By Steve Key
Common sense prevailed on the first day of the Indiana General Assembly.
Gov. Mitch Daniels announced the scrapping of a plan to limit the number of daily visitors allowed in the Indiana Statehouse on the eve of what is sure to be a contentious legislative session.
The policy that would have allowed only 1,500 visitors a day – a number that might easily be reached by workers protesting the proposed right-to-work legislation – raised First Amendment concerns.
HSPA expressed concern to the governor’s office and Republican leadership in both the House and Senate.
The primary fear was that Hoosiers who are moved to drive to Indianapolis to testify before an afternoon House or Senate committee – perhaps because of something they read in the local newspaper or were told by a neighbor – would be shut out because all the visitor slots were filled by those who arrived in the morning.
Lawmakers discussed making a provision to admit people who were able to get on a list ahead of time, regardless of how many, but that would not have accounted for last-minute visitors.
The large protests by union supporters during the 2011 legislative session sparked the visitor-access policy.
And everyone expects the protests to be as intense, if not more so, this session because Republicans have expressed determination to pass right-to-work legislation.
The proposed policy’s motivating factor, whether public safety or Republican desire to rein in protests, was irrelevant. Hoosiers’ right to interact with state government was at stake.
We’re talking about the core of democracy, the First Amendment – freedom of speech, the right to peaceably assemble, and right to petition government for a redress of grievances.
Beyond the limited number of visitor slots, a code of conduct that accompanied the policy also raised other First Amendment questions, including:
- A noise provision that could trigger a person’s removal from the Statehouse.
- A provision prohibiting abusive, profane or threatening language.
- A provision limiting the size of signs.
A thousand protesters are going to be noisy. Who will determine if the noise level is disruptive and who would be expelled from the Statehouse?
Who will decide if a particular comment is abusive, profane or threatening?
And how is sign size a public-safety issue?
The U.S. Supreme Court has voiced its opinion on the “national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open” in its New York Times Co. v. Sulllivan decision on libel standards in 1964.
The enforcement of the proposed conduct code may have set the stage for a lawsuit.
The powers that be in the Statehouse needed to decide what will preserve public safety and how can it be accomplished without infringing on the First Amendment.
I wonder whether anyone in the Statehouse, knowing protests will return this session, reached out to union leadership to determine how safety and freedom to assemble could best co-exist.
Could voluntary guidelines have been agreed upon that would have ensured unions the opportunity to be heard without unintentionally locking other voices out of the Statehouse?
Fortunately Daniels, House Speaker Brian Bosma, R-Indianapolis, and Senate President Pro Tem David Long, R-Fort Wayne, listened to the concerns raised by many and dropped the restrictions on access to the Statehouse.
Steve Key is executive director and general counsel for HSPA.