Kooyenga and Freedom of Speech

Few rights are as important as the First Amendment right to freedom of speech and expression. To protect our sacred First Amendment, we must not allow government officials, especially politicians, to censor the political speech of citizens simply because the government (or politician) deems the speech to be inappropriate.

In Wisconsin, we have a recent example of that very notion in action, and it provides an important lesson for all.

State Rep. Dale Kooyenga recently settled a lawsuit for $30,000 that was filed against Kooyenga by a then 80-year-old man after Kooyenga was captured on security camera footage removing the citizen’s sign from inside the Wisconsin State Capitol building in May 2017. The citizen had a permit that authorized the sign to be placed inside the Capitol.

While not naming President Donald Trump directly, the sign contained language that was highly critical of Trump, referring to him as a “confessed serial groper,” “corrupt” and “unethical,” among other things.

Although Kooyenga ultimately admitted he was wrong to remove the sign, he attempted to justify his actions in various ways. Kooyenga reportedly told the police he took the sign down as a joke. Kooyenga also said he removed the sign because he believed it was “inappropriate.” Then, in a head-scratching comment, Kooyenga told the media he thought the sign presented a “clear risk” because it was placed against a curved wall and the sign could have “conceal[ed] something.”

In fact, the surveillance video (released April 11) shows the sign was on an easel and appears it would not be difficult to see around. The surveillance video shows Kooyenga picking up the sign. Kooyenga reportedly said he saw nothing behind the sign, but took it down and to his office anyway because he thought the sign was uncivil. If Kooyenga thought the sign was a security risk, he could have, but did not, ask the capitol police to investigate.

It is far more believable that Kooyenga removed the sign because he was offended by the content critical of President Trump. While it was Kooyenga’s right to be offended by the sign, he had no right to abridge the First Amendment rights of another citizen by removing it without consent.

Some people believe taking down the sign was no big deal and that the $30,000 payment is excessive in light of the violation. For example, Milwaukee Journal Sentinel columnist Christian Schneider wrote a column titled “Dale Kooyenga owes Wisconsin Capitol protester an apology, and nothing more.” In his column, Schneider calls the settlement “ridiculous” because of what Schneider deems payment for the citizen’s “hurt feelings” and a “brief moment of discomfort.” Kooyenga is a Republican politician and Schneider points to hypocrisy by Democrats who he says have had “temper tantrum[s]” over political issues in the past.

While Schneider is correct that politicians are often hypocritical on both sides of the aisle, the settlement is not “ridiculous.”

Kooyenga not only agreed to the settlement, but more importantly, the lawsuit, broadly speaking, was about protecting the First Amendment rights of citizens to express themselves freely without fear of government interference; in this case, a politician literally removing a lawful sign of an 80-year-old man who expressed a view harshly critical of the president.

Kooyenga initially defended the idea of the taxpayers footing the $30,000 bill to pay the settlement. However, after much political pressure and the release of the surveillance video, Kooyenga indicated he would get the financial “assistance of family and friends” to reimburse taxpayers for the settlement payment.

Many Americans generally — liberal, conservative or otherwise — understand that the answer to unpopular, even disgusting speech, is more speech and more freedom, not less.

Before the United States was formed, the British legal system banned speech that the king deemed to be unacceptable. Our Founders’ rejection of suppression of dissent became the main impetus for the creation of the First Amendment in our then newly established country.

To allow for our First Amendment rights to be violated diminishes the freedoms for which our country stands and endangers the right to express other unpopular views.

The situation involving Kooyenga provides a valuable reminder about the importance of the First Amendment, and the heavy price that must be paid when the government abridges that important right.

Casey Hoff is a criminal defense attorney based in Sheboygan.