The Judicial Commission announced today that it is discontinuing prosecution of its complaint against Justice Michael Gableman. Quite apart from the merits of the complaint, this seems like the right thing to do given the deadlock on the Court and the particular positions taken by the Abrahamson and Prosser groups. As I explained here and here, there seems to be no way that further proceedings could be expected to break the impasse.

An interesting constitutional question was embedded within the writings of the Prosser and Abrahamson  groups.

 SCR 60.06(3) provides that a candidate for 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.”  To avoid what it saw as potential First Amendment challenges, the Prosser group would limit its application to  “objectively false statements” by which they seem to mean statements that are literally false without further consideration of their context or how they would be understood by the listener.

The Abrahamson group would have determined the message that the ad was intended to and could be reasonably expected to convey and apply the rule’s test of truth and falsity and scienter requirement to that message.

Although not adopted by either group of Justices, one member of the three judge panel, Ralph Adam Fine, construed the rule in the same way as the Abrahamson group, i.e., to prohibit messages that, even though composed of a series of literally true statements, convey a message that is false and that are made with knowledge of or in reckless disregard of its falsity. But he would find that prohibition, at least as applied to core political speech, to be unconstitutional.

The First Amendment mavens among us will appreciate that one of the issues in play here is the applicability of the New York Times v. Sullivan line of cases to nondefamatory political speech. There are lower court cases going both ways.