Wisconsin Supreme Court Establishes Victory For Justice Gableman And The First Amendment

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Thursday, July 1, 2010
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Wisconsin Supreme Court Establishes Victory For Justice Gableman And The First Amendment

Yesterday, the Wisconsin Supreme Court, in a 3-3 decision, held that a political advertisement run by successful Wisconsin Supreme Court candidate Justice Michael Gableman did not violate the State’s rules of judicial ethics.  The case, In re Gableman, involves a political advertisement Justice Gableman ran against his opponent in his 2008 campaign. The Wisconsin Judicial Commission alleged that his ad was false and misleading and warrants disciplinary action.

The Wisconsin Code prohibits judicial candidates from “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.” Justices Prosser, Roggensack, and Ziegler held that the ad was objectively true and therefore did not violate the rule.   The Judicial Commission had the burden of proof to persuade a majority of Justices that its claim had merit.  It’s failure to do so means Justice Gableman has prevailed.

Says James Bopp, Jr., lead counsel for Justice Gableman, “the case is over and Justice Gableman has been vindicated.”  “The government cannot constitutionally police campaign speech, as the State of Wisconsin unsuccessfully sought to do here,” adds Bopp, “The First Amendment was designed to prevent precisely this type of censorship. True statements are entitled to complete constitutional protection.”

Justice Gableman has issued the following personal statement:

“Obviously, I am pleased to be victorious and to have been vindicated in this matter.  More important than my personal victory, however, I hope this decision will mark the start of a time for healing for the Wisconsin Supreme Court.  It is my hope that this affirmation of the Judicial Conduct Panel’s unanimous recommendation for dismissal will come to be seen as a turning point and that the longstanding dysfunction which predated my election and which has plagued the court for over two decades can be put behind us and that we may see a more unanimous focus on the rule of law and, by extension, service to the people of this great state.”

Copies of the two decisions are available at the James Madison Center’s website, www.jamesmadisoncenter.org, under the  “Judicial Reform Project” link.
James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.