The state Supreme Court’s ruling on Justice Michael Gableman’s race-baiting 2008 campaign ad is nearly as shocking as the ad itself.

In dual 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.

Three 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.

The justices 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.

Robert 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.

“The 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.

He said political alliances played a role in the conservatives’ decision.

“It’s hard to ascribe any other motive other than protecting another conservative on the court,” Kraig said.

A 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 disabilities. Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”

The ad showed a photo of Butler alongside Mitchell, also African American, while the ominous statement was read.

But contrary to Gableman’s claim, Butler’s defense did not free Mitchell. Mitchell served out his term and while on parole committed his next crime.

In its 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.

“They made an utterly absurd argument,” Kraig said. “It’s scandalous that you would have three members of the Supreme Court advance such an argument.”

These justices said the Judicial Commission should dismiss the case immediately.

But the 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.

They sent the case back to the Judicial Commission, which they instructed to hold a jury trial on the matter.

A Call for Reform

James 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.

Citizen Action’s Kraig said the Judicial Commission is in a bind.

“There’s no 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.”

Kraig 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.”