April 16, 2009

Esenberg rigs the jury

Gableman made every reasonable effort to ensure that the Ad was accurate by being familiar with the arguments advanced by Butler.The Honorable Respondent, paraphrased
Here's a somewhat entertaining "hypothetical" from Marquette law professor Rick Esenberg this morning. He's wondering whether "the state should sanction people for election communications."

One of the two examples he places on offer is a portion of then-candidate Judge Michael Gableman's famous teevee ad. But the appropriate question presented by Gableman's shenanigans is not the one posed by Esenberg, but rather whether the judiciary may promulgate and enforce ethical guidelines for its membership.

Of course it may, and does.

Even Gableman dropped his anticipated constitutional challenge to the rule (and the Wisconsin statute) he stands accused of violating.

Perhaps fearing the obviously affirmative answer to the proper question, Esenberg poses the broader query, and then compares Gableman's handiwork with some third-party gay marriage robocall.

The comparison is not only inapt but pointless. Michael Gableman, a judge, was operating under a separate set of constraints, for a separate set of individuals: judges, running for judgeships. There exist no such constraints upon third-party citizens' groups.

Esenberg is asking a different question, so of course he'll get a different answer, which ignores the particulars of Gableman's pickle while at the same time holding Gableman forth as an example.

More interestingly, Prof. Esenberg once again takes up his cudgels as a Mike Gableman amicus by insisting of the teevee ad under consideration, "Each sentence, taken individually, is true."

Except they aren't.

Butler didn't find a loophole, the State of Wisconsin found a loophole. And even if a loophole was found by the defense, it was found not on appeal but by a different lawyer at trial, who raised and preserved his objections based on the plain text of the law, which forbids the introduction of a sexual assault victim's past sexual history.

Prof. Esenberg conveniently sidesteps this predicament by pronouncing loophole "a meaningless term when used by the right with respect to criminal law."

He has got to be kidding.*

This is the same Rick Esenberg who lent Marquette Law School's considerable prestige to his fellow travelers at Wisconsin Manufacturers & Commerce, which outfit went on to produce not just one but two television ads playing almost exclusively on the said "meaningless" term, in precisely that criminal law context.

And the argument (WMC called it a loophole, that meaningless expression whose meaning appears miraculously on page 954 of the industry bible, 7th ed.) in the particular dissent of Justice Butler's those ads were exploiting was later affirmed by none other than Justice Antonin Scalia & Co. of the United States Supreme Court.

Meanwhile Prof. Esenberg was diligently defending some of the sloppiest, most vindictive, and borderline libelous "opposition research" produced during the entire election campaign.

Sometimes it's difficult to take him seriously.

However, to answer his question: Yes, Prof. Esenberg's aforementioned labors should be protected against state sanction.

* Moreover, how in this world can an English sentence be "true" (or false) if its very object is "meaningless"? Bueller? Wittgenstein?


Rick Esenberg said...

You know, Tom, I think you're smarter than to play these games. I am aware - in fact I pointed out - that some people might argue that there is more of a reason to restrict the first amendment rights of judicial candidates, but its not clear to me that this makes sense or that, after Republican Party v. White, it is likely to prevail.

You don't avoid that problem by referring to the interest of the judiciary in maintaining ethical standards. Any sanction imposed by the WJC will be state action.

I don't know, but I suspect Gableman dropped his constitutional challenge because it would be a "no win" proposition. He is highly unlikely to be removed from office. Given that, winning on constitutional grounds (i.e., if I lied, I had a right to) is not much of a victory.

Your assumption that I am somehow trying to defend or be an amicus for Gableman is baseless. As I have said again and again, his ad communicates a false message. But I stand by the proposition that each statement, taken by itself, is true. To say that Butler argued for a loophole or that someone else found it first is to be overly tendentious. In any event, given that we agree that the message conveyed was false, this seems like a silly thing to argue about unless your point is, as it increasingly seems to be, to suggest that you are smarter than those you disagree with.

Arguing with me about the use of the term loophole in this context just underscores that. Were you not trying to score points, you would agree with me that calling a claim for a procedural right a "loophole" is meaningless. It's only a "loophole" if you don't like it. Why you think it somehow matters to me or to my point that WMC used the term is beyond me. I get to disagree with WMC and vice versa.

illusory tenant said...

I don't know what or what doesn't matter to you, just as you have no idea whether I think I'm "smarter" than anyone else.

(Thanks for that, by the way. It made me laugh. If you only knew.)

But what does matter is that Gableman wants the Commission to disregard his larger message in favor of having adjudicated only four discrete sentences, each of which he (and you, hence, amicus) claims is "true."

Why stop there? Why can't we look further, to the words that comprise those sentences?

Because when we do, we find that the sentence "Butler found a loophole" is false.

When I listen to or read what lawyers say, I'm mindful that they're lawyers. I'm mindful that language is important to lawyers. Or is supposed to be.

I'm also mindful that lawyers swore an oath, which sets them apart from, for example, the gay marriage robocallers.

Contrary to your assertion, "loophole" is hardly meaningless, and I see no reason why Gableman's semantically reductionist legal defense necessarily contains a rule — also imposed by Gableman — that his message may only be reduced so far as suits his purposes.

And I hope the Commission doesn't let him get away with it.

Anonymous said...

to suggest that you are smarter than those you disagree withI don't think that's the metric at issue.

illusory tenant said...

This morning, I was the victim of that exact same missing carriage return after the italics tags. Google seems to be a little buggy today.

Anonymous said...

Feelin' a little buggy myself.

Clutch said...

How could repeatedly claiming that each sentence was true be confused with defending Gableman? I mean, it's so, like, baffling.


Also worth a giggle: the suddenly prized notion that when someone debunks your bullshit rhetoric, it means they're committing the sin of thinking they're smarter than you. How to transform your mistakes into someone else's character flaws!

illusory tenant said...

Had I even previously entertained any pretense to being "smarter" than anybody else, Prof. Esenberg should know that law school is where you go to have it beaten out of you.

Rick Esenberg said...

You still don't get it. My post wasn't about Gableman but merely used the case to raise a point about the state punishment of speech. You can say that this ought to be permitted only for judges, but you need to defend that position. Sanctions by the WJC constitute state action. My remark about "loopholes" wasn't that it wouldn't have a negative connotation, but that the use of the term conveys nothing other than the speaker's conclusion.

Finally, as to my lending the prestige of Marquette University to WMC, part of my job is to comment on legal matters. I have colleagues that comment on things from a very different perspective and who might be said to be lending their prestige to very different organizations. They're doing their job as well.

illusory tenant said...

"My post wasn't about Gableman but merely used the case to raise a point about the state punishment of speech."

Right. My post was about Gableman, and referred to those portions of your post that wasn't about Gableman that were about Gableman.

"My remark about 'loopholes' wasn't that it wouldn't have a negative connotation, but that the use of the term conveys nothing other than the speaker's conclusion."

You mean your remark about loopholes in your post that wasn't about Gableman?

You said loophole was "meaningless," but I appreciate the clarification. Because if it really is meaningless, then that sentence containing it as its object is meaningless, and you can't possibly say whether a meaningless sentence is true.

Anyway, I think we already had a pretty good idea about Gableman's conclusion(s). But it's the listener's conclusion that's at issue here. Gableman wasn't speaking to himself, or speaking in a vacuum.

Which raises another question, issuing from that post of yours that wasn't about Gableman: What difference does it make that Gableman's was an "extremely small buy"?

None, it seems to me. The question here involves the content of the ad, not how many times its message was repeated. Clearly, Gableman intended it to be seen and heard by as many potential voters as possible.

He admits as much in his most recent filing, where he depicts himself and his campaign staff scrambling to counter some third-party messages (by attacking Butler directly and personally, something he also needs to explain).

Anonymous said...

Ze famous pipe. How people reproached me for it! And yet, could you stuff my pipe? No, it's just a representation, is it not? So if I had written on my picture 'This is a pipe,' I'd have been lying!