Right to Lie?
"Congress shall make no law....abridging the freedom of speech, or of the press,.."
First Amendment to the US Constitution
"..Gableman's lawyers said a state Judicial Conduct Code rule that prohibits judicial candidates from 'knowingly making false or misleading claims or misrepresenting their opponent' illegally infringes on the Justice's First Amendment right of free speech."
Milwaukee Journal Sentinel, Nov. 20, 2008, page 3B
Justice Michael Gableman, who was elected to the Wisconsin Supreme Court in April, 2007, by defeating then Justice Louis Butler, is facing a complaint filed with the State Judicial Commission over a TV ad broadcast during that campaign. The ad said that Butler (then a public defender) "found a loophole....(his client) went on to molest another child." Actually, the State Supreme Court overruled the verdict Butler obtained, and the client remained in prison until paroled, after which he committed the subsequent crime. Gableman's lawyer maintained that "The advertisement is true."
The attorney further asserted that the rule quoted above "allows the ...Judicial Commission to unilaterally determine which speech constitutes a misrepresentation."
If Justice Gableman accepts the view of former Justice Hugo Black that the First Amendment protects all speech and expression, as his lawyer apparently contends, he is by far the most liberal member of Wisconsin's high court. If political smears are protected, why not child pornography and obscenity?
Although the US Supreme Court has given broad protection to political speech, especially calumny directed at public officials and candidates, and has barred "prior restraint" of speech and publication, expression still has legal consequences.
For example, the Wisconsin Constitution provides that "Every person may freely speak, write and publish his sentiments....being responsible for the abuse of that right.." Victims of libel and slander can sue for damages, and government boards also have the power to punish violations of administrative rules involving speech or writing by revocation of licenses.
For example, suppose that I am the listing broker for a house, and have received an inspection report that says "The south basement wall is seriously defective, may crumble unless repaired immediately." I tear up the report, and throw the shreds into the garbage. Suppose that a week later a customer asks me if I have an inspection report on the basement. I answer , "No, I don't have any report." Although it is technically true that I don't have the report at that time, the Wisconsin Real Estate Board would certainly rule that I had deliberately misrepresented my knowledge of the defective basement wall, and would impose a condign penalty.
In my view, the Butler ad is just as culpable. The ad deliberately conveys the false impression that Butler's legal work led to the release of his client, which enabled him to commit another crime. Unlike Justice Gableman, I do not believe that such "disinformation" is protected from adjudication by either the First Amendment or the Wisconsin Constitution. People are convicted of fraud all the time for misleading messages of this type, and even more are penalized by licensing authorities. None of these enforcement actions have been ruled unconstitutional.
There is a powerful public interest in robust political debate, including intensive criticism of public officials. But this debate is debased by the use of smears and lies, which have become a staple of "negative campaigning". This is particularly reprehensible in judicial campaigns, which used to be more refined and civilized than most others. Sure, talk is cheap; but its consequences can be dear, and should be.
First Amendment to the US Constitution
"..Gableman's lawyers said a state Judicial Conduct Code rule that prohibits judicial candidates from 'knowingly making false or misleading claims or misrepresenting their opponent' illegally infringes on the Justice's First Amendment right of free speech."
Milwaukee Journal Sentinel, Nov. 20, 2008, page 3B
Justice Michael Gableman, who was elected to the Wisconsin Supreme Court in April, 2007, by defeating then Justice Louis Butler, is facing a complaint filed with the State Judicial Commission over a TV ad broadcast during that campaign. The ad said that Butler (then a public defender) "found a loophole....(his client) went on to molest another child." Actually, the State Supreme Court overruled the verdict Butler obtained, and the client remained in prison until paroled, after which he committed the subsequent crime. Gableman's lawyer maintained that "The advertisement is true."
The attorney further asserted that the rule quoted above "allows the ...Judicial Commission to unilaterally determine which speech constitutes a misrepresentation."
If Justice Gableman accepts the view of former Justice Hugo Black that the First Amendment protects all speech and expression, as his lawyer apparently contends, he is by far the most liberal member of Wisconsin's high court. If political smears are protected, why not child pornography and obscenity?
Although the US Supreme Court has given broad protection to political speech, especially calumny directed at public officials and candidates, and has barred "prior restraint" of speech and publication, expression still has legal consequences.
For example, the Wisconsin Constitution provides that "Every person may freely speak, write and publish his sentiments....being responsible for the abuse of that right.." Victims of libel and slander can sue for damages, and government boards also have the power to punish violations of administrative rules involving speech or writing by revocation of licenses.
For example, suppose that I am the listing broker for a house, and have received an inspection report that says "The south basement wall is seriously defective, may crumble unless repaired immediately." I tear up the report, and throw the shreds into the garbage. Suppose that a week later a customer asks me if I have an inspection report on the basement. I answer , "No, I don't have any report." Although it is technically true that I don't have the report at that time, the Wisconsin Real Estate Board would certainly rule that I had deliberately misrepresented my knowledge of the defective basement wall, and would impose a condign penalty.
In my view, the Butler ad is just as culpable. The ad deliberately conveys the false impression that Butler's legal work led to the release of his client, which enabled him to commit another crime. Unlike Justice Gableman, I do not believe that such "disinformation" is protected from adjudication by either the First Amendment or the Wisconsin Constitution. People are convicted of fraud all the time for misleading messages of this type, and even more are penalized by licensing authorities. None of these enforcement actions have been ruled unconstitutional.
There is a powerful public interest in robust political debate, including intensive criticism of public officials. But this debate is debased by the use of smears and lies, which have become a staple of "negative campaigning". This is particularly reprehensible in judicial campaigns, which used to be more refined and civilized than most others. Sure, talk is cheap; but its consequences can be dear, and should be.
posted by Gerald S Glazer at 9:56 AM
1 comments
