WI Supreme Court Upholds Restraining Order to First Amendment Challenge

Wisconsin case law summary by Attorney Richard Clem: harassment, First Amendment.

Board of Regents - UW System v. Jeffrey S. Decker. Harassment, First Amendment

Jeffrey S. Decker was unhappy with the University of Wisconsin's student fee policy, so in 2010, he decided to have a meeting with Dr. Bernie Patterson, the Chancellor of the University of Wisconsin—Stevens Point. The meeting didn't go well, the police were called, and Decker ultimately got suspended from the University. Under University Rules, suspended students are not allowed on campus without the written permission of the chief administrator of that campus. The next January, Decker wanted to attend a basketball game at UW-Oshkosh, so he requested permission, which was denied. Undaunted, he went to the game anyway, where he handed out literature. Later, he attended a meeting at the UW-Fox Valley campus, which resulted in the police being called again.

He next showed up at a meeting of the Board of Regents in Madison, resulting in the police being called once again. He showed up again at another meeting in Fox Valley, once again resulting in police involvement.

Finally, the Board of Regents went to court in Dane County Circuit Court to get a harassment restraining order under Wis. Stat. 813.125. When the Campus Chief of Police attempted to serve the papers, Decker immediately tried to buy a gun.

Dane County Circuit Judge John Markson heard all of the evidence, and issued the restraining order. Decker appealed, and on January 24, 2014, the Wisconsin Court of Appeals reversed. The statute requires proof of two elements. First, there must be harassment, which the Court of Appeals assumed had been proven. But the statute also requires that the conduct "served no legitimate purpose." The Court of Appeals reasoned that the statute as applied infringed on Decker's ability to protest the fee issues and other grievances, and was thus protected under the First Amendment. The Board of Regents then asked the Wisconsin Supreme Court ot hear the case.

The Supreme Court reversed the Court of Appeals and reinstated the restraining order. The high court first held that the statute applies to institutions and not just individuals, and it was therefore proper to prosecute the case in the name of the University. It then turned to the question of whether Decker had a "legitimate purpose" under the statute.

The high court first looked at Judge Markson's factual findings and noted that he had found that Decker's intent had been to disrupt the meetings. The high court agreed that Decker's blatant disregard for the rights of officials and students reasonably pointed toward an intent to harass.

Even though the court agreed that First Amendment concerns were implicated, but that a reasonable "time, place, and manner" restriction is permissible. On the facts of this case, the Supreme Court agreed with the finding of no reasonable purpose.

The Supreme Court did, however, send the case back to the Circuit Court to more carefully lay out the terms of the order.

No. 2011AP2902, 2014 WI 68 (Wis. July 16. 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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