There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for ”finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that ”the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence.  It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal.  We don’t, in common discourse,  isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding  seems itself to be a function of his willingness to apply the language of that Code in a more expansive way. 

Judge Fine concedes that demonstrably false statements are not constitutionally protected. But suggests, however, that the truth and falsity of political speech as nonjusticiable, i.e., not for judges to decide. (Indeed, he also seems to believe that the legislature could not pass upon the question either, saying that the election is the only forum in which truth and falsity can be assessed.)

I suppose that, in some metaphysical sense, there may be a distinction between constitutional protection of speech and the constitutional proscription of the examination of such speech by any arm of government, but, if there is, it is passingly small.  Constitutional protection of speech is some measure of freedom from state interference.

Indeed, Judge Fine seems to be saying that the problem is with the rule and not necessarily the idea of sanctioning the speech at issue here. Thus, he emphasizes that he is holding the rule prohibiting knowingly false statments to be facially unconstitutional.

He clearly regards the prohibiton of “false” statements to be vague, i.e., he wants more guidance for courts than a simple admonition against knowing falsity before permitting sanctions on political speech.

But what would that be? There is certainly no blanket First Amendment protection against the judicial assessment of the truth and falsity of political speech. In the defamation context, the Supreme Court has permitted the imposition of liability for false speech that is defamatory if it is made with knowledge, or in reckless disregard, of its truth and falsity. There are those who argue – and with good reason – that the assessment of the veracity of political speech should not go past the defamation context, but that’s not what Judge Fine says – at least not in so many words.

It may be that Judge Fine wants a more objective standard of truth and falsity than one in which a tribunal may interpret a statement to identify the false implication of a collection of literally true statements. If that’s so, then  doesn’t his his view elide into that of the majority? They read the rule strictly to require finding an explicit and literally false statement. Perhaps he would uphold a rule that required a finding that a discrete claim is literally false.

The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent “pro-criminal” or displaying photos of he sex predators that he did not send away for a long enough time.

The bill doesn’t restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These “matching” public funds are capped at three times the public financing benefit, e.g, $900,000 for the general. 

I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate’s speech rights.

This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.

But I don’t think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state’s interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy – at least during election season – to be funded with regulated contributions.

But Wisconsin hasn’t done that, suggesting that it does not see express advocacy funded with “soft money” as presenting a threat of corruption. If that’s so, then it’s interest in providing additional public funding in response to independent express advocacy is – presumably – to level the playing field.

The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions – perhaps eliminating the distinction between express and issue advocacy by independent parties.)

Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don’t like. That’s what most of them do already.

So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage “issue advocacy” which, in practice, means attack ads.

Virtually all efforts at campaign finance “reform” are swamped by their unintended consequences. Money, like water, seeks its own level.

But, in fairness, although the bill will do nothing about independent expenditures, it’s not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn’t buy much in a state wide race, there will be candidates for judicial office who can’t raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.

But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.

So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge’s campaign committee “no.”) But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.

Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.

The moles win again.

Cross posted at Shark and Shepherd.

I knew very little about the organization before agreeing to do the run, and in my post-race googling I discovered that Justiceworks is a co-sponsor (along with the Portage County Bar Association and the University of Wisconsin-Stevens Point) of an upcoming symposium entitled Judicial Elections:  Navigating the Collision Course (note to lawyers: 7 CLE credits approved).  The conference will take place on September 17, 2009, and the lineup of presenters is impressive, including Bert Brandenburg, Executive Director of the national Justice at Stake Campaign; Thomas J. Basting, Sr., who served as President of the Wisconsin State Bar Association in 2007-08; and Wisconsin Supreme Court Justice Shirley Abrahamson.

The conference brochure promises that the program will “raise awareness about the significant issues confronting the State of Wisconsin in its judicial elections,” noting that

Over the past several years, the Wisconsin Supreme Court elections and other state judicial elections have depicted the concerns this conference intends to address, the battle between the First Amendment of the Constitution and free speech versus concerns of judicial independence and an individual’s right to due process.

The presentations look really interesting; for instance, Brady Williamson will give discuss recent US Supreme Court decisions including the June decision in Caperton v. A.T. Massey Coal Co., Inc., in which a split court held that a state supreme court justice’s failure to recuse himself from a case in which the defendant was a corporation, the board chairman and principal officer of which was a primary contributor to the justice’s campaign.  Other presentations will include a discussion of  ”The Role and Responsibility of the Media” with respect to judicial elections, and a panel discussion entitled “Approaches to Change–Caperton and Beyond.”

The time is ripe for discussion of Wisconsin’s judicial elections, particularly in light of Caperton, the full implications of which are not yet clear. As you probably know, perceived failings in Wisconsin’s system of judicial elections led the Wisconsin Supreme Court to appoint a Commission on Judicial Elections and Ethics in 1997.  Unfortunately, that Commission’s final report remains useful background reading for the upcoming symposium, because the problems discussed there persist, such as the tensions between maintaining  a sense of judicial impartiality and independence while also respecting the First Amendment.

Had the case gone to trial, it could have raised complicated First Amendment questions relating to the ability of a municipally owned stadium to regulate unpopular political speech and symbolic gestures on the part of its patrons.

The ejected fan, Bradford Campeau Laurion, shown above, a 29-year old resident of Queens, New York, was represented by the New York Civil Liberties Union. Under the reported terms of the settlement Campeau received $22,000, $12,000 of which went to the NYCLU for legal services.

Although the details of the incident are still a matter of dispute, Campeau has consistently asserted that he was not trying to make a political statement and that he left his seat during the playing of God Bless America only because he was desperate to go to the bathroom after drinking two beers. Campeau was attending the game with a friend who was a Yankee season ticket holder.

When Campeau left his seat he was confronted by a New York City police officer who insisted that he would have to remain in his seat until the song was finished. Campeau claims that he told the policeman, “, ‘I don’t care about God Bless America. I just need to use the bathroom” and that in response to that statement the policeman and one of his colleagues pinned his arm behind his back and escorted him to the front entrance of Yankee Stadium where he was evicted into the street. According to Campeau, on the way out the policemen told him to “get out of their country if I didn’t like it.”

The officer told a different story, insisting that the ejection had nothing to do with the song. According to his account, Campeau was observed “standing on his seat, cursing, using inappropriate language and acting in a disorderly manner, while reeking of alcohol.” According to the officer, he “decided to eject him rather than subject others to his offensive behavior.” The accuracy of this description is disputed by Campeau and his friend, the season ticket holder.

The settlement contained no confession of liability and, in fact, included a stipulation whereby the plaintiff agreed that the City and the Yankees had the right to regulate the conduct of fans during the singing of God Bless America and at other times. Although Campeau insisted that he was unaware of the policy, the Yankees had, prior to the game Campeau attended, adopted a policy of requiring patrons to remain in their seats during the playing of the National Anthem and God Bless America.

In spite of this concession, New York Civil Liberties Union Executive Director Donna Lieberman pronounced that “[t]his settlement ensures that the new Yankee Stadium will be a place for baseball, not compelled patriotism.” Christopher Dunn, NYCLU associate legal director and lead counsel in the case added: “Neither the Yankees nor the NYPD can force people to engage in acts of political loyalty. As a result of our lawsuit, fans can now go to a ballgame at Yankee Stadium knowing they will not be subjected to NYPD-enforced patriotism.”

A more cynical observer might conclude that the point of the case is that one should plan on going to the bathroom in Yankee Stadium during the playing of God Bless America. The bathrooms should be easily accessible, and if you get thrown out for leaving your seat you can cash in your ticket for $10,000.

In Coulee Catholic Schools, the Court was asked whether a first grade teacher in a Catholic school was subject to the “ministerial exception,” meaning that the school’s religious freedom to select its own ministers and leaders barred her age discrimination claim. Half the courts in the country that have considered this question concluded that a religious school teacher is engaged in sufficient ministry to be included, while half have said that such a teacher is not. The Wisconsin Supreme Court decided that the religious school teacher in this case did engage in and lead sufficient religious activities to fall within the exception.

As the product of seven years of Catholic primary school, and the son of a longtime Catholic schools teacher, I’m convinced the Court got this determination right. Catholic school teachers lead prayer, organize Mass, teach the Catholic faith, model a moral and devout life, and incorporate religious principles into the “secular subjects” they teach as well. A religious organization should have the religious freedom to select those who communicate its faith to the rising generation free from state interference.

In addition to Professor Esenberg’s observations, let me highlight three other key points from the case:

1. Robust Religious Liberty Protection in Wisconsin. The majority’s discussion of the Wisconsin Constitution, Art. 1, Sec. 18 in paragraphs 58-66 describes a very strong protection for the free exercise of religion and conscience in Wisconsi, following the Court’s precedent in State v. Miller. Looking at the text of the clauses, the Court concludes, “It is difficult to conceive of language being stronger than this.”

This language could be important in future cases.  For instance, if future challenges were filed in the health care conscience context after the Compassionate Care for Rape Victims Act or the Madison Surgery Center decision.

2. An emphasis on constitutional text. Since the mid-1970s, the Wisconsin Supreme Court has relied heavily on legislative and popular history when interpreting the Wisconsin Constitution. In this case, the majority cited the standard three-factor test from Beno, but emphasized the importance of text as the first and foremost source. I have been working on a law review article regarding interpretation of the Wisconsin Constitution (more on that soon), and this decision definitely represents a positive step towards a more text-based interpretive method.

3. Elections matter. Justice Gableman wrote the majority opinion in this 4 to 3 decision. It’s quite probable that if Justice Butler were still on the Court, the decision would have gone the other way. As the Wisconsin Family Council noted on its blog, the closing paragraphs of the majority opinion contained an important line: “As a court, our job is to interpret and apply the law the people adopt, not to make it up in accord with ours or society’s current policy preferences.”  This rings especially true when placed alongside Justice Ziegler’s concurrence last week in VFW Post 2874.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, “legislating from the bench.” Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization’s religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school’s decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a “loophole,” although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court’s criminal law decisions. 

People use the term “loophole” in connection with judicial decisions to imply that the principle of decision is either unimportant or not intended for the purpose to which it has been put. Constitutional guarantees, whether in the criminal law or religious freedom context, are never unimportant and often the question of whether they are or are not intended in the way that the Court has used them is precisely the issue before the Court. I may believe that the Court has misinterpreted constitutional protections for criminal defendants, but it is not helpful to think about loopholes. Although the use of that term in campaign literature might communicate my substantive conclusion, it really doesn’t help me make it.

Third, it is also wrong to suggest that the Court modified its own precedent or preferred the decisions of courts from other jurisdictions to its own. There was no controlling state Supreme Court precedent on the issue. There was a Court of Appeals decision that is not consistent with the method adopted by the Court but that is hardly binding on the Supreme Court. What the Court did was adopt a “functional analysis” approach to the ministerial exception asking whether the duties of the employee is questions are sufficiently “important or closely linked” to “the fundamental [religious] mission of [the] organization.” This test is in distinction to the test used by most courts which is to ask whether the employee’s “primary duties” are religious.

Fourth, it would be fair to say that the Court’s decision demonstrates at least a favorable nod in the direction of New Federalism, i.e., the idea that state constitutional provisions might be interpreted differently than parallel federal provisions. Although it does not appear that the Court’s decision turns on that (and the federal and state provisions at issue here are not identically worded), it is unsurprising. Wisconsin has previously interpreted its freedom of conscience clause more broadly than the United States Supreme Court has interpreted the free exercise clause.

Fifth, Justice Crooks suggestion in dissent that the Court’s decision calls into question its prior decision in Jackson v. Benson, upholding the constitutionality of the school choice program seems rather weak. While Coulee Catholic certainly recognizes the idea that religion is suffused throughout the curriculum of at least certain religious schools, Jackson was not based on any assumption to the contrary and the fact that religious schools are religious does not mean that vouchers to students attending those schools violate the Establisment Clause. In fact, the Supreme Court in Zelman v. Simmons-Harris held that it does not. Thus Jackson could be in trouble only if the state Supreme Court were to hold that the state constitution’s anti-establishment principle is somehow broader than that of the First Amendment. That has not traditionally been the view of the state Supreme Court.

Justice Crooks seems to think that the idea that the state may not interfere with what is “important or closely linked” to the religious mission of schools calls into question a provision in the school choice program requiring that students be permitted to “opt out” of religious activities (as opposed to subjects that are secular, even if taught in service of the school’s religious mission). Perhaps it does. But there is little reason to believe that the outcome in Jackson turned on the opt-out provision. In addition, while Coulee Catholic certainly suggests the rather obvious notion that the state could not compel religious schools to permit students to opt out of religious activities, it is far from clear that such a requirement could not be a condition of state vouchers. That gets us into messy law regarding, among other things, unconstitutional conditions and, suffice it to say, the outcome is hazy.

Sixth, I think that the Court probably got the legal standard right. Even employees of religious organizations whose primary duties are not religious may play a sufficiently important role in their employer’s religious mission that decisions regarding their hiring or firing are inextricably tied up with that mission such that the state could not examine these decisions without having to assess religious judgments.

Cross posted at Shark and Shepherd

Plaintiff Gary Mitchell had a job filming the meetings of his local Board of Commissioners and he also volunteered at the local public access television station. Due to a brouhaha over indecent programming, the Board of Commissioners had proposed to cut public access funding. Commissioner Rhonda Storms was leading the morality crusade, so Mitchell decided to have some fun at her expense. During the open comment period of a supervisors’ meeting, Mitchell took to the podium wearing a beret with a thunderbolt on top and announced that he was a member of a fictitious political support group called the Thunderheads. He then gave a speech praising Storms and concluded with a question: given her preoccupation with women’s body parts, did she prefer the nickname “Vagi” or “Gina”?

I perhaps can understand the efficiency argument in this case (though it is certainly not a slam dunk), but I don’t agree at all that this is not speech on a matter of public concern.  As Robert [Loblaw] points out, that would be like saying Jonathan Swift’s Modest Proposal was really about cannibalism.

The 11th Circuit found that Mitchell’s speech was not a matter of public concern, and even if it was, the efficiency concerns of the employer in ensuring co-worker harmony outweighed any First Amendment rights Mitchell would have had.

Well, the humor of the federal courts has not improved in three years.  Not even in my hometown. 

Witness Milwaukee Deputy Sheriff’s Association v. Clarke, No. 08-3298 (7th Cir., July 21, 2009).  The case also concerns sarcastic remarks by a public employee:

The dispute in this case is what one’s mother might have in mind when she imparts the classic phrase, “Sticks and stones may break my bones, but words will never hurt me.” Apparently, Milwaukee County Sheriff David A. Clarke, Jr., did not take this childhood lesson to heart. In the summer of 2005, Sheriff Clarke posted on a roll-call bulletin board a quote that at least one deputy, Michael Schuh, considered an offensive challenge to his and his fellow officers’ courage. Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke’s courage. Sheriff Clarke, apparently afraid that words would hurt him, quickly responded by reassigning Schuh to a newly created mission in one of Milwaukee’s most crime-ridden neighborhoods . . . .

We are sympathetic to Schuh’s position, and we consider Sheriff Clarke’s response against Schuh to be excessive. But there are limits to the First Amendment’s protections when a public employee speaks, and because we find that Schuh was speaking on a matter of purely private concern, we agree with the district court that summary judgment in Sheriff Clarke’s favor was appropriate.

The statement, you wonder?

Deputy Schuh’s article mirrored Sheriff Clarke’s quote from Deuteronomy, with a few additions that Moses never uttered while outside of the Promised Land:

Union Member’s Response:

If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you’re out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).

Now, the comment was clearly made to criticize the Sheriff’s use of police personnel for his own personal business — what could be more about public concern than how the taxpayers money is being used by the Sheriff?  Was the mere sarcastic nature of the remark dispositive in suggesting that the interaction between the Sheriff and his deputy was purely personal?

If the court had allowed this dispute to survive the Connick matter of public concern test, the next step would have been the Pickering balance of the public employee’s right to free speech against the efficiency concerns of the police department.

My own take on this is that it is unlikely that this episode caused that much upheaval in the department since the Sheriff’s practices were already well known. I would have been inclined to find the balance for the employee and held the Department at least liable for the Sheriff’s conduct (whether the Sheriff could qualify for qualified immunity might be a closer question as far as individual liability).

In any event, and as I said three years ago, “One does not need to speak seriously in order to make one’s publicly important point.  Sometime satire is much more powerful and makes that point much more effectively.”

Hat Tip: Victor Forberger

Cross-Posted on Workplace Prof Blog.

So said Woody Allen (as Isaac Davis in Manhattan) in response to the suggestion that a Nazi march was “devastated” by a mocking piece in the New York Times.

In Sunday’s  Times, there was an article about a group calling themselves “The Nationalist Socialist Movement – Springfield Unit.”  It has been allowed to participate in Missouri’s adopt-a highway program. Under the program, a group agrees to pick up trash along a stretch of roadside and, in return, a sign is erected at the onset of the “adopted” segment, acknowledging their participation. The Nazis apparently pick up litter in full regalia. 

What to do? Allen’s character suggested picking up bricks and baseball bats and going to “really explain things to them.” Let’s take that off the table.

There is no question that the Nazis have a right to participate. The Supreme Court has held that groups may not be excluded from such programs on the basis of their political beliefs. That case (also arising from Missouri) involved adoption of a highway by the Klu Klux Klan. State officials responded by renaming the road after Rosa Parks.

Legislators have proposed calling the highway on which the Nazis collect trash, the Abraham Joshua Heschel Memorial Highway after the prominent rabbi and philosopher.Although Heschel’s daughter is not happy with the proposal (and her wishes are entitled to great consideration), I sort of like it. Absent the preferred option, i.e., that such people not exist, there is something about having Nazis pick up the garbage on what is, symbolically, a Jew’s road. “Excuse me, there, Horst, but I think you missed that Toblerone wrapper. Be a good little Aryan and pick that up for me.”

I appreciate that people will look at the propriety of such a response in different ways. One argument would be, I suppose, that to do anything more draws attention to the Nazis. But fanatics have a way of drawing attention to themselves. I prefer to see honoring Heschel in the face of these jamokes as the wages of hatred. The Nazis are marginalized and Heschel, who barely escaped the charnel house, is honored.

But this is the faculty blog so let’s explore a legal point.

Over at PrawfsBlawg, Helen Norton  reprises an argument from one of her papers, suggesting that such programs are structured in a way that makes them a donation program in which the  state may or may or not acknowledge participation. In that case, she says, the “government speech doctrine, i.e., the notion that government’s speech on its own behalf is exempt from first amendment scrutiny, would apply. She may well be right.

But should there be a first amendment limit on government speech? Might there be circumstances (not this case, for sure, I’m just using it as a jumping off point) where the government’s speech overwhelms the speech of others in a way that raises first amendment concerns?

It’s easiest to imagine the possibility in the context of an election. Imagine that the government chooses to conduct a massive public education campaign on, say, the value of a single payer health care system in the midst of an election where the issue is highly salient and divides the parties and presidential candidates. What if massive resources are brought to bear in response to protected speech, e.g., in response to a candidate’s criticism of the administration’s policies with respect to the detention and interrogation of suspected terrorists captured abroad, the government launches a WWII style propaganda campaign?

Of course, such propaganda campaigns existed and are not generally thought to present constitutional problems. The idea is that the remedy for speech that the public does not like is political.

But what if the government uses its unmatched resources to skew the political process?

Wasn’t Brown v. Board of Education driven by empathy, not just the weighing of legal merits?  How about Meyer and Pierce?  Is the recognition that “the child is not the mere creature of the state” as a rationale for a judicial decision driven solely by legal merit, or something else?  And what about abortion?  There are lots of Supreme Court decisions that reflect weak constitutional interpretation, but calls for the Court to overturn Roe v. Wade are not just about remedying bad interpretation, are they?  Aren’t we also asking judges to empathize with the unborn in recognizing the need to overturn Roe?

Putting aside Roe (which I think is all about weak constitutional interpretation), Rob’s point goes to the idea that I was trying to explore yesterday about cabined empathy. It can be, to borrow Ed Fallone’s phrase again, useful in reasoning from undisputed (or at least a judge’s accepted) first principles. It isn’t that empathy creates an obligation of equal protection, but it does help us see the flaw in Justice Henry Billings Brown’s (who remembers that name?) assertion in Plessy that the badge of inferiority arising from Jim Crow exists “solely because the colored race chooses to put that construction upon it.” 

Although I have argued against Justice O’Connor’s endorsement test in Establishment Clause cases, empathy might help us see that the harms stemming from government endorsement of religious principles flow as well from the government’s disapproval of those principles.

The endorsement test is a useful example, I think, because it also demonstrates the danger in interpretive methods that do not sufficiently bound empathy and the predilections of the judge. As was true of so much of Justice O’Connor’s jurisprudence, the test maximizes judicial discretion. It tells the judge to prohibit endorsement but then defines the concept in a way that alows the judge to completely contruct its presence or absence. The court is not to look at whether real people perceive the endorsement of religion but whether a person of the judge’s imagining – someone who is familar with the text of the first amendment and the history and purpose of the challenged practive – ought to perceive. Not surprisingly the test came to be known by the acronym of WWSD – What Would Sandra Do?

Maybe Catholic legal thought has something to tell us about this as well. Subsidiarity can be a maddeningly elastic notion, but doesn’t it remind us that the courts are only one of the institutions ordained to create justice and that they ought to operate within their sphere of authority. If that’s so, then using, in Orin’s phrase, any “appreciable legal ambiguity” to rule in a way that “furthers whatever normative vision of the law that the judge happens to like” is problematic from the perspective of Catholic legal theory.

To be sure, the report is an embarrassing piece of work, essentially saying that there are right-wing groups who feel very strongly about a number of issues and, even thought there is no evidence that any of them are planning any violent or unlawful activity, . . . you know, they could because there has been domestic terror associated with the right wing in the past. What is particularly disturbing about the report is the broad brush with which it treats “right-wing” groups. It takes little or no care to distinguish groups that are seen to be, in the report’s words “anti-government” or opposed to “abortion” or “immigration” from those unnamed and, apparently, so far nonviolent groups that might suddenly become terrorists. There is little guidance for law enforcement agencies receiving the report. It conveys little information other than the supposed need to monitor “right-wing” political groups. It certainly could move some official somewhere to questionable conduct, as it apparently already has.

But is the report unconstitutional? I hardly think so. Certainly the government can criticize certain groups and the mere possibility that this criticism might be followed by unconstitutional behavior can’t provide the basis for a constitutional claim. Shouldn’t there be more than words before relief is warranted?

I think this case is DOA. But it prompts some broader musings. In a piece that is forthcoming in the William & Mary Bill of Rights Journal, I argue that, while we ought to abandon the endorsement test in Establishment Clause jurisprudence, there may nevertheless be some level of hostile government speech directed at a group of believers or nonbelievers that amounts to a constitutional violation. I offered as an historical example the Nazi policy of Gleichshaltung which villified Jews as an adjunct to and in preparation for more coercive and directly repressive policies, including, eventually, extermination.

That is, of course, an extreme example, but might some lesser form of state condemnation legitimately raise constitutional concerns? And might that same principle apply to government speech singling out groups and individuals on the basis of their speech and beliefs? I don’t believe that the DHS report comes close, but what of a concerted government effort to brand opponents to a war as unpatriotic and subversive and potentially traitorous? Can it rise — in the absence of any further action — to a violation of the First Amendment?

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that — observing that the restriction may have had the “quaint” intent of protecting judges from the indignity of dialing for dollars -  but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct, and restrictions on contributions have been far more likely to be sustained.  It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one’s partisan affiliation (or, as in White, one’s position on certain issues of public interest).  Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd.

I also liked State v. Miller, which asked the question of whether the Amish could be fined for failing to display the bright orange “slow moving vehicle” sign on their buggies despite the fact that its display was inconsistent with their religious beliefs. What I remember most about that case was that on the day of the oral argument, the Wisconsin Supreme Court hearing room was filled with Amish men with their dark clothing and long beards, listening intently to the arguments about the First Amendment. It was a very different scene than we were used to seeing (lawyers in dark suits, white shirts and red ties).  In writing that opinion, I watched a piece of video evidence which showed a very slow moving buggy going off in the distance at night time with white fluorescent tape on the back. The video seemed to last forever . . . but the tape remained very visible. Understanding how what seemed to be a simple factual case intertwined itself with the First Amendment led to a fascinating exposure to the beliefs of the quiet Amish culture. The Amish prevailed on that case because the tape was a reasonable alternative.

Finally, I want to talk about a case that I often refer to when teaching groups about the work of a supreme court justice and an impartial court. In the last ten years, there is a lot of discussion about the partisan nature of decision-making. Many people assume judges take their agendas to the court and then vote accordingly when the cases come up. I often get asked whether a particular judge is a “liberal judge” or a “conservative judge.”  The case I like to tell them about is State v. Matthew Janssen, which was originally heard in Appleton, Wisconsin. Appleton is a very politically conservative community. Mr. Janssen and his friends stole a number of American flags. He defecated on one of them, leaving a highly offensive note in its place. Well, as you imagine, the community was understandably up in arms about this horrible treatment of the flag. The state charged Mr. Janssen with a violation of the Wisconsin flag desecration statute. The trial judge, courageously and despite much public outcry, held that the statute was unconstitutional. The case was appealed to the Court of Appeals, where three judges affirmed the circuit court’s holding. The case then came to our court.

Justice Jon Wilcox was assigned the case and wrote the unanimous decision. Justice Wilcox, often classified as a “conservative” justice, obviously was personally conflicted in writing the decision. He wrote the unanimous opinion which held that the lower courts correctly concluded that the statute was unconstitutional. What is helpful for teaching purposes is that, a reader can sense Justice Wilcox’s pain  in reaching a decision that was legally correct but morally offensive to him. He wrote:

Having reached this conclusion, we pause to note the extreme difficulty inherent in writing a decision such as this . . . . Our final assessment of Janssen’s behavior is no different from our initial, instinctive reaction to the facts of this case: we are deeply offended. Janssen’s conduct is repugnant and completely devoid of social value. To many, particularly those who have fought for our country, it is a slap in the face. . . . But in the end, to paraphrase Justice Frankfurter, we must take solace in the fact that as members of this court, we are not justified in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their regard. . . .

That unpopular decision made me very proud to be a member of that Court. Despite personal feelings, politics, or desires, the justices did what they had been elected to do. They applied the law, despite public opinion. That is what being a judge is all about.

Some have read Good News Club (incorrectly in my view) to recognize a distinction between worship and other forms of religious uses. In this paper (forthcoming in the Mississippi Law Journal), I draw on the theology of Christian worship (which I think broadly applies to many other religious traditions) to argue that worship, while sometimes seen as noncommunicative and deliberative, is, in fact, both and ought not to be excluded from broadly defined forums.

Here’s a related question.

Of course, one response to the inability to exclude worship and other forms of religious worship is to close or limit the scope of the forum. That’s apparently what happened here (although the proposed use was not worship). A public library that made its facilities available to the community for a variety of uses refused to make it available to someone who wanted to give what I take to be biblically themed financial planning. They were sued and responded by limiting its facilities to library uses.

I wonder (and I do not pretend to know or even have a view on the matter) whether there ought to be a remedy for this. Is it like Palmer v. Thompson, in which a sharply divided Court rejected a challenge to a town’s decision to close municipal swimming pools rather than integrate them? What if a plaintiff could establish a “discriminatory” purpose? What would that amount to in a case like this? Given that the Court has held that it is viewpoint discrimination to exclude religious uses, does a decision to close a forum for the purpose of preventing a religious use permissible? Or is this case like Locke v. Davey, in which the state can refuse to provide a subsidy to religious uses (something which is hard to reconcile with Good News)?

My instinct is that a municipality can close its forum although I am not sure that many will choose to do so. What is less clear to me is how close a question it can be made to be.

Cross posted at PrawfsBlawg.

In response to the Hines piece, Patrick McIlheran points out an obvious problem. Under current law, it is unclear that schools could effectively incorporate religious perspectives on morality into values education. (There is some room for schools to teach “about” religion, but, in the type of normative education that President Hines is calling for, that distinction — and the lack of clarity about just where it ought to be drawn — would probably preclude any deep inclusion of religious perspectives.)

Marquette alum Tom Foley (the blogger known as “Illusory Tenant”) can’t wait to dismiss Patrick as a “tin pot philosopher,” but he is wrong to do so for at least two reasons.

First, our current notions of disestablishment require neutrality between religion and irreligion and, in the two most frequent doctrinal formulations, forbid the state from advancing or endorsing either. Teaching values and morality while excluding the religious perspectives that believers contend are indispensable to those concepts will almost certainly be perceived by believers as inhibiting religion and advancing or endorsing irreligion. While scholars and courts have, from time to time, suggested that they “should not” have that perception, that suggestion is, in itself, rooted in a particular view of the role of religion in community life.

For that reason, I have argued that neutrality ought not be the sine qua non of disestablishment and, in a forthcoming paper, suggest that there ought to be greater room for religious perspectives in government speech.

Second, while one can discuss values and morality from a secular perspective, it is unclear that the resulting conversation will adequately reflect and develop the values that most of us hold that, whether we believe or not, are rooted (for us in the U.S.) in the Judeo-Christian tradition. One can, I suppose, offer Rawlsian and other secular justifications for values such as equality or personal autonomy, but that is not really how we came to honor them and may not be sufficient to sustain them. While it is too much to say (as some want to do) that an abandonment of religious perspectives will inevitable lead to the secular totalitarianisms that marred the twentieth century, a discussion of values without reference to the grounds in which they are historically rooted would be quite thin and can’t help but alter the way in which we see those values.

There is, even under existing law, some room for values education in public schools and in the delivery of social services. My own sense, however, is that it is inevitable that schools and other governmental bodies will want to move beyond that into areas that are religiously sensitive. Because I believe that it is improbable, in the twenty-first century, that government will refrain (or can be restrained) from intruding on those areas of life with which religion is concerned, there needs to be more room to incorporate religious perspectives.

Cross posted at the Shark and Shepherd.

The information used to create the map is all publicly available, but it does make it more accessible and convenient to use. But for what end?

Others have asked whether there is an implicit threat in the creation of a map like this, and it does seem that those who created it must have contemplated, if they did not intend,  that it be used to place pressure on supporters of Prop 8. Of course, that doesn’t mean violence or even economic reprisal. It could be used to create a march route or even to facilitate social ostracization.

I appreciate that many – who see support for 8 as a form of hatred and support for a profound injustice – won’t care. Whatever happens to donors (short of violence, for most) is well deserved.

Legal questions might revolve around whether this type of speech targeted at donors to a political campaign can or should be banned (I think not) or whether campaign disclosure laws ought to or even must be modified. Eugene Volokh points out that the state may not compel the disclosure of contributors “to a minor political party that can show a ‘reasonable probability’ that the compelled disclosures will subject those identified to ‘threats, harassment, or reprisals.’”

It seems unlikely that this rule would apply to supporters of 8, which did, after all, win. I don’t think that  supporters of 8 could make the requisite showing, but a series of interesting questions present themselves. 

Does a constitutionally significant likelihood of threats and reprisals turn on whether the threatened party is associated with a political minority? Even if it does, what is the relevant community for the purposes of ascertaining minority status. Supporters of 8 who live in San Francisco are certainly a political minority — even a despised one — in that city. What of those who work in an industry — say academia or the arts — in which opposition to 8 is strong?

But beyond these legal questions, I wonder if this type of strategy is smart? Can you really convince the larger society to expand its notions of tolerance by being intolerant of those who resist? Supporters of SSM often draw analogies to the civil rights movement. We do not tolerate racism. Why should we tolerate what they see as similar attitudes towards gays and lesbians?

The political problem, it seems to me, is that there is nothing like a consensus that the analogy is apt, particularly when the issue is marriage (for which many people seem to believe gender and sexual orientation is relevant) and not the denial of other civil rights on the basis of sexual orientation. I wonder, in particular, if the embrace of the civil rights analogy has cost supporters of same sex marriage support in the African-American community, where I suspect there are many people who do not believe that gays and lesbians have been subject to the same type of oppression as blacks.

Supporters of same-sex marriage would argue that they are engaged in an attempt to change attitudes and, over the long run, the civil rights theme will work. Maybe so. But boycotts and other attempts to ostracize those that have simply supported a particular view of marriage (as opposed to discriminating against gays and lesbians in other ways that would provoke public outrage) do provide the supporters of 8 and similar measures with, whether or not you buy it, their own civil rights narrative.

Cross posted at PrawfsBlawg.

Bopp is currently pursuing another free speech claim in Siefert v. Alexander, again in the Western District federal court (PDF). Here, Bopp represents a Milwaukee County judge who is challenging three sections of the Code that prohibit judges from belonging to or participating in political parties.

He is also counsel to Justice Michael Gableman in the disciplinary proceedings regarding Gableman’s campaign TV ad. In the reply to the Judicial Commission’s charges (PDF), he affirmatively asserts that SCR 60.06(3)(2), the “misrepresentations” clause, is an unconstitutional impingement on free speech.

In other words, Bopp’s litigation in Wisconsin has successfully taken down one judicial ethics code section, and four more are under challenge.

But Bopp is litigating outside Wisconsin as well, and a recent decision Bopp won in a federal court in Kansas may result in new litigation in Wisconsin. Yesterday, Bopp issued a release hailing Judge Julie A. Robinson’s decision in Yost v. Stout, which struck down the Kansas Judicial Code’s ban on the direct solicitation of campaign donations by judicial candidates. Wisconsin SCR 60.06(4) says that “A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.” Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional. Will a Wisconsin judge or candidate soon challenge it as such?

I am working on a paper discussing the potential implications of the Supreme Court’s decision last term in Davis v. FEC, striking down the “Millionaire’s Amendment” to the Bipartisan Campaign Reform Act (more commonly known as the McCain-Feingold Act).  This provision increased the campaign contribution limits for candidates facing an opponent who has self-funded in excess of a trigger amount. So, if a wealthy self-financing candidate (like our own Sen. Herb Kohl or Rep. Steve Kagen) spends a sufficient amount of his or her own funds, the amount that individuals and party committees are allowed to contribute to his or her opponent increases. The Court, in a 5-4 decison, found that this provision is an unconstitutional burden on the self-financing candidate’s free speech rights.

The essential point of the paper, made on the very day that the decision came down on my personal blog (note to the Dean: see your summer research dollars at work), is that, when considered with the Court’s decision in Wisconsin Right to Life v. FEC during the previous term, Davis may well render public financing schemes unworkable.

This is because WRTL offers broad protection for issue advocacy directed toward a candidate for federal office. McCain-Feingold prohibits the use of corporate and union treasury funds for “electioneering communications” during certain periods immediately preceding a federal election. But the controlling opinion in WRTL holds that this prohibition can only be applied to ads that are incapable of being construed as anything other than a issue advocacy. This paves the way for substantial independent expenditures with funds from corporate and union donors.

To address this, public financing schemes are often asymmetrical. i.e., they provide additional funding to candidates facing opponents who, through self-funding or the rejection of public funding, spend in excess of a specifed trigger point. They may also provide additional funding to candidates against whom more than a specified amount of independent expenditures have been made.

My argument is that Davis calls these schemes into question.  If an increase in contribution limits improperly burdens the rights of self-financing candidates, then wouldn’t the provision of additional public funds do so as well? And, if additional funds impermissibly burden the rights of self-financers, why don’t they also impair the rights of independents who wish to engage in election-time issue advocacy?

For this reason I called Davis the most important decision of the day. (A somewhat celebrated case called Heller was also announced on June 26, 2008).

There are arguments against reading Davis in this way, and I deal with them in the paper. One (although not, I think, the strongest) relies on the distinction between government subsidies and penalties. It is well established that, at least in certain circumstances, the government can fund certain speech without also funding analogous speech. It can, for example, fund only family planning clinics that do not counsel patients about abortion. The Harvard author believes that this saves asymmetrical public financing. The government is simply enhancing the ”speech power” of those who choose public financing.

The problem is that enhancing ”speech power” is precisely what Davis involved. Providing money to one’s opponent (or to a candidate that one seeks to criticize through issue advocacy) burdens speech in a way that the simple absence of a subsidy for one’s own speech does not. I may turn out to be wrong about Davis’s implications, but this shouldn’t be the reason.

(N.b., The comment notes that Rick Hasen expressed a similar view at the Election Law Blog, and I see that, allowing for time zone differences,  he appears to have beaten me by three hours and twenty seven minutes. These days you lose if you snooze.)

The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.

The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of ”teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”

Although Ms. Ostlund’s duties certainly included ”teaching and spreading the faith” (although the school did not require teachers to be Catholics) and participation in worship, the court held that they were not primary. While it did not say that it based its decision simply on the amount of time devoted to religous and secular duties, this seems to have been very important. Noting that most other cases to have considered the issue have concluded that lay teachers at religious schools do not fall within the exception, the court was unwilling to adopt a broad view of the exception that would have rooted it in the primary mission of the school  (which was certainly to teach and form students in the faith.)

One of the interesting things about the Court of Appeals decision is that it rejected LIRC’s contention that the ministerial exception should not apply when the employer does not claim a religious justification for its decision (as the school here did not). If an employee is within the exception, it applies even if the claimed basis for a termination or other adverse action is secular.

And . . . even if the employee is not within the exception, a religious employer may nevertheless have a First Amendment defense (or, I suppose, a defense under Art. I, § 18 of the Wisconsin Constitution) if the proferred reason for the challenged employment action was religious and consideration of it would constitute excessive entanglement.

The manager of the complex asked him to remove the statue and, when Long refused, tried to remove it himself, causing a near altercation and the observation that titles this post.

What I find interesting is the manager’s claim that he is required to remove the statue because of the Fair Housing Act, which prohibits any “notice, statement or advertisement that indicates a preference, limitation or discrimination based on religion” in the sale or rental of housing.

That argument seems to be a non-starter.

Long’s statue does not amount to a communication by the landlord “in the sale or rental of a dwelling.”

But what if one interprets the Act’s general prohibition against discrimination in the provision of housing to prohibit the creation of a religiously hostile environment? Does the landlord have a duty to prevent it?

And, if the law is interpreted in that way, is there a constitutional problem? Does a legal mandate to a private party to suppress speech infringe Long’s First Amendment rights? Because the statue would presumably require the suppression of religious, and not other forms of speech, would such an interpretation violate Long’s free exercise rights, even within the limits imposed by Employment Division v. Smith?

Update: Having read the entire transcript of yesterday’s hearing, it appears that the court based its order on defamation, not because of constitutional concerns over 12.05 (he declined to entertain them), but because he thought that 12.05 did not provide for a civil action.

On Friday, in Jackson County, a circuit court judge named Thomas Lister issued an ex parte temporary restraining order against an ad run by a group called the Coalition For America’s Families. The court found that the plaintiff, Radcliffe For Assembly, had demonstrated a reasonable likelihood of success on its claim that the ad violated Wis. Stat. § 12.05 in that it “may 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. ”

The ad apparently stated that Mark Radcliffe, a Democratic candidate for the 92nd Assembly District, supports a health care plan that would double Wisconsin’s taxes, impose 15 billion dollars in new taxes, and represent a $ 510/month increase in taxes for every Wisconsin worker. (While news reports have said that the ad also claimed that the plan would provide benefits to out-of-state residents and illegal aliens, neither the complaint nor the restraining order mention any such statements.)

The order is extraordinary for a number of reasons.

First, the statute in question may well be facially unconstitutional. There is some authority for upholding such laws if they are predicated on the actual malice standard of New York Times v. Sullivan. While it would hardly turn the statute on its head to read it as imposing a higher standard (i.e., the communicator must know that the ad is false), there is also authority to the effect that the state does not have a compelling interest in restricting nondefamatory political speech and that a law that prohibits only false statements about another candidate (and not lies that a candidate tells about herself) is fatally underinclusive.

The judge here apparently thought that he got around that by treating it as a defamation claim, but this shouldn’t work. First, the plaintiffs apparently did not allege that the statements are defamatory and its hard to see how they could have. Even for conservatitives like me, accusing someone of wanting to raise taxes is hardly defamatory.

And even if was, it’s hard to see how the plaintiff could have shown a reasonable likelihood of success on his claim that the CFAC knew that the ad was untrue at an ex parte hearing.

The ex parte nature of the order is also incredible. According to news reports, Judge Lister was in contact with Radcliffe’s counsel all day on Friday. While he appears to have contacted CFAC by phone, was it really not possible to hold a hearing before issuing the order?

Apparently, the court did hold a telephonic hearing on Sunday morning, although it was not evidentiary. There is a hearing on a preliminary injunction set for today, but CFAC has filed a petition with the Court of Appeals for leave to appeal the TRO.

Even if he could, it’s difficult to see how the court justified a prior restraint. Even the leading case upholding the facial constitutionality of such a laws, found enforcement by a cease and desist order to be constitutionally problematic. From what I have been able to make of the transcript of Sunday’s hearing, it is unclear the the judge understood what a prior restraint is.

Finally, ithe ad may be true — or at least CFAC may have thought it was true. If Radcliffe supports the Healthy Wisconsin plan introduced by Senate Democrats — or something roughly equivalent, then he does support a tax increase of roughly that magnitude. Proponents of the plan argue that the tax increase will be offset by employer savings on insurance (an assertion that is fraught with its own problems), but, even if that were unassailably true, it doesn’t render the CFAC ad false — much less knowingly false.

Radcliffe said, in the course of Sunday’s telephone hearing, that he does not support Healthy Wisconsin, although what he does support and how it differs was not addressed. His website says that he supports universal access to health care based on ability to pay.

Here are the brief and appendix filed by CFAC in the Court of Appeals.

The Fairness Doctrine was a set of FCC policies that required broadcast stations to address matters of public interest (an aspect that was not enforced) and that required some measure of even-handedness in addressing such issues. Those of us who are a little older will recall news broadcasts in which, usually at the tail end, someone was presented to give “equal time” in opposition to an earlier editorial view expressed by the station. This was, as middle-aged fans of Saturday Night Live will recall, the premise for Gilda Radner’s hard-of-hearing Emily Latilla, who was brought on to offer “responsible opposing view points.” (”What’s all this fuss I hear about an eagle rights amendment?”)

The Supreme Court upheld the doctrine over a constitutional challenge in the late ’60s, but it was abandoned during the latter years of the Reagan administration.

Abandonment of the doctrine is generally credited for the explosion of news talk formats among AM radio stations, the overwhelming majority of which have a conservative bent. Some Democrats, including, most notably, Nancy Pelosi, have talked about bringing it back.

I understand that the audio will be available on the Law School’s website, so I won’t provide a blow by blow here. Messrs. Sykes and Benson opposed the return of the doctrine and Dr. Ugland, while not supporting its return, tried to explain its underlying rationale. Mr. McNally, while not calling for its return, seemed to advocate some type of mandated ideological balance in news talk formats.

My own view is that this debate died at about the same time as the careers of Boy George and Duran Duran. We are about to see the explosion of Internet radio, a phenomenom that will end arguments from scarcity, eliminate traditional barriers to entry, and make regulation a virtual impossibilty. Who, out of the coming cacophony, actually gets heard will be a key question, but, quite apart from whether it should be done, it’s hard to see how that question can be addressed by regulation.

I do wonder how this will affect our common life. A few years back, I asked my son, who is a musician, why no contemporary popular music groups are as big as the mega acts of the Baby Boom generation. I suppose that my unstated implication was that they don’t make ‘em like they used to.

His response was that music today consists of a far greater number of diverse artists who enjoy intense popularity among smaller fan bases. Today, he said, you get precisely what you want.

We seem to be on our way to the same state of affairs with respect to news and opinion. You get precisely what you want. That may be a wonderful thing when you’re looking for techno-influenced thrash/folk rock. But it may be less desireable when you are looking for information on common questions of public policy.

This instruction was based on an extraordinarily broad village ordinance which prohibited the distribution of “any printed matter on literature on public or private property” or the placement of such literature on motor vehicles. The ordinance had an exception for the distribution of literature to persons “willing to accept” it.

Foht apparently attempted to clarify the matter with the village attorney, who failed to return his calls. That turned out to be expensive.

Foht filed suit and the village, finally obtaining the proper legal advice, repealed the ordinance. The consent decree declares that the ordinance was facially unconstitutional and should not have been applied to Foht and awards him $11,000 in attorneys fees and costs.

The result is unexceptional, but the fact of the case may be instructive. What the law requires and whether it is complied with are two different matters. I doubt that this type of ordinance was only to be found in Kewaskum, Wisconsin.