September 14, 2009

It's false, and it's also true*

Patrick Marley reminds us of Gableman's Wednesday showdown:
But Gableman argues the ad was true because it did not explicitly say that Butler's actions caused Mitchell's release. He can't control how viewers might interpret his ads, his lawyers have argued.
By the same reasoning, it's perfectly acceptable to imply that your opponent has sex with barnyard animals. You're just not responsible for the implication. Sounds like a real winner of an argument to me.

And eminently becoming to a Wisconsin Supreme Court Justice.

* According to Marquette law professor Richard Esenberg.

8 comments:

Rick Esenberg said...

No, actually I said it was true but it was false. In other words - as I made clear in the post - if one parsed every sentence individually, they were all true. If you put them together, the clear implication was false.

I did not offer this as a jusification of the ad which I have never defended. (In fact, Robert Henak's motion for Gableman's recusal in criminal cases cites me - and your dread Charlie Sykes - for immediately pointing out that the message conveyed by the ad was not true.)

I do think that there is a first amendment issue raised by sanctioning messages because of the way in which people are likely - perhaps even certain - to interpret them. I don't claim that there ought to be such a defense here, only that the case raises the question of whether and when such defenses should be permitted.

For example, your title and link to me has arguably - perhaps even rather clearly - implied that I defended the verity of the ad. Perhaps that is defamatory for a legal academic. If that can be interpreted to be your claim, it certainly is false and I think it is fair to say that any claim that I defended the ad has to be have been made with reckless disregard for the truth. Speaking hypothetically (no need to lawyer up), should I have a cause of action against you?

Actually, I don't think so. As far as I can tell, your whole point here is to pick fights with people whose politics that you don't like even when they agree with you on the point at issue, in this case, whether the ad conveyed a false and misleading message. (I realize that we may disagree on what should be done about it.) But that is your right and overly intrusive state scrutiny of what you have said and the way that you have said it would unduly burden that right.

Is that true in the Gableman case? Maybe not (and maybe not because of the peculiar nature of judicial campaigns), although one could certainly ask whether, if it isn't, there will be a small cottage industry in going after negative campaign ads which are almost always examples of bad faith and very often false and misleading.

Maybe that'd be a good thing, although I am skeptical.

Clutch said...

if one parsed every sentence individually, they were all true

Since iT demolished the "loophole" claim as applied to the Mitchell case, presumably the view is that "Butler found a loophole" is true because Butler, at some time, on some case, or perhaps even in a completely non-legal context, found a loophole on something or other. In tying his shoes, for instance!

Look, even you recognize the inaccuracy of the claim -- your sense of decency prevents you from asserting it in your PrawfsBlawg entry, even when recounting the alleged truthfulness of each sentence. There you only mouth the form of words by placing them in scare-quotes. You don't seem to feel the need to place Butler represented the defendant as a lawyer in quotation marks. Why not? Because it's true, that's why not.

For example, your title and link to me has arguably - perhaps even rather clearly - implied that I defended the verity of the ad. Perhaps that is defamatory for a legal academic. If that can be interpreted to be your claim, it certainly is false and I think it is fair to say that any claim that I defended the ad has to be have been made with reckless disregard for the truth.

LOL. I'd love, love, love to see each of those claims analyzed in court.

"Your Honor, I said that it was true but false. Mr Foley was clearly reckless in his disregard for the truth in reporting me as saying -- um, I mean defending -- that it was both false and true. In fact, it is my contention that the meaning of 'but' and the general conventions of English usage have a reckless disregard for the truth!"

;-)

illusory tenant said...

Professor, "It is true but false" — which is what you said — and "It is true and false" are synonymous conjunctions. Changing "but" to "and" doesn't alter the meaning of your statement one bit, as anyone can follow and understand by reading the link.

Your title and link to me has arguably — perhaps even rather clearly — implied that I defended the verity of the ad.

You have defended the verity of the ad. What else could "it is true" possibly mean? Yes, we understand you're condemning the falsity of the implied message, but you're defending — or at least asserting — the truth of the individual statements underlying the false message.

Specifically, you're defending the verity of the statement, "Butler found a loophole." That statement is false. The defense wasn't relying on a loophole, the State was. Several different loopholes, in fact.

Even if one adduces a definition for "loophole" exactly the opposite to what the word actually means — "an ambiguity, omission, or exception (as in a law or other legal document) that provides a way to avoid a rule without violating its literal requirements" — Butler didn't "find" it. Mitchell's defense counsel at trial "found" it. And objected to it. And preserved it for appeal. Butler didn't "find" anything. He only picked up where the trial counsel left off.

So the statement is false on not just one but two counts. Yet you are claiming it's "true."

Gableman argues that one needs to look below the surface of the ad and break it into the four constituent statements that underlie the offending portion of its message. This is where you find the "truth," or so he says. And he's not responsible for the "false" implications that observers derive from his innocent collection of "truths."

What I am saying is, there's no reason to stop there. Why not break those statements into their constituent words? Unfortunately, the WJC has conceded this point to Gableman, possibly because the Commission is relying on caselaw that makes reference to "words being reasonably interpreted and construed in the plain and popular sense."

Mine is a separate line of argument than the Commission is pursuing. I disagree with its apparent decision not to dispute this particular statement, although at least the Commission refers to "the so-called 'loophole'" in its filings.

This has nothing to do with politics. This has to do with lying.

As for the First Amendment, nobody's abridging Gableman's freedom to speak whatever he wanted to speak during the course of his political campaign. He said it, and he said it after what he claims was careful deliberation and close review of the record of the case in question. I further assume he owns a dictionary.*

If the State doesn't have a compelling interest in ensuring people who lie — indeed, people who lie while they are sitting judges — are not placed in positions of meting out justice to other people who do not lie, then I don't know what a compelling interest is.

* Even non-legal dictionaries repeat the legal definition.

John Foust said...

Therefore, students of Hogwarts, all you need to do is insure your phrases are broken up into separate false sentences, then place them in the context of a political ad, utter the magic words malum in se cum federalistsa, wave you wand just so, and in a most unusual transmutation, the False becomes True.

Follow the logic: because the word "True" is the last word I uttered in the previous sentence, that is the one that will linger as the Truth.

With these powers in hand, even you can enthusiastically support justices who tell lies to get elected! Yes, you can even do it on television!

A little post-election hand-wringing about the the ugliness of democracy and a few statements of disdain about the bad-faith nature of most political advertising will cleanse you of all blame. You'll be invited to fundraisers and luncheons just like before!

Clutch said...

all you need to do is insure your phrases are broken up into separate false sentences, then place them in the context of a political ad, utter the magic words malum in se cum federalistsa, wave you wand just so, and in a most unusual transmutation, the False becomes True

Other way around.

It went: the parts are literally true, but the whole is implicatively false, so, sure, golly, it really wasn't very gentlemanly, but do we really want the GOVERNMENT!!! telling us how to sort out the actually true stuff from the sort-of false stuff?

John Foust said...

Last I heard, one-third of the gummint was dedicated to the pursuit of the demonstrable proof of truth of real-world situations, often as a matter of life and death, as well as the gays getting married.

And Clutch, in the riveting television courtroom drama in my mind, I think it would go a little something like this:

"Your Honor, I set up a blog and invited the world to post comments and I promoted myself to the public as an expert on legal matters, on television, in political speech, in newspapers, and in personal appearances, and then this horrible man came to my blog and insulted my character!"

"You made yourself a limited public figure. Case dismissed. You know the one-liner that ends in 'You have a fool for a client'? Good. Next!"

illusory tenant said...

Presumably the view is that "Butler found a loophole" is true because Butler, at some time, on some case, or perhaps even in a completely non-legal context, found a loophole on something or other. In tying his shoes, for instance!

This very closely parallels the same hypothetical that Ralph Adam Fine, one of the three judges on the panel at yesterday's hearing, put to Gableman's lawyer at one point.

Clutch said...

Well, you know, I almost went to judge school myself. Failed out at the catwalk stage of the interview, with my views on opposite marriage.