EDITORIAL: Reaffirm free speech in Port Washington

The City of Port Washington has hired a special prosecutor to prosecute the woman police carried out of a Common Council meeting in December.

If taxpayers have to spend more money on this unfortunate incident, it would be better spent on retaining a civil rights consultant to review with police and city officials the limits that the First Amendment applies to police interactions with citizens exercising their free speech right.

That right is at the heart of this case, and it has already put the city in a bad light.

The forcible removal of Christine Le Jeune from City Hall was witnessed by a large audience in person at the crowded meeting and in widely viewed videos, including the official Common Council video recording of the meeting.

Some of those witnesses think Le Jeune was a victim of a police overreaction that appeared to punish her for publicly criticizing city officials for their approval of the controversial data centers being built in Port Washington.

The city exacerbated that impression by ticketing Le Jeune and two other women with violating the city’s disorderly conduct ordinance.

The charges should be dropped. Persisting with the case will only confirm views that this is a vindictive prosecution of citizens for conduct that is protected by the First Amendment.

What people saw and heard at the Dec. 2 Common Council meeting was Le Jeune, who is a Port Washington resident and founder of the anti-data-center organization Great Lakes Neighbors United, standing at the lectern provided for public comments reading a written speech criticizing city officials for their data center decisions.

She finished to enthusiastic applause. As she was walking back to her chair she repeated the word “recall” three times loud enough to be heard over the clapping crowd, a reference to her organization’s intent to mount a drive to recall the mayor and council members.

With no interruption, the next speaker began her presentation. Le Jeune sat quietly and listened to the start of a speech by Kathleen Cady Schilling, executive director of Ozaukee Economic Development, that strongly supported the data center development.

The meeting was proceeding calmly without any disturbance until Police Chief Kevin Hingiss left his seat behind the lectern, approached Le Jeune and asked her to leave the building. Le Jeune refused, but Hingess’ comment was not a request. It was an order to leave, and he and another police officer began to enforce it by removing the woman from her chair.

Le Jeune resisted passively by going limp. What followed was a disturbing scene that in viral video has portrayed Port Washington as a place where the rough repression of free speech is tolerated.

Le Jeune’s arms were pulled around her back and handcuffs placed on wrists. A squad of police that had by then increased to four officers carried her out of City Hall an put her into a police patrol car. Two women who had attempted to hold on to Le Jeune as she was carried away were arrested and also charged with disorderly conduct.

Disorderly conduct charges against protestors are not uncommon in the U.S., and cases have contributed to a substantial body of legal principle concerning the conflict between such charges and protected speech. One general finding has been that failing to strictly follow rules of decorum does not constitute violating the law.

After a meeting in which some data center opponents became boisterous, the Port Washington  Common Council put behavior rules in place for members of the public attending the Dec. 2 meeting. It was the right thing to do—to keep the meeting peaceful and to ensure that all views could be heard without interference. But it is a stretch too far to conclude that repeating a single word three times causing no interruption of the proceedings was a rules violation that warranted physical removal from the meeting and a misdemeanor charge.

The accepted legal standard is that speech criticizing government is protected unless it incites lawless action, is a threat or “fighting words.” None of those exceptions to free speech protection describe anything Le Jeune said.

Port Washington’s ordinance defines disorderly conduct as “violent, abusive, indecent, profane” conduct or otherwise disruptive conduct that “tends to provoke or cause an immediate disturbance of public order.” Courts have held that police response cannot be that disturbance, which was clearly the case at the Dec. 2 meeting.

If anyone thought bringing disorderly conduct charges would somehow justify the heavy-handed police action, it was a mistake that will further damage to the city’s image and reputation if the charges are pursued.

A special prosecutor was hired because the appointed city attorney, who answers to the Common Council, witnessed the arrests and therefore has a conflict of interest.

The special prosecutor can drop the charges. Doing that would be an act of justice for three women who went to a meeting to peacefully express their disapproval of a data center and left in handcuffs and would stand as a reaffirmation that the First Amendment applies to speech in Port Washington.