Will Gableman’s Right to Lie Survive?
Conservative Supreme Court justices protect their ally
decisions released late at night, six Supreme Court justices offered two
verdicts on whether its newest justice, Michael Gableman, had the right to lie
in campaign ads about his opponent in the April 2008 election.
conservative justices argued that Gableman’s ad was truthful and protected by
the First Amendment, while the liberal justices found that the ad was
“objectively false,” that Gableman knew it was false, and that the First
Amendment doesn’t protect false statements.
also split on whether Gableman should be punished, with the conservatives
saying the complaint should be dismissed and the liberals saying that a jury
trial should be conducted to decide the matter.
Kraig, executive director of Citizen Action of Wisconsin, which filed the
complaint about the ad in 2008, blasted the conservative justices’
interpretation of Gableman’s ad.
implication here is that a sitting judge who completely shredded the Code of
Judicial Conduct faces no consequences and is above the law and can be elected
by running one of the most reprehensible ads not just in Supreme Court history
but in all Wisconsin political history against the first sitting
African-American Supreme Court justice,” Kraig said.
political alliances played a role in the conservatives’ decision.
to ascribe any other motive other than protecting another conservative on the
court,” Kraig said.
Knowingly False Ad
The ad in
question—personally reviewed and approved by Gableman when he felt he was
losing the race to unseat Louis Butler—stated that Butler “worked to put criminals on the
street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning
found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the
showed a photo of Butler
alongside Mitchell, also African American, while the ominous statement was
to Gableman’s claim, Butler’s
defense did not free Mitchell. Mitchell served out his term and while on parole
committed his next crime.
complaint filed with the Wisconsin Judicial Commission, Citizen Action of
Wisconsin argued that Gableman violated the state’s Judicial Code of Conduct,
which states that candidates for judicial offices cannot knowingly or with
reckless disregard misrepresent an opponent’s record.
On the one
hand, conservative justices David Prosser, Pat Roggensack and Annette Ziegler
found that the “distasteful” ad was protected under the First Amendment. Going
further, they found that each individual statement in the ad was true, no
matter what message the entire ad conveyed.
an utterly absurd argument,” Kraig said. “It’s scandalous that you would have
three members of the Supreme Court advance such an argument.”
justices said the Judicial Commission should dismiss the case immediately.
three liberal justices—Chief Justice Shirley Abrahamson, Ann Walsh Bradley and
Patrick Crooks—argued that the ad, when viewed in its entirety, “communicated
an objectively false statement.” What’s more, the ad’s supporting sources
“omitted the key reference to the Supreme Court case that proves the
misrepresentation contained in the advertisement itself.”
And does the
First Amendment protect Gableman’s so-called “right to lie”?
Not at all.
“The law is
clear: 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 was
false or not,’” Abrahamson, Bradley and Crooks concluded.
the case back to the Judicial Commission, which they instructed to hold a jury
trial on the matter.
Call for Reform
Alexander, executive director of the commission, did not return a call seeking
comment 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 the
commission reviewed the decisions.
Action’s Kraig said the Judicial Commission is in a bind.
way for them to dodge it,” Kraig said. “If they do nothing, they’re going along
with the conservative justices. If they hold a jury trial, then the right will
go ballistic. [The case] not only sets a horrible precedent for how to be
elected to the Supreme Court, but it also undermines legitimacy of the court
and therefore the Wisconsin judicial system.”
supported the request for a jury trial and also called on the state Legislature
to establish through a constitutional amendment an independent process that
would rule on judicial misconduct.
“It’s clear that the Supreme Court cannot police itself,” Kraig said. “You essentially have conservative justices refusing to apply the law to an ally on the court.”