Prior Restraint in Black River Falls

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal System

This is astonishing.

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.

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