Citations to newspaper hawkers set up First Amendment clash
Chris Dols almost got away with it. On May 28, he and several others
were selling the Socialist Worker newspaper in the 400 block of State
Street. Madison Police Officer Chanda Dolsen informed them that this
was not allowed. Dols says they agreed to leave, and she agreed not
to write any tickets.
But, being a socialist and young besides, Dols couldn't resist making
a smart-ass remark: "I asked her if she feels comfortable doing her
job, even if it's giving tickets to people engaged in
constitutionally protected activity."
At this, he says, Dolsen asked for his ID and wrote him a $298
citation for vending without a license. (An email to Dolsen relating
this account drew a reply from MPD Capt. Mary Schauf, who declined
comment "until the case is adjudicated.")
Dols, 26, is a member of the campus-based International Socialist
Organization, which has been selling the Socialist Worker in Madison
for decades, to raise money and awareness. The papers are offered for
$1 each at political events and to passersby in well-traveled places,
especially State Street.
But since April 2008, Madison police have issued four citations to
ISO members engaged in selling the Socialist Worker on State Street,
according to Andrea Farrell, a local attorney who is representing the members.
The first, to Noah Callagan, alleged a violation of the city
ordinance 10.25(1) against placing "articles on the sidewalk." It was
dismissed after the city failed to respond to a challenge brought by
Farrell on behalf of the Jeff Scott Olson Law Firm.
Last December, Callagan was cited again, under the same ordinance.
For tactical reasons, it was not challenged and Callagan had to pay a
Ticket number three was issued March 21 to ISO member Ben Ratliffe.
It was initially for selling alcohol, an apparent error, but later
changed to 10.25(1). Farrell last month filed a 25-page brief in
Municipal Court on her motion seeking dismissal.
The brief (PDF) argues that the ordinance was meant to regulate
storefronts and business owners. It says citing Ratliffe requires "an
absurd reading of the ordinance," like citing a street musician who
sets out a hat or a shopper who sets down a package. And it says the
city is on especially thin ice in going after people exercising First
Amendment rights. (The city could end up having to pay damages.)
The city's response brief is not due until Sept. 11. But Assistant
City Attorney Lara Mainella says the above citations were not for
selling papers but "for setting up a table on a public sidewalk
without a permit." And while Dols was cited for lacking a seller's
permit, Mainella says the "big picture issue" is still the presence
of a table.
"None of the cases," she says, "are about the newspapers or the
speech." (Mike Moran, vending coordinator for Street Pulse, which
also sells papers on State Street, says none of his vendors have been
Farrell, who is contesting Dols' citation (a conference is set for
next week), counters that obtaining a seller's permit entails
significant costs. When Dols tried doing so, he was told he would
need to procure a million dollars' worth of insurance. And Farrell
says this license seems not to cover selling papers.
"If the city is going to require a permit and then not issue a permit
to political speakers," says Farrell, "it's really saying you can't
speak on State Street."
Dols sees a larger pattern, which includes demonizing the homeless,
redoing Peace Park and regulating street musicians.
"It seems like there are political forces interested in changing the
character of State Street," he says. It's an effort he feels is sure
to backfire, given the election of Barack Obama and ongoing activism.
"The city's decision to create more barriers to speech comes just as
thousands of Madison students feel politically relevant for the first
time," Dols says. "The timing is terrible. The city should have tried
this with Bush in office, when we were still used to losing."