Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there.
There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides “[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.” This is the proscription that the Judicial Commission says was violated by the Mitchell ad.
But there is a second sentence. It states that “[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.”
The difference between “shall” and “should” is significant. The preamble to the Judicial Code states that “[t]he use of “should” or “should not” in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.” (emphasis supplied)
Everyone agrees that the ad contained a series of statements which, read in isolation, are true. Almost everyone agrees that this same series of statements, when read together, conveys or implies a message which is, in one or more respects, false. The ad says “Butler found a loophole. Mitchell went on to molest another child.” Someone hearing the ad would likely conclude that it means “Butler found a loophole. As a result, Mitchell went free. And then Mitchell offended again.”
But there is a potential problem. Gableman has free speech rights and it is not an easy question to define the circumstances under which the state can punish speech that it determines to be false. Indeed, some would argue – and Gableman does – that it can only punish speech that is defamatory subject to certain additional constitutionally required qualifications. Because 60.06(3)(c) is not so limited, it is facially overbroad and should be declared unconstitutional.
I don’t see that happening.
But the other day, while discussing the case with a reporter for the National Law Journal, I concluded that this might.
The panel may construe 60.06(3)(c) narrowly to require a literally false statement in much the same way that prosecution for perjury generally requires such a statement. Or it may conclude that it is unconstitutional if applied to statements that are literally true but claimed to convey or imply a false message.
Why would the panel do this? Don’t I think – shouldn’t they think – that the ad is false? I do and they probably do too, but I am – and, by the questions put at oral argument, they are – concerned about the state taking on the responsibility to determine whether political speech – something which is at the core of first amendment protection – would be understood to convey a false message.
This is particularly so in the context of campaign ads that are highly truncated messages (often no more than thirty seconds long) that almost must oversimplify the issues that are discussed.
For example, during the Presidential election, the Obama campaign ran some ads that claimed John McCain would “tax your health care benefits.” That was literally true. It is not unreasonable to further claim that it would be understood by most people to mean that they would have to pay new taxes under McCain’s plan.
But that understanding would be false. McCain was also proposed providing a tax credit that would offset any new taxes for almost everyone. The Obama campaign read some ads that mentioned this credit but others that did not. Still others, while mentioning the tax credit, also referred to a middle tax class hike and asked whether “you” could afford it? Should the first amendment permit the sanctions for such ads? My initial reaction is “no.”
This concern is magnified here because finding a violation of the first sentence of 60.06(3)(c) raises the question of discipline and, while that discipline might be limited to a reprimand or a fine, other potential sanctions – suspension or removal – raise uncomfortable issues about disciplinary proceedings interfering with the result of an election. They aren’t going to happen.
But what about the second sentence of 60.06(3)(c)? It is not what the Judicial Commission relies upon, but might the panel nevertheless observe that the Gableman ad violates this aspirational rule. Maybe it is true, but it is certainly misleading. There cannot be a sanction for violating it, but there certainly can be criticism. Would official disapproval of political speech violate the First Amendment? I think not and it would avoid difficult questions about undermining the outcome of an election. (Although you might make the same argument about a reprimand, such an official disciplinary act may be different, particularly in a system of progressive discipline.)
Cross posted at Prawfsblawg and Shark and Shepherd
I disagree with the premise that a sitting judge who lies is “punished” by the application of an ethical rule that requires truthfulness.
There is no First Amendment right to tell a lie. He has no property interest in his judgeship. He is not threatened with jail time. So long as any fines are modest, there is no Eighth Amendment concern about proportionality. He could resign, stay a private citizen, and say anything that he wanted about Justice Butler without fear of prosecution. But when he assumed his judgeship he swore to adhere to the Code of Judicial Ethics.
Justice Gableman’s lawyers may argue that the ad’s statement was not a lie. But if the three-judge panel concludes that it was, then there is an ethical violation. What is the point of an ethical code if it can be violated with impunity?
Justice Gableman’s lawyers may argue that the ad’s statement was not a lie.
Gableman denies he even made the statement which is alleged to be a misrepresentation, and asserts that no “effort” whatsoever was made to attribute to the “loophole” the defendant’s release and subsequent criminal act.
The latter, at least, is practically impossible to believe, especially given Gableman’s own admission that he agonized over the “tone” of the ad.
I predicted some time ago that Gableman would eventually concede to something approaching the conduct proscribed by the aspirational component of the canon.
Gableman’s lawyer came very, very close to doing so yesterday. He may yet, although I wouldn’t be surprised if the panel, 2-1, recommends — grudgingly — that the Commission’s complaint be dismissed.
Then Gableman’s colleagues will have some real soul-searching to do. Mind you, I think Gableman’s efforts at defending himself are making him look even worse than he did during his political campaign.
One thing’s for sure, Gableman certainly has no grounds for being troubled when somebody criticizes him.
Well, he certainly would be “punished.” The question is what rules ought to govern the imposition of punishment.
The question is not whether he has a constitutional right to lie, but whether the protection of core political speech places limits on the circumstances under which the state can determine that something is a lie. It is quite clear that judges and judicial candidates do not waive their first amendment rights by assuming or seeking office.
My impression is that many courts have upheld sanctioning schemes that require a New York Times v. Sullivan standard of malice, although at least one has said that is not enough in the absence of defamation.
60.06(3)(c) would meet that Sullivan standard but even if the sanctioning of political speech need not be in support of the state’s interest in protecting reputation, I can imagine that courts may be reluctant to base a sanction on what a message is said to convey as opposed to the literal falsity of words contained in that message.
There are states (including Wisconsin)that have statutes purporting to criminalize false speech during election campaigns. Would we be comfortable with a prosection of candidate Obama for his ad about McCain’s health care proposal? Would those concerns be alleviated by saying that he had no constitutional right to lie? (I am sure, incidentally, that you could find what seem to be intentional or recklessly false statements in ads run by many campaigns. That’s what keeps factcheckers – and political consultants – employed.)
At least based on news reports, a reluctance to police political campaigns seems to have been very much on the mind of the three judge panel. Maybe the Gableman ad is a clear enough case that those concerns will be put aside. But I think that is an open question.