I don’t think the answers are so clear cut, but I recognize that others do. It will certainly be interesting to see how this all plays out.

Regarding overbroadness, Andrew Golden’s question seeking examples of protected expression which the SCR would improperly penalize is crucial. Courts normally dismiss bizarre examples; so barring examples of reasonably likely expressions that should be protected but fall under the SCR, the overbreadth claim will fail.

Claims that a statute’s regulation of expression is “overbroad” usually start with the admission that one’s expression DID fall legitimately under the regulation, but that others might be caught innocently. If one claims to be innocent of misbehavior, overbroadness is an inapt defense

Claims of vagueness are related to statutory notice, Gableman must claim that he could not have known his lies were sanctionable. If he didn’t know that his lies were, then he’s all but admitting incompetence. If Gableman argues that the meaning of the SCR is uncertain then one wonders what he’ll do when faced with something actually difficult.

If his claim is that “the rule is vague because it allows the Commission to pick and choose which speech ‘misrepresents’ and which speech does not in an arbitrary fashion” he is making an “abuse of discretion” claim. Good luck with that. I am not in a place where I can look it up but I think SCR 60.06(3)(c) has been on the books for a number of years, and that Gableman may be the only Supreme Court Justice charged with a violation of it. Given the uniqueness of the charge against him and the uniqueness of his conduct (the ad), Gableman will have a hard time showing that others have violated the statute and escaped charges before him; thus demonstrating arbitrariness on the part of the Commission. Short of that, his claim should fail.

You characterized my argument (above) as: “judicial code provisions, even if unconstitutional, should nonetheless be applied because the judge essentially consented to their enforcement by running for office.” That’s not quite right. If a person seeks a judicial position, then they consent to whatever reasonable rules constrain those who do so. The SCRs are published rules under which the Court system in Wisconsin has been operating for some time. They are reasonable and narrowly tailored for a legitimate and important (if not compelling) purpose.

You ask fairly: “Can one consent to the enforcement of an unconstitutional rule?” The answer is: Yes, of course. When someone accepts a position with a non-compete clause, they are consenting to a rule that would be unlawful absent their consent. Similarly when you buy a cell phone or a laptop, you sign a purchase agreement that almost always binds you to mandatory arbitration which would be unlawful absent your consent. We are all free to consent to waivers of rights in exchange for purchases or employment opportunities.

“Is simply running for office a clear enough statement of consent?” I don’t know how it could be clearer. Since running for this office is no simple thing, since the rules have been in place for a long time, since the very nature of the position involves the enforcement of rules, it is odd to claim afterwards, “Well, I really didn’t want to work under these conditions.” The SCRs do not place an unconscionable burden on Justices, especially given the power, privileges and stature that go with the position.

How Gableman could claim he went through all the trouble to run for the Supreme Court but was unaware of the SCRs or that he could “announce” his objection to them by violating them is beyond me. Such claims don’t work for the rest of us, why should they work for him?

I don’t know what your gut tells you, Nathan, but my gut tells me the man does not belong on the Court. This is not about ideology, it’s about morality and judicial fitness.

Look, I support constitutional challenges as much as the next guy. But I have a hard time swallowing a claim when it’s being done as an out, as this clearly is. Judge Gableman didn’t do this thinking it was acceptable and then finding out it wasn’t; he did this knowing damn well it wouldn’t be, and is now challenging the law in the hopes he can get away with it. For that, he deserves to lose and subsequently have the book thrown at him.

SCR 60.06(3)(c) prohibits a candidate for judicial office from “knowingly or with reckless disregard for the statement’s truth or falsity misrepresent[ing] the identity, qualifications, present position, or other fact concerning the candidate or an opponent.”

Justice Gableman, through Atty. Bopp, argues that SCR 60.06(3)(c) is unconstitutional because it is overbroad and vague. The rule is overbroad, he says, because it prohibits protected speech as well as defamatory speech. Thus, while you’re right that defamatory speech is generally not protected Andrew, Justice Gableman argues that the rule prohibits something more. Further, Justice Gableman argues that the rule is vague because it allows the Commission to pick and choose which speech “misrepresents” and which speech does not in an arbitrary fashion. The answer to this challenge is also anything but clear cut.

If the objection to the advertisement is that it was simply ill-advised, you’ll find me in agreement. But arguing that Justice Gableman should be punished under a rule whose constitutionality is fairly in question without mentioning, let alone addressing, any of the constitutional questions raised by the rule seems premature.

I also feel it necessary to respond to Sean’s argument that judicial code provisions, even if unconstitutional, should nonetheless be applied because the judge essentially consented to their enforcement by running for office. I find this argument on its face to be wholly unpersuasive and it raises a significant number of questions. Can one consent to the enforcement of an unconstitutional rule? Is simply running for office a clear enough statement of consent? Is that consent irrevocable such that a judge cannot later challenge the rule? I don’t have a definitive answer to any of these questions, but I know what my gut tells me.

I agree that as long as we have judicial elections (though, would that we could remove them!), we have to allow for campaigning and solicitation of donations. However, that still doesn’t excuse Judge Gableman’s reprehensible comments in that ad, and I for one believe he needs to be punished for that.

We don’t get it, why should they?

If someone volunteers to be a judge with preexisting limits on their free expression, why not enforce that?

And is it not amazing that a sitting Justice of the Wisconsin Supreme Court defends his misrepresentations (I consciously avoid the “L” word) on the grounds that misrepresentation is OK? Sigh … We live in a shameless time.