Thursday, September 17, 2009

Prognostication About a Judicial Ethics Complaint

Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there.

There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides "[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent." This is the proscription that the Judicial Commission says was violated by the Mitchell ad.

But there is a second sentence. It states that "[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."

The difference between "shall" and "should" is significant. The preamble to the Judicial Code states that "[t]he use of "should" or "should not" in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined." (emphasis supplied)

Everyone agrees that the ad contained a series of statements which, read in isolation, are true. Almost everyone agrees that this same series of statements, when read together, conveys or implies a message which is, in one or more respects, false. The ad says "Butler found a loophole. Mitchell went on to molest another child." Someone hearing the ad would likely conclude that it means "Butler found a loophole. As a result, Mitchell went free. And then Mitchell offended again."

But there is a potential problem. Gableman has free speech rights and it is not an easy question to define the circumstances under which the state can punish speech that it determines to be false. Indeed, some would argue - and Gableman does - that it can only punish speech that is defamatory subject to certain additional constitutionally required qualifications. Because 60.06(3)(c) is not so limited, it is facially overbroad and should be declared unconstitutional.

I don't see that happening.

But the other day, while discussing the case with a reporter for the National Law Journal, I concluded that this might.

The panel may construe 60.06(3)(c) narrowly to require a literally false statement in much the same way that prosecution for perjury generally requires such a statement. Or it may conclude that it is unconstitutional if applied to statements that are literally true but claimed to convey or imply a false message.

Why would the panel do this? Don't I think - shouldn't they think - that the ad is false? I do and they probably do too, but I am - and, by the questions put at oral argument, they are - concerned about the state taking on the responsibility to determine whether political speech - something which is at the core of first amendment protection - would be understood to convey a false message.

This is particularly so in the context of campaign ads that are highly truncated messages (often no more than thirty seconds long) that almost must oversimplify the issues that are discussed.

For example, during the Presidential election, the Obama campaign ran some ads that claimed John McCain would "tax your health care benefits." That was literally true. It is not unreasonable to further claim that it would be understood by most people to mean that they would have to pay new taxes under McCain's plan.

But that understanding would be false. McCain was also proposed providing a tax credit that would offset any new taxes for almost everyone. The Obama campaign read some ads that mentioned this credit but others that did not. Still others, while mentioning the tax credit, also referred to a middle tax class hike and asked whether "you" could afford it? Should the first amendment permit the sanctions for such ads? My initial reaction is "no."

This concern is magnified here because finding a violation of the first sentence of 60.06(3)(c) raises the question of discipline and, while that discipline might be limited to a reprimand or a fine, other potential sanctions - suspension or removal - raise uncomfortable issues about disciplinary proceedings interfering with the result of an election. They aren't going to happen.

But what about the second sentence of 60.06(3)(c)? It is not what the Judicial Commission relies upon, but might the panel nevertheless observe that the Gableman ad violates this aspirational rule. Maybe it is true, but it is certainly misleading. There cannot be a sanction for violating it, but there certainly can be criticism. Would official disapproval of political speech violate the First Amendment? I think not and it would avoid difficult questions about undermining the outcome of an election. (Although you might make the same argument about a reprimand, such an official disciplinary act may be different, particularly in a system of progressive discipline.)

Cross posted at Prawfsblawg and Marquette University Law School Faculty Blog.


Billiam said...

Maybe some of you Lawyers can help me out here. When I was in the Service, there were things we were told we could not say or do while on Active Duty, that we were no longer subject to the Bill of Rights, but to the UCMJ. Would this situation be along the same lines as say, that a Judge or Congressman are bound by a different set of rules that would curtail certain rights due to their position? Do I have this right?

Rick Esenberg said...

Well, the answer is not so clear. Judges and judicial candidates do have a right to free speech. But it may be possible to argue that the state has a more compelling interest in regulating that speech in certain ways.

But ... I'm not sure that works here. It is not clear to me that the state has a greater interest in regulating false statements by judicial candidates than, say, candidates for President.

Incidentally, you were still "subject to" the Bill of Rights although your status as a member of the military impacted the way in which it restricts state action toward you in certain ways.

Anonymous said...

It is unclear to me what exactly these rules are trying to protect?
In elections people are the judge, not the judges. How would a judge feel if we made up rules of what they can hear in the courtroom?

I think this judicial complaint is similar but worse then the ad. The ad made the distinction that this was liberal vs. conservative but the complaint is made to embarrass and smear.

Tell me something Gableman did wrong on the bench, not this nonsense of what he did as a politician.

Billiam said...

Thanks, Mr. Rick. I was never completely clear on that.

Anonymous said...

If he lies to get onto the court, what's to stop him from violating ethics once on the court? You all in Wisconsin seem to have a difficult time finding credible and qualified contestants for your high court races.

Anonymous said...

Billiam raises a very interesting point. Certainly judges are subject to a variety of restrictions on their First Amendment rights. In Wisconsin, a judge can't even be a member of a political party (SCR 60.06(2)), although that rule may itself be unconstitutional, as I believe at least one Milwaukee County Circuit Judge is arguing. By conventional First Amendment standards, that restriction violates a core right of association. More obviously constitutionally, judges are prohibited from being rude or abusive, for example (SCR 60.04) -- although the First Amendment protects that speech in other contexts. To what extent can the restrictions that appropriately govern the speech of judges limit the speech of judicial candidates? If a judicial candidate said the kinds of things Mr. Cohen put on his jacket ("F*** the Draft") in Cohen v. California, could he (or she) constitutionally be penalized for that?

Anonymous said...
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Rick Esenberg said...

Anon 9:42

I have to enforce some standards here. I hardly think it is shilling for Justice Gableman (who you referred to by a name worthy of an elementary school playground) to say that he ran an ad that, in my view, implied a set of facts that are false.

Anon 6:16

A federal district court held that the prohibition on joining a political party is unconstitutional. What makes this case more difficult is that it involves the regulation of core political speech. There is going to be a natural reluctance on the part of judges to be arbiters of campaign speech. Whether the Gableman case is clear enough to overcome that reluctance remains to be seen.

Anonymous said...


Mercifully there's only one them.

Anonymous said...

What does Herr Professor think about this recent exchange between a reporter and Gobble-Gobble-Gableman's lawyer?

Reporter: "Let me ask you first of all, [regarding] the contention from [the Wisconsin Judicial Commission], that it really hinges on that final statement, 'Mitchell went on to rape again.' Without the argument that using the word 'loophole' implies that he was set free because of Justice Butler in some way, what does that final statement have to do with Louis Butler?"

James Bopp: "Well, it's the type of person that he was willing to represent, and the type of person that he was willing to find a loophole for. It had everything to do with Justice Butler's, uh, judgment, that he was willing to find a loophole to let such a heinous — or to relieve — such a heinous criminal from responsibility for his crime. Whatever that meant, in terms of finding a loophole.

"Justice Butler at the time, as a criminal defense lawyer, was urging that Mitchell get, be released. In fact the Court of Appeals ordered him to be released based upon this loophole. And so it has to do with [Butler's] judgment and his willingness to subvert our system of criminal, uh, bringing criminals into account. That's what it has to do with."

It is pretty telling that Gableman's lawyer apparently believes that public defenders "subvert our system of criminal justice."

Clutch said...

Everyone agrees that the ad contained a series of statements which, read in isolation, are true.

You know this to be wrong. Keen to avoid the implications of asserting a known falsehood, you will, I expect, retract this immediately.