In dualdecisions released late at night, six Supreme Court justices offered twoverdicts on whether its newest justice, Michael Gableman, had the right to liein campaign ads about his opponent in the April 2008 election.
Threeconservative justices argued that Gableman’s ad was truthful and protected bythe First Amendment, while the liberal justices found that the ad was“objectively false,” that Gableman knew it was false, and that the FirstAmendment doesn’t protect false statements.
The justicesalso split on whether Gableman should be punished, with the conservativessaying the complaint should be dismissed and the liberals saying that a jurytrial should be conducted to decide the matter.
RobertKraig, executive director of Citizen Action of Wisconsin, which filed thecomplaint about the ad in 2008, blasted the conservative justices’interpretation of Gableman’s ad.
“Theimplication here is that a sitting judge who completely shredded the Code ofJudicial Conduct faces no consequences and is above the law and can be electedby running one of the most reprehensible ads not just in Supreme Court historybut in all Wisconsin political history against the first sittingAfrican-American Supreme Court justice,” Kraig said.
He saidpolitical alliances played a role in the conservatives’ decision.
“It’s hardto ascribe any other motive other than protecting another conservative on thecourt,” Kraig said.
AKnowingly False Ad
The ad inquestionpersonally reviewed and approved by Gableman when he felt he waslosing the race to unseat Louis Butlerstated that Butler “worked to put criminals on thestreet. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learningdisabilities. Butlerfound a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on theSupreme Court?”
The adshowed a photo of Butleralongside Mitchell, also African American, while the ominous statement wasread.
But contraryto Gableman’s claim, Butler’sdefense did not free Mitchell. Mitchell served out his term and while on parolecommitted his next crime.%uFFFD
In itscomplaint filed with the Wisconsin Judicial Commission, Citizen Action ofWisconsin argued that Gableman violated the state’s Judicial Code of Conduct,which states that candidates for judicial offices cannot knowingly or withreckless disregard misrepresent an opponent’s record.
On the onehand, conservative justices David Prosser, Pat Roggensack and Annette Zieglerfound that the “distasteful” ad was protected under the First Amendment. Goingfurther, they found that each individual statement in the ad was true, nomatter what message the entire ad conveyed.
“They madean utterly absurd argument,” Kraig said. “It’s scandalous that you would havethree members of the Supreme Court advance such an argument.”
Thesejustices said the Judicial Commission should dismiss the case immediately.
But thethree liberal justicesChief Justice Shirley Abrahamson, Ann Walsh Bradley andPatrick Crooksargued that the ad, when viewed in its entirety, “communicatedan objectively false statement.” What’s more, the ad’s supporting sources“omitted the key reference to the Supreme Court case that proves themisrepresentation contained in the advertisement itself.”
And does theFirst Amendment protect Gableman’s so-called “right to lie”?
Not at all.
“The law isclear: The First Amendment does not protect a false statement that is made‘with knowledge that it was false or with reckless disregard of whether it wasfalse or not,’” Abrahamson, Bradley and Crooks concluded.
They sentthe case back to the Judicial Commission, which they instructed to hold a jurytrial on the matter.
ACall for Reform
JamesAlexander, executive director of the commission, did not return a call seekingcomment for this article. But after the dual decisions were released last week,Alexander told a reporter that he didn’t know what would happen until thecommission reviewed the decisions.
CitizenAction’s Kraig said the Judicial Commission is in a bind.
“There’s noway for them to dodge it,” Kraig said. “If they do nothing, they’re going alongwith the conservative justices. If they hold a jury trial, then the right willgo ballistic. [The case] not only sets a horrible precedent for how to beelected to the Supreme Court, but it also undermines legitimacy of the courtand therefore the Wisconsin judicial system.”
Kraigsupported the request for a jury trial and also called on the state Legislatureto establish through a constitutional amendment an independent process thatwould rule on judicial misconduct.
“It’s clearthat the Supreme Court cannot police itself,” Kraig said. “You essentially haveconservative justices refusing to apply the law to an ally on the court.”
