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A win for the First Amendment in Wisconsin
Published on July 1, 2010 03:45 PM
Category: False Statements
Yesterday the Wisconsin Supreme Court rejected demands by the Wisconsin Judicial Commission that Supreme Court Justice Michael Gableman be punished for political speech he made during his campaign in 2009.
The case was an important one, testing the proposition that the government cannot be in the business of determining the truth or falsity of statements made by candidates during campaigns. That is supposed the prerogative of the voters, not government.
CCP filed a brief in the case, Wisconsin Judicial Commission v. Michael Gableman, arguing that it was impermissible for the government to punish a political candidate for statements made during the campaign. As CCP's press release noted at the time,
Opponents of Justice Gableman are seeking to have the state punish him for speech he engaged in during his campaign for the Supreme Court.
"This action against Justice Gableman is a punishment for political speech, which the First Amendment does not permit," said CCP Vice President Stephen M. Hoersting. "The Court's decision on this matter will set a precedent for whether the government can determine which political speech is true and which is false, and punish those who fail to adhere to government-approved truth in their campaigns.
"The prospect of seeking sanctions and retribution for political speech could have a chilling effect on a free exchange of ideas in the electoral process," Hoersting said. "The Court should dismiss the idea of government truth panels and let voters decide what speech is appropriate."
Yesterday the Wisconsin Supreme Court adopted CCP's position and ruled 3-3 in favor of Gableman and the First Amendment (four Justices needed to concur in order to punish him for his speech), dismissing the charges. As the controlling opinion noted,
The campaign advertisement that gave rise to the Commission's complaint against Justice Gableman and the governmental rule... by which the Commission seeks to punish Justice Gableman for that advertisement must be examined according to the commands of the First Amendment. As the United States Supreme Court has explained, the First Amendment applies to judicial elections and to canons of judicial conduct that states seek to apply to candidates in judicial elections. Republican Party of Minnesota v. White, 536 U.S. 765, 788 (2002). We acknowledge that the advertisement run by Justice Gableman's campaign committee was distasteful; however, the First Amendment prevents the government from stifling speech, even when that speech is distasteful...
As has been noted elsewhere, Wisconsin is among the most hostile states in the country for free and unfettered political speech as protected by the First Amendment (see "Turning Wisconsin into a First Amendment-free zone"). By a 3-3 vote, the Badger state just managed to avoid going even further down the road of government censorship of unwelcome and controversial political speech.
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