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Tuesday, September 22, 2009

Courts - "Judicial Campaign Speech Case May Be Destined for Supreme Court: Wisconsin justice faces sanctions for ad that may have gone too far"

Marcia Coyle reports today in The National Law Journal - some quotes from the lengthy story:

The challenger's ad in the 2008 race for a judgeship on the Wisconsin Supreme Court delivered the classic one-two punch:

Side-by-side, black-and-white head shots of two black men -- one, the first African-American to sit on the state high court; the other, a twice-convicted rapist. With eerie music in the background and the head shots fading in and out, the television narrator said, "Louis Butler worked to put criminals on the street. Like Reuben Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child."

The ad's sponsor, Michael Gableman, unseated Butler in the election. But now, more than a year later, he could lose his seat because of that ad.

Was the ad true or false? Did the First Amendment protect it?

A state court panel recently heard arguments on those questions from Gableman's lawyers and the Wisconsin Judicial Commission, which has charged the justice with lying and violating the so-called misrepresentations clause in the state's judicial code of ethics.

Many state ethics codes and laws have such clauses, which restrict false and misleading statements about an opponent's background and qualifications. As state judicial elections become nastier, more expensive and more important to special interest groups, complaints regarding alleged misrepresentations are on the rise, according to a number of election scholars and litigators. State courts, often faced with resolving such complaints, struggle to define when a candidate has crossed the line between protected and unprotected speech in campaign ads and literature.

The Gableman case is being watched closely for where the Wisconsin Supreme Court ultimately will draw the line.

And in the shadows of the tug-of-war over the ad's truthfulness is a potential U.S. Supreme Court challenge if Gableman loses -- a challenge raising the question of just how different judicial elections are or should be from other elections.

"There's ongoing discomfort with judicial elections, so there's a desire to make them better elections, less tainted by self-interest," said Richard Briffault of Columbia Law School. "But there's another view that, if you're going to have a judicial election, it should be run like any election -- open, freewheeling. Courts are trying to work out this tension."

From later in the story:
Gableman's counsel, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., said the commission has admitted that three of the four sentences in the ad are true. The only one contested, he said, is that Butler worked to put criminals on the street.

"Certainly a criminal defense lawyer may not like to be talked about in that way, but that's the end result when they are successful," he said.

Because there is no statement of fact regarding Butler that is "objectively false," Gableman cannot be punished under the rule, argued Bopp. Neither the state rule nor the First Amendment, he added, "allows the government to punish political speech on the ground that it contains an allegedly false implication."

Posted by Marcia Oddi on September 22, 2009 10:41 AM
Posted to Courts in general