Justices wrestle with limits of judicial campaign speech

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Wisconsin voters got a break this spring from the cantankerous back-and-forth common to recent state Supreme Court campaigns.

Before a possible race next year, the court has the opportunity to shape the limitations of judicial campaign speech prior to the expiration of Justice David T. Prosser's term.

The court heard testimony on April 16 from the Wisconsin Judicial Commission (WJC), which alleged that Justice Michael J. Gableman willfully violated the Wisconsin Code of Judicial Conduct's prohibition on making misrepresentations during judicial campaigns.

Aside from deciding whether a 2008 ad run by Gableman against then-Justice Louis B. Butler contained true statements, but was also contextually false, the court may also have to read between the lines.

"Where does inference come in?" Prosser asked during oral argument.

Marquette University Law School Professor Richard M. Esenberg said that while there is support for constitutionally sanctioning knowingly false statements, it is difficult to do so with sentences that are literally true, but false in context.

One problem, he said, is drawing the conclusion that the speaker intended to convey a false meaning.

"Another is the potential impact on speech of allowing courts to decide that something that is literally true nevertheless conveys a false message," Esenberg said. "If that is constitutionally permissible, then much campaign advertising could be the subject of litigation."

According to WJC attorney James Alexander, the case has to do with "implications" on the future integrity of the judicial system.

He argued to the court that the collective statement made in an ad falsely represents that Butler, while working as a public defender, found a "loophole" in the law, which kept a convicted child molester on the street. The convict subsequently raped an 11-year-old girl.

Gableman defeated Butler in the spring 2008 election and started serving a 10-year term on the bench that August.

Several justices questioned the boundaries of First Amendment protection when it pertains to judicial campaign speech.

Chief Justice Shirley S. Abrahamson asked attorney Eric M. McLeod, counsel for Gableman, on how far campaign speech could go before it would be deemed a violation of the judicial code.

"I've read your briefs, and they seem to indicate that anything goes and the government cannot determine if statements are false or true," she said. "Is that your position?"

McLeod replied that in accordance with the code, only statements that are "objectively false" would be excluded from constitutional protection.

"These statements are true," he said of those contained in the ad. "What the commission wants to do is ask the court to look behind those and ask what is implied. That is not a question the government is allowed to ask and certainly not allowed to punish a speaker for."

Attorney Thomas J. Basting, Sr. said there is little doubt that the ad in question was misleading, but more difficult to assess is whether it legally goes beyond First Amendment protection.

As chair of the Wisconsin Judicial Campaign Integrity Committee, an independent watchdog group formed in 2007, Basting said he doesn't expect the outcome of the case will put an end to allegations of judicial campaign misconduct in the future.

"My guess would be that the First Amendment will probably trump the deliberately misleading accusations in this case," he said. "But that doesn't solve the problem."

Next year's race, assuming there is one, could be potentially "nasty", said Basting.

Esenberg added that in an election context, a ruling contrary to First Amendment rights could put the court in a position of being viewed as "political players" enlisted by one side or the other in the electoral process.

"While no one wants to say there is a constitutional right to lie, it is not at all clear that we are better off having campaign discourse regulated by courts," he said.

Jack Zemlicka can be reached at [email protected].