But I am nevertheless concerned about state sanctioning people for campaign speech. In fact, I am so interesting that I am working on a paper raising the question: should the government police "lying" in campaign ads? If so, what should the standard be?
Let's put aside, for a moment, the suggestion that judges should be held to a "higher standard." It isn't self evident to me that we should not expect our legislators and executives to be just as honest as our judges or that misleading campaign ads don't harm public confidence in the integrity of our institutions in the same way for nonjudicial as well as nonjudicial races. The US Supreme Court, moreover, has recognized broad speech rights for judicial candidates. In any event, that's a discussion for another day.
But here's the question. The Gableman ad fetured the following text:
Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.
Each sentence, taken individually, is true. Put together, they suggest that Butler got Mitchell off and he raped another child. Not true. Butler's argument for a "loophole" (which is a meaningless term when used by the right with respect to criminal law and the left when referring to taxes)did Mitchell no good. He committed his subsequent crime after serving his sentence.
But contrast it with this robocall by Fair Wisconsin in opposition to the marriage amendment:
“I’m calling today to urge you to send a message to everyone that marriage in Wisconsin should not be changed. Vote ‘no’ on the marriage amendment and send a message that you care about our family values and our children. We don’t want activist judges getting involved to determine what marriage means. We know in Wisconsin marriage means a man and a woman. Vote ‘no’ to stop activist judges. Vote ‘no’ to protect our values. Vote ‘no’ on the gay marriage amendment.”.
Once again, each sentence, taken individually is true. But the clear implication - and clear intent - is to make the voter think that a "no" vote is a vote against gay marriage.
Should the state sanction people for election communications like these?