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.