Thursday, April 16, 2009

Policing campaign ads?

As I have blogged in the past, I am no fan of last year's Gableman campaign ad regarding Louis Butler and Reuben Mitchell. It is wildly misleading and was a political mistake. The ad was an extremely small buy. Very few people actually saw it run as a paid piece. But it got a lot of attention for its distortion of the facts - "earned" media - and that was all bad. Politicos have told me that they believe the ad almost cost Gableman the race.

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?


Anonymous said...

I must have missed the part where Fair Wisconsin was seated at the bench.

illusory tenant said...
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illusory tenant said...
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illusory tenant said...

"Politicos have told me that they believe the ad almost cost Gableman the race."

It's not too late.

Rick Esenberg said...


Read carefully. If you want to say that the answer is "no" unless the speaker is a judge or judicial candidate, you can but that's not my question so there was nothing for you to "miss."

Yor answer, then, I take it, is that its OK to lie as long as your're not a judge.

Anonymous said...

I think Gableman beats the rap. In order to prosecute, you have to find mens rea. His legitimate defense: He's too stupid to know any better.

William Tyroler said...

Some desultory thoughts.

Professor Esenberg agrees the ad "is wildly misleading"; indeed, its intended message is "(n)ot true." A damning characterization under the circumstances, I would say.

Gableman's original defense, as I understand it, was that he had a first amendment right to take great liberty with the facts. (Granted, he wasn't quite that forthcoming, but I think that's a fair gloss nonetheless). He has, I gather based on assessments from both Tom Foley and Prof. Esenberg, abandoned that defense in favor of a claim that the ad was truthful. His problem is not merely that the ad is "wildly misleading," but that he affirmatively claims he "made every reasonable effort to ensure that the Ad was accurate." It is a foolish claim precisely because the ad is so obviously false. Either he made no such effort, or else he is exceptionally inept. Neither is an attractive alternative.

Professor Esenberg rightly worries about first amendment implications. Yet, Gableman (if my information is correct) raises no 1st A argument. SCR 60.06(3)(c) says:

A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.If the ad indeed was, as Professor Esenberg says, "wildly misleading," then doesn't it inexorably follow that this Rule was violated? And if, because it simply hasn't been raised, the first amendment offers no bar to discipline, then what might stand in the way?

Anonymous said...

How would an election practices tribunal deal with the (perhaps apocryphal) 1950 Florida Democratic Senate primary stump speech of George Smathers against Claude Pepper? The one that accused Pepper of being a "shameless extrovert," "practicing nepotism with his sister-in-law," having a sister who was once a thespian in wicked New York, and having practiced celibacy before his marriage?

(I had thought the speech also accused Pepper of having masticated in public, but I don't think that's correct.)

Smathers denied having made the remarks, and offered $10,000 to anyone who could prove he had said what he was alleged to have said. (Tape recorders were not widely available in rural Florida in 1950.) He won the election, and served in the Senate for eighteen years. Pepper lost, but later won election to the House of Representatives, where he served with distinction.

George Mitchell said...

The issue that Rick intends to address is very important. Namely, when, if ever, should the government control or regulate political speech? How should it do that? This issue transcends whether the (largely unseen) Gableman ad was "true" or not.

Anonymous said...

Thank you George, that was the way my thoughts had been going as well.
While I think anyone should be liable for libel, there is an elasticity in the English language that allows facts to mislead. This flexibility is so open to multi-interpretation, that I cannot imagine any laws not becoming a weapon of the majority to interpret one side a bit more liberally than the other, if laws were ever put in place to contol political speech.
I foresee a morass of stacked panels like the one Doyle used to deny Green the use of national funds in the last Gubernatorial race. It was legal before, it is legal now, it just wasn't legal for Green.

'Your answer, then, I take it, is that its OK to lie as long as you're not a judge.'

Yeah, just like that. 'It is okay here for our side, but not there because the situation is... it's's different. Yeah, that's it!'