The challenger's ad in the 2008 race for a judgeship on the Wisconsin Supreme Court delivered the classic one-two punch:
Side-by-side, black-and-white head shots of two black men -- one, the first African-American to sit on the state high court; the other, a twice-convicted rapist. With eerie music in the background and the head shots fading in and out, the television narrator said, "Louis Butler worked to put criminals on the street. Like Reuben Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child."
The ad's sponsor, Michael Gableman, unseated Butler in the election. But now, more than a year later, he could lose his seat because of that ad.
Was the ad true or false? Did the First Amendment protect it?
A state court panel recently heard arguments on those questions from Gableman's lawyers and the Wisconsin Judicial Commission, which has charged the justice with lying and violating the so-called misrepresentations clause in the state's judicial code of ethics.
Many state ethics codes and laws have such clauses, which restrict false and misleading statements about an opponent's background and qualifications. As state judicial elections become nastier, more expensive and more important to special interest groups, complaints regarding alleged misrepresentations are on the rise, according to a number of election scholars and litigators. State courts, often faced with resolving such complaints, struggle to define when a candidate has crossed the line between protected and unprotected speech in campaign ads and literature.
The Gableman case is being watched closely for where the Wisconsin Supreme Court ultimately will draw the line.
And in the shadows of the tug-of-war over the ad's truthfulness is a potential U.S. Supreme Court challenge if Gableman loses -- a challenge raising the question of just how different judicial elections are or should be from other elections.
"There's ongoing discomfort with judicial elections, so there's a desire to make them better elections, less tainted by self-interest," said Richard Briffault of Columbia Law School. "But there's another view that, if you're going to have a judicial election, it should be run like any election -- open, freewheeling. Courts are trying to work out this tension."
THREE OUT OF FOUR
Before becoming a justice, Louis Butler was a public defender. He handled the appeal of convicted rapist Mitchell from 1985 to 1988. Butler successfully argued before an appellate panel that the trial court improperly admitted certain evidence, which likely prejudiced the jury. The panel ordered a new trial, but the state Supreme Court reversed, holding that the error did not affect the trial's fairness.
Butler had nothing further to do with Mitchell, who stayed in prison until his release on parole in 1992. Three years later, Mitchell was convicted of raping another child.
James Alexander, counsel to the Judicial Commission, contends the false statement in Gableman's campaign ad is that Butler was responsible for Mitchell's release and subsequent crime. The so-called "loophole," he adds, had nothing to do with Mitchell committing another crime, and Gableman knew it because he acknowledged studying the case and the ad.
"The advertisement is carefully crafted to consolidate four statements that are, arguably, literally true into one lie," Alexander argues in the commission's brief. "When the sentences are viewed in context and given their ordinary meaning, they convey a false message concerning the conduct of Louis Butler, causing the viewers to question the safety of Wisconsin families if Louis Butler is re-elected to the Wisconsin Supreme Court."
That lie, he charges, violates a section of Wisconsin's misrepresentation rule that states 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. Gableman's potential discipline ranges from a reprimand to removal.
Gableman's counsel, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., said the commission has admitted that three of the four sentences in the ad are true. The only one contested, he said, is that Butler worked to put criminals on the street.
"Certainly a criminal defense lawyer may not like to be talked about in that way, but that's the end result when they are successful," he said.
Because there is no statement of fact regarding Butler that is "objectively false," Gableman cannot be punished under the rule, argued Bopp. Neither the state rule nor the First Amendment, he added, "allows the government to punish political speech on the ground that it contains an allegedly false implication."
Judicial campaign speech has been a "white-hot" area of litigation since the U.S. Supreme Court's 2002 ruling in Republican Party of Minnesota v. White, said Charles Hall of Justice at Stake, a nonpartisan group working for fair and impartial courts.
In White, the 5-4 majority struck down on First Amendment grounds a state judicial canon prohibiting judicial candidates from announcing their views on contested legal and political issues. Subsequently, a number of state courts struck down other canons, such as those prohibiting candidates from personally soliciting contributions or endorsements. They relied on White and some language in the decision indicating that, if states choose to elect judges, then they must take both the good and bad in such a process.
Even before White, state and federal courts were troubled by misrepresentations clauses, particularly if they punished speech that was not intentionally false, according to Columbia's Briffault. But most courts and legislatures in the past decade have narrowed those clauses to require knowing or reckless disregard for a statement's truth or falsity.
Are the clauses vulnerable to constitutional attack? Yes, but they can withstand it, said Briffault and James Sample of Hofstra University School of Law, formerly an attorney with the Brennan Center for Justice at New York University School of Law.
Sample said the states have a compelling interest in protecting the integrity of the judicial system -- the Wisconsin commission's defense to Bopp's First Amendment attack on applying the clause to his client.
Briffault, however, said it's not clear that the interest in "integrity" is unique to the judicial elections and not to all elections. The better defense of the clauses, he said, may be that they advance the public interest in informed judicial elections. "If speech is clearly and knowingly false, there is no value to it," he said.
But constitutional problems do arise when the discipline or sanction for speech turns on the interpretation of the listener -- what the words implied or conveyed, rather than their truthfulness, said Richard Esenberg of Marquette University Law School said.
"You can't just read the sentences here out of context, but my concern is how far down that road are we going to go before running into trouble, where we unduly burden or potentially chill protected speech," he said. "Most campaign ads are undertaken in bad faith and often do imply things that are false, or at least not the whole story."
Bopp disagrees with Hall and others who see the clauses as the judicial equivalent of libel laws.
Libel law requires a false statement that is defamatory, not just a false statement, he said. "There has to be some harm to the individual. With these clauses, the false statement may or may not be harmful but it's still punished. I think that's troubling."
What he called the "no-harm conundrum" has pushed him, he said, toward the view of the Washington Supreme Court in its 2007 decision, Rickert v. Washington. That court struck down a state law prohibiting any person from sponsoring, with actual malice, a false political ad about an opponent. The court said the people, not the state, are the "final arbiters of truth" in political debate.
If the Wisconsin Supreme Court punishes Gableman, said Bopp, it will have created a split with the Washington court that would provide a basis for U.S. Supreme Court review.
Citizen Action of Wisconsin filed the original complaint about the ad with the judicial commission, said Robert Kraig, program director, noting the ad also had a "racial tinge to it."
Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar's judicial integrity campaign committee also was "highly critical" of the ad.
The Gableman-Butler race was the most expensive judicial election in the state's history. Special-interest groups spent about $4.8 million of the $6 million total.
"I think the law is eventually going to say that, when you have a judicial election, it's just the same as any partisan election," Basting said. "That's why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges."