Update on Prior Restraint

The Court of Appeals has stayed the TRO, saying “we are aware of no caselaw which permits prior restraint of speech before an adjudication on the merits of the defamatory nature of the statement at issue.” It will, however, permit Radcliffe’s lawyers to submit a brief. I don’t think that’ll change anything.

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.

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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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Cert. Grant: Do Prisoners Have a Right to Use New Technology To Prove Their Innocence?

The Supreme Court today granted certiorari in District Attorney’s Office v. Osborne (No. 08-6, opinion below: 521 F.3d 1118 (9th Cir. 2008)). At issue is whether a prisoner convicted of rape can sue a prosecutor’s office to obtain DNA evidence for more sophisticated testing than was available at the time of the prisoner’s trial. Lurking in the background is the difficult constitutional question of whether the prisoner would be entitled to obtain his release through a federal habeas corpus petition if DNA testing proved his innocence. The Supreme Court has repeatedly dodged this issue in the past, refusing squarely to hold whether or not innocent prisoners have a constitutional right to be relieved from their punishment under the Due Process Clause. See, e.g., House v. Bell, 547 U.S. 518 (2006).

The formalists on the Court have a hard time swallowing any constitutional rights that are not spelled out in explicit detail in the text of the Constitution, but I’ve always thought that “due process,” if it is to mean anything at all, must surely include a right not to be punished if one is not guilty. I think most Americans would be shocked to learn that the state may simply ignore persuasive evidence of innocence and continue to hold a prisoner for years (or potentially even execute the prisoner) despite grave doubts as to the prisoner’s guilt. New forensics technology (especially DNA testing) will eventually force the courts to tell us once and for all whether that is indeed the state of the law.

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