The arrest and trial of a retired librarian for expressing his views should chill us all. | Photo by Jim Brownlow

We know the slogan “Remember January 6th” but have we forgotten the gut punch it was that day to watch people assault barricades and rappel the walls of our Capitol, break windows and pour into our Capitol’s chambers? Remember watching representatives and senators in their suits, crawling behind those rows of gallery seats? We were stunned by the violence and havoc we were witnessing. 

Jim Brownlow remembers and on Jan. 6 of this year, at 7:15 in the morning, he wrote with red, white and blue chalk on the sidewalk in front of the Muskego Post Office, “Remember January 6th every November.” When you vote, he is saying, remember the violent mayhem you witnessed with your own eyes. 

Two weeks later, two police officers came to Brownlow’s 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 to answer  more questions in order to complete a report. Brownlow said no, he was busy. The officer said OK, he’d call the next week. On Feb. 4 a new officer called and Brownlow replied he’d already said all he had to say to the first officer.

Within an hour three police officers in two squad cars showed up at his house. 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 $1,000” 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 where he was handcuffed to a bench and 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, 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, immediately and before Brownlow could figure out 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 Nov. 7..

And here we are.

Who is Jim Brownlow? He’s us. A quiet guy retired from his career as a middle school librarian. Married to his wife who was a sixth 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 the Wisconsin Assembly four times from 2010-2016. (Wisconsin’s gerrymandering made it impossible for  Democrats to win in their area.) Brownlow is the kind of person who doesn’t dazzle but whenever you turn around he’s there, caring, helping, championing the privileges and responsibilities of citizenship. 

An assault on our constitutional rights

What are the issues here? The petty harassment of one guy in a small town or an assault on our  constitutional right to free speech? 

Brownlow says it’s the second. 

This is our First Amendment, 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. Brownlow has done research (I told you he was a librarian). This is what he has learned: 

The Muskego Municipal Code charge of disorderly conduct, adopted from Wisconsin Statute 947.01(1) 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: 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 and the citation must therefore be dismissed.

Brownlow is a thoughtful person. “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 and it washed off in a minute with a hose and broom.” 

“We need to be vigilant and say what’s on our mind peacefully but with determination.” 

Hordes of menacing people, many with weapons, stormed our Capitol and yet are now living free lives. Jim Brownlow chalked a thoughtful reminder on a public sidewalk and is, eight months later, still facing a threatening charge. There are wildly and dangerously different standards for freedom of speech here. 

On Nov. 7 Jim Brownlow goes to court. I will let you know what happens. 

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