* It turns out to be Al Franken.
For those of you interested in the legal intricacies, I have a post on the Gableman recommendation up at the Marquette University Faculty Blog. But here at the old political blog, I'm wondering if those who are upset by the recommendation would really be happy with the implications of judicial review of political speech.
Chapter 60 of the Supreme Court Rules applies only to judicial candidates, but it is not inconceivable that legislatures would pass similar laws sanctioning false statements in other types of campaigns. In fact, Wisconsin has a law that makes it unlawful to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” That law was used for mischief last fall, although, at least under present interpretation, it does not provide a civil remedy.
At first blush, this may seem admirable. Why should there be a constitutional right to lie? The problem, of course, is that a lie is in the eye of the beholder. Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true. Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.
In the past, I have used the example of Obama's allegation that John McCain's health care plan would result in the biggest middle class tax increase in history. I think that was objectively false. McCain would have eliminated the tax deduction for employer provided health care, but provided a tax credit that would have eliminated the additional tax for all but a handful of people. Was this a knowing lie?
Here's another example. Al Franken and the Democrats are pushing what they call an "anti-rape" provision in a defense bill and accusing Republicans who oppose it of wanting to sweep allegations of rape under the rug. What it actually does is prohibit certain government vendors from entering into contracts with their employees providing for arbitration of certain types of cases including, but not limited to, allegations of sexual assault. But those allegations - because they involve criminal conduct - are probably not subject to an arbitration provision and are certainly subject to prosecution notwithstanding the validity of any arbitration provision. The whole thing is a very cynical attempt to mislead. Should it subject Franken to prosecution?
Perhaps we could develop a taxonomy of lies in which certain statements could be identified that are so clearly and objectively intentionally false that sanctioning them would not be problematic. But the narrower the definition, the easier it will be to avoid. More to the point, litigation then becomes - if it hasn't already - another front in a political campaign; one that continues (and that can be used to hobble a successful candidate) long after the voters have spoken.