Monday, April 27, 2015

If the John Doe doesn't bother you, you aren't paying attention

At Right Wisconsin, I have a post on the indifference of the mainstream liberty to the civil liberties issues raised by the John Doe investigation into conservative advocacy organizations. We can debate the niceties of the prosecutors' legal theories. There are, as I have written in the past, cascading levels of legal difficulty. The prosecutors are, at best, attempting to stretch state law - and both the state and federal constitutions - for all they're worth. But beyond the merits of the investigation, it is profoundly troubling that they have adopted tactics - both in seeking criminal penalties and combining strong-arm searches with John Doe secrecy - that are guaranteed to frighten speakers and deter constitutionally protected expression.

This is why I find the legacy media's relative silence startling. Imagine, for a moment, that this had been done to a newspaper or broadcast operation. Assume an early dawn raid on the Milwaukee Journal Sentinel's offices at Fourth and State in which reporters' files were carried away and editors were told to keep their mouths shut about what had been done to them. (The prosecutors here did contemplate going after broadcast journalists.) Our newspapers and broadcast stations would be apoplectic about the "chilling impact" on freedom of speech that such tactics would have. And rightly so.

Over the weekend, the prosecutors upped the ante. It was reported that Governor Walker questioned the constitutionality and the motivation of the prosecutors. In response, Milwaukee County District Attorney John Chisholm implied that Walker might be criminally prosecuted for criticizing the investigation and questioning the motivation of the prosecutors. “As to defamatory remarks,' Chisholm said, "I strongly suspect the Iowa criminal code, like Wisconsin’s, has provisions for intentionally making false statements intended to harm the reputation of others ....”

I am going to repeat that. The elected District Attorney of Milwaukee County actually suggested that someone who criticized him should be charged with a crime.

Let's start with the easy part. This is the type of statement that will get earn a law student a very bad grade in Constitutional Law. The question is not whether Walker was "right" or "wrong." At minimum, one would have to show that Walker made statements of fact (not opinion). At minimum, one would have to show, beyond a reasonable doubt, that he knew the statements were untrue or acted with reckless disregard of their truth and falsity. Even then, there remain serious constitutional questions regarding the criminalization of political speech.There is no way - not in this country - that such a prosecution could ever succeed.

But the problem here is larger than a single lawyer's understanding of constitutional law or appreciation for the First Amendment. Any lawyer who suggests that political speech should be criminally prosecuted might expect to be laughed at. But when that lawyer has the power to invoke the machinery of the criminal law, it is no longer a laughing matter.

Cross posted at Purple Wisconsin

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