November 28, 2008

Yeah, this is the Big Bopper speakin'

David Ziemer is a bit more upset with the Capital Times than I was.

Ziemer, who contributes exemplary reportage and analysis to the Wisconsin Law Journal, thinks it was pretty irresponsible of the Cap Times to suggest that Mike Gableman shares the personal views of his attorney.

To be sure, Ziemer is correct and the more firmly grounded assumption is that Gableman retained Indiana lawyer James Bopp, Jr. on account of the latter's enhanced competence and expertise in that field where election law and freedom of speech intersect.

But that doesn't mean his selection is insignificant. Because Bopp probably wanted the case as much as Gableman wanted him on it. Bopp is into challenging these restrictions all over the country.

Bopp is also lead counsel in another action currently pending before a federal court in Wisconsin, Siefert v. Alexander.

John Siefert is a Milwaukee County Circuit Court Judge who is likewise challenging the constitutionality of several provisions of the State's Supreme Court Rules, the ones pertaining to partisan political activities and direct fundraising by judicial candidates.

The adverse party, James Alexander, is the executive director of the Wisconsin Judicial Commission, which administers the SCRs.

Judge Siefert will be up for reelection in 2011, and he wants to participate in those activities which the Rules currently forbid. He (and Bopp) argues that judges can maintain those associations while not compromising their ability to remain fair and impartial in deciding cases. It's a not unreasonable suggestion.

But the provision Gableman is attacking, SCR 60.06(3)(c), is different from the ones Judge Siefert is going after. It has to do with defaming one's electoral rivals, which is probably something self-respecting candidates for the State's highest court shouldn't be engaging in and maybe even face sanctions when they do.

Defamation is generally not found among the absolutely protected categories of speech (such as virtual child pornography, American flag burning, and conservative talk radio).

Indeed, Gableman/Bopp expressly acknowledge that aspect of the Rule's intent, except they claim that its language isn't crafted narrowly enough to achieve that goal and that the Rule serves to capture and proscribe non-defamatory statements as well.

Maybe so, but that's why there's a judicial commission to evaluate and assess individual complaints arising under the Rules.

This is one among Gableman/Bopp's numerous objections, of course, including their defense that the "allegedly" misleading advertisement was simply an innocent and informative collection of disconnected, objectively true statements in no sense meant to suggest or imply anything further about Gableman's political opponent.

Yeah, right. As if the ad wasn't making a broader statement, the sum of its parts so to speak, supported additionally by the insidious visual and aural elements. It was also frankly demeaning and insulting to its intended audience and others, but that's a separate question and there's no Rule against overtly cynical, grasping political ambition.

Rather, it occasionally merits both encouragement and reward.

As Isthmus news editor Bill Lueders puts it,
Gableman wants the rule struck down, so future judicial candidates can more freely lie their way into office. What a fitting legacy that would be for Justice Gableman.
That's not an entirely unfair assessment, if you ask me.

Yet Justice Gableman's detractors had better start to brace themselves. If I were a betting man, I'd wager SCR 60.06(3)(c) will not survive First Amendment scrutiny, if this case happens to get that far. Nor would I consider it much cause for celebration.

But for Bopp/Gableman, it would be victory and vindication. Which is, to co-opt from the thrust of Gableman's legal attack against the Rule, also both prima facie wrong and especially wrong as applied.

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