Department of Justice Declares Constitution Out of Bounds

Citation and Constitution

A citation issued to a person for holding a sign with text from the Constitution in the rotunda sitting on the Constitution which is also located in the rotunda. Photo by Rebecca Kemble

One hundred and twelve citations have been issued in the Capitol Crackdown. While citations for holding signs (Admin Code 2.07(2)) and banners (Admin Code 2.08) are now being dismissed, citations for not having a permit (Admin Code 2.14(2)(v)) are going forward – to trial.

Jason Huberty has jury trials set for January 23rd, and February 5th. Assistant Attorney General Jeffrey Gabrysiak introduced a Motion in Limine for Huberty’s February trial. The full text can be found here Motion in Limine 12 FO 2842.


The State of Wisconsin, by its attorney, hereby moves the Court for the following pretrial orders prior to the trial in the above case:

1. Constitutional Challenge: An order prohibiting the defendant from arguing to a jury that his or her conduct constitutes protected First Amendment speech. The Department of Administration (“DOA”) has the authority  to impose reasonable time, place, and manner restrictions on activities within the Capitol as long as they are content neutral. The defendant has the obligation to provide proper notice when alleging the unconstitutionality of a statute or administrative code.

Whether DOA’s permit requirements and other rules unconstitutionality limits the free speech rights of those intentionally do not apply for a permit is a legal question appropriately addressed by the Court, not a jury.

In essence, AAG Gabrysiak, Attorney General J.B. Van Hollen, and the Department of Justice are arguing that a constitutional challenge should not be allowed because the rule is not unconstitutional.

That’s analogous to not allowing Huberty to argue that he is innocent because the prosecution says that he is guilty. The DOJ is asking the court to decide in advance the very thing that is at issue.

AAG Gabrysiak further asks that the judge instruct the jury to ignore everything other than whether or not the defendant broke a law that the state alone has the power to interpret.

If the DOJ says Huberty is guilty, he is guilty, and if the jury disagrees, the judge should override them.

WI Attorney General JB Van Hollen. Source: Leslie Amsterdam

WI Attorney General JB Van Hollen. Source: Leslie Amsterdam

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2 Comments on “Department of Justice Declares Constitution Out of Bounds”

  1. Bea December 12, 2012 at 11:31 am #

    Paging George Orwell, again.

  2. Julie Gordon December 13, 2012 at 11:13 am #

    They certainly are spending quite a bit of taxpayer dollars on this unnecessary, and seemingly targeted persecution of citizens who dare to be unhappy with our present administration..

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