November 12, 2009

Gableman has a constitutional right to lie

And he deliberately exercised it, according to Judge Ralph Adam Fine, who concludes that while Gableman did indeed violate the Wisconsin judicial ethics rule against telling lies about one's political opponent, that rule is an unconstitutional abridgment of speech.

Findings of fact, etc. (.pdf; 37 pgs.)

Judge Fine's significant analysis begins on page 20.

At least Judge Fine concedes that Gableman's teevee advertisement itself is a "statement," and that setting each of its individual spoken English propositions in isolation is "a crabbed reading, lashed to the mast of sentence-by-sentence literalism, and ignores the way we use language, often deriving significant meaning from implication."

The panel's decision also contains a number of admonitions directed toward Gableman, but all are completely toothless in light of its recommendation that the complaint against Gableman be dismissed.

The other two panelists voted to dismiss the Judicial Commission's complaint because Gableman didn't violate the code of ethics or, at most, only violated that portion for which no prosecution is available.

What's missing from the panel's opinions is any discussion of Gableman's — who was not only a candidate but a sitting judge at the time — professional obligation to adhere to the code of ethics in spite of his desire* to behave outside its restrictions, yet still within the broader protections guaranteed by the U.S. Constitution.

I guess this is what they call a "victory for free speech."
Gableman's lawyer, James Bopp, described the panel's recommendation as a complete vindication, the AP reported.
Disgraceful. I would even say immoral.

So, why exactly does the Supreme Court of Wisconsin require lawyers to complete biennial training in ethics to maintain their licenses? I mean, by what authority does Michael Gableman get to mandate that I complete biennial training in ethics? Also the First Amendment?

Because it's clearly not a moral authority.

* In fact the record shows that Gableman allowed his political advisers to convince him that it was a need: a need for lying attack ads even though those attacks were inspired by communications made by third-party interests that Gableman decided were politically threatening. That decision alone was a twisted ethical failure.

Earlier:
Loophole Gableman, Parte the Firste
Loophole Gableman, Parte the Seconde

11 comments:

Pete Gruett said...

I think this is the best argument I've ever seen for merit-selection of judges.

I can't think of any other way to enter civil service where you could just outright lie during the application process and face no professional consequences whatsoever.

Oh well, I'm off to "update" my resumé.

illusory tenant said...

Lawyers get their tickets pulled for lying.

Anonymous said...

"Lawyers get their tickets pulled for lying."

If that was true there wouldn't be any lawyers. :)

illusory tenant said...

You have to catch them first.

Brett said...

So Gableman has a right to lie to the public, but criminal defendants do not have a right to lie to the police (see State v. Reed, written, ironically, by pro-criminal Justice Butler). I'm moving.

illusory tenant said...

To West Virginia?

Brett said...

The backwater of Virginia never looked so appealing.

illusory tenant said...

You should look into Tajikistan or Burnett County first.

John Foust said...

JB recently clarified that it's not illegal for lobbyists to lie. In this case, it was TV4US, an AT&T-backed Astroturf group fronted by a former Doyle PR flack.

illusory tenant said...

I don't have a problem with lobbyists or Sean Hannity or creationists lying. Those are reasonably to be expected. But I don't think judges should be lying. I guess I'm just old fashioned that way.

John Foust said...

Oh, I'm entirely pro-freedom-to-lie when it comes to lobbyists, too. What's amazing is that some folks were shocked, shocked, shocked when it becomes so obvious that they do it. I guess campaign contributions have a numbing effect, like Anbesol.