Our Constitution, Petty Harassment, and One Guy

At 7:15 on the snowy morning of January 6th of this year, Jim Brownlow, retired middle school librarian, wrote with red, white and blue chalk on the sidewalk in front of the Muskego Post office. 

“Remember January 6^th every November.” 

You remember that afternoon that stunned us all; we watched our televisions as people assaulted the barricades and rappelled the walls of our Capitol, as they broke windows to pour in and take over chambers of congress. Even now, remembering, my breath catches and my heart pounds. We could barely believe the violence and mayhem we were witnessing. 

That’s what Jim Brownlow meant. Remember that January 6^th when you vote.

Two weeks later two police officers came to his door because the property manager of the post office building complained that someone had “vandalized” the sidewalk and he had to hire a cleaning service to clean it up.

When the officers asked Brownlow if he had chalked the sidewalk, he answered only that he had “exercised his Constitutionally protected free speech.”. He also suggested that chalk can be washed off with soapy water and a broom. The officers left. 

Two weeks later a different officer called to ask Brownlow to come to the police station because they had more questions in order to complete a report. 

Brownlow said no, he was busy. The officer said okay, he’d call the next week. On Feb. 4 a new officer called. Brownlow replied he’d already said all he had to say to the first officer.

Within that hour three police officers in two squad cars showed up. Brownlow and his wife invited them in because it was cold outside and normal people in Wisconsin are hospitable. One of the officers said Brownlow was charged with "Criminal Damage to Property Under $1000” so he was now under arrest and had to go to the station to be processed. (Miranda was not mentioned.) Brownlow said he wouldn’t go without an attorney although, also, he wouldn’t resist because he’s 76-years-old and he didn’t want to break anything.

The officers emptied his pockets, patted him down, double handcuffed him, escorted him out his front door to the waiting squad. They drove him to the police station (which shares a building with Muskego’s city hall) where he was handcuffed to a bench while being questioned. His mug shot was taken and he was fingerprinted. They then handed him a summons to appear in municipal court on March 12. 

On March 12 Brownlow said he would not plead guilty and pay a $900 fine (!) so he was given a trial date in August. He tried to enter a plea to dismiss but was told one can’t do that until the trial date.

Six months later that moment finally arrived. Before Brownlow could submit his motion to dismiss, the Muskego prosecutor told the judge the criminal damage charge was dropped because it couldn’t be proven in court. Then, before Brownlow could process what was happening, they turned around and charged him with disorderly conduct. Same moment, same courtroom, same incident, same judge and prosecutor.

At that point he was given a new court date of November 7.^.

And here we are.

Who is Jim Brownlow? He’s us. A quiet guy, a retired librarian from Bay Lane Middle School. Married to his wife who was a 6^th grade teacher when they met. Together they raised their family and were active in their community. Brownlow ran and lost as the Democratic candidate for state assembly four times from 2000-2016. (Wisconsin’s infamous gerrymandering stopped Dems winning in their area.) Brownlow is the kind of person who doesn’t dazzle, but when you turn around, he’s there caring, helping, championing the privileges and responsibilities of citizenship. 

…

What’s the issues here? The petty harassment of one guy in a small town? Or an assault on American Constitution’s Right to Free Speech? 

Brownlow says it’s the second. 

FYI this is our 1st Amendment that was adopted in 1791. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

So when we are told the First Amendment is under assault, here it is. 

How do our Constitutional Rights work in the here and now? Over years and decades, people are charged with breaking laws. They go to local court, judges and/or juries decide if they are guilty or innocent. If those decisions don’t sit right, the charged person can request a new state-level trial.

Those decisions are recorded to become part of the state-level law that defines and corrals how charges can be interpreted going forward.

Brownlow has done research (I told you he was a librarian…) and this is what he has learned. 

The charge of disorderly conduct under Muskego Municipal Code, adopted from Wisconsin Statute § 947.01(1) which says it’s unlawful to “engage in violent, abusive, indecent, profane, boisterous, unreasonably loud conduct or in any other disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.”

Wisconsin courts have repeatedly emphasized that:

1. The statute must be applied narrowly to conduct that actually tends to cause or provoke a disturbance. Brownlow replies: Sidewalk chalking is inherently nonviolent, non-abusive, and non-threatening. It does not fall into any of the categories listed in the statute.

2. Disorderly conduct cannot be stretched to cover innocuous or constitutionally protected activity. Brownlow replies: Drawing with washable chalk is a common childhood and expressive activity that does not reasonably cause alarm, fear, or disruption.

3. The statute requires conduct that is, in context, of a nature to cause real disturbance or disruption. Brownlow replies: Previous Wisconsin cases caution against disorderly conduct charges that criminalize mere expression. Chalking on a sidewalk, where it does not obstruct or endanger others, is expressive conduct entitled to constitutional protection.

4. Peaceful expressive activity is not disorderly conduct. Brownlow replies: Extending ‘disorderly conduct’ to cover chalk risks renders the statute unconstitutionally overbroad, as it would criminalize ordinary, harmless activities.

Brownlow’s CONCLUSION: Because chalking is nonviolent, harmless, and not of a nature to provoke disturbance, it cannot constitute disorderly conduct under Wis. Stat. § 947.01 or the Muskego Municipal Code. The City cannot establish a prima facie case, and the citation must therefore be dismissed.

…

“The people carrying out these charges against me are ordinary Americans who do not see this as what it truly is – an assault on America’s Constitutional freedom of expression. There was no damage here. I wrote on my sidewalk at home using the same chalk. It washed off in a minute with a hose and broom. 

“We must be vigilant. These are not easy times and we need to continue to say what’s on our mind peacefully but with determination.” 

I asked Brownlow what he would have us do. He’s spent more than a hundred hours so far researching free speech rights and municipal codes. He’s talked with four attorneys; each advised he’s doing well without them. If they take this case, their research hours and time in court will cost him thousands. They suggested that if the case isn’t dropped in November, he could begin a GoFundMe. Or perhaps a civil liberties organization would take his case pro bono.

On November 7^th Jim Brownlow goes back to court. I will let you know what happens as soon as I know it. 

In the meantime - if you have chalk and a sidewalk - maybe it’s time to exercise YOUR Constitutional right to free speech.