Prior Restraint in Black River Falls

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.

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Panel Discussion on the Fairness Doctrine, But Will It Matter?

I had the pleasure of moderating a panel discussion on the potential for and desireability of a return of the Fairness Doctrine sponsored by the Marquette University Law School student chapter of the Federalist Society. The panelists were Chicago radio talk show host Guy Benson and local talk show host Charlie Sykes in “opposition” and Marquette Communications Professor Eric Ugland and local talker Joel McNally, who were in “favor” or, at least, not resolutely opposed.

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.

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Doing Doors in Kewaskum

Last Tuesday, a consent judgment was entered in the Eastern District of Wisconsin resolving a free speech claim brought by a self-described “traveling evangelist.” The plaintiff Michael Foht was told by the Kewaskum Police that he could distribute religious literature only to people who said that they wanted it. This meant that he could not leave literature at private residences (he must first knock on the door and ask permission) or leaflet automobiles.

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.

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