nobody understands why that proscription, however crazy, should be lifted for part of the park only under private authority. Nobody understands why some appointed officials on a purely advisory board should have the power to overrule the kooky policy and give special consent to political speech of their choice.
I get this scene playing out in my mind. The Minutemen are marshaling at Lexington green to meet the Redcoats. A fat burgher waddles out and says, "Ye are nay permitted hereupon the practice of Politicks without mine own special consent, and I give it not. Now, begone!"
Where would we be without free speech and assembly in public places? On Lexington green, on Boston Common, on the National Mall in Washington, on Capitol Square in Madison?
The answer is, we would not be as we are. America would be something else, and something much less.
Wauwatosa, in claiming political neutrality by banning political speech – except for just those to whom someone desires to give it – both neuters the concept of free speech and then in turn politicizes it.
Both strike me as bad ideas.