Caleb Brown interviews Eric O’Keefe on the abusive Wisconsin John Doe prosecution of alleged unlawful campaign coordination, much covered in this space. O’Keefe says the growing scope of campaign regulation allows wider scope for the law to be used to harass and persecute outsiders and minority viewpoints, and also speculates as to why the prosecution has not been subject to more intense scrutiny in the press: “The prosecutors have cultivated relationships over a long period of time with the newspapers. Prosecutors get a lot of good stories first, like who they’re going to indict, who got arrested…so the newspapers tend to pander to prosecutors and together they have extremely powerful weapons.” Emails from the Wisconsin John Doe targets’ private accounts, for example, scooped up by prosecutors’ secret subpoenas, later surfaced in stories in the newspapers putting the targets in a bad light.
“Sen. Sanders goes one step further. He would require that nominees publicly commit to case outcomes…. Although under President Sanders’ proposal judicial impartiality in fact and in appearance will suffer, there is a bright side. If President Sanders filled a majority of seats on the Court with pre-committed Justices, lawyers before the Court could significantly reduce the time and effort expended on the argument sections of their briefs.” [Raymond McKoski, Legal Ethics Forum]
Note also that Sanders managed to find a position on Citizens United worse than Hillary Clinton’s “Banning a critical movie about me should’ve been OK.”
Lawrence Lessig claims the mantle of the insurgent 1969 Eugene McCarthy campaign. But the McCarthy campaign couldn’t have gotten off ground under Lessig’s own proposals on campaign finance, as Cato vice president John Samples points out in this new Cato video.
- Supreme Court’s sleeper case of the term, Reed v. Town of Gilbert, may greatly toughen First Amendment scrutiny of many laws [Adam Liptak, New York Times]
- Authorities to press charges against Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly, arrested last year in a McDonald’s during Ferguson protests [Newsweek]
- Having said obnoxious things is grounds for exclusion from Canada. Right? [CTV] Related musings about speech that affronts us [Ken at Popehat]
- In case paralleling issues in SBA List v. Driehaus, Massachusetts high court strikes down false-campaign-speech law that enabled incumbent to inflict legal woe on critics; state’s attorney general comes off poorly in account [Ilya Shapiro and Gabriel Latner/Cato]
- Court strikes down of Idaho ag-gag law, and Prof. Volokh notes some parallels to Planned Parenthood covert filming battle;
- Update: city of Inglewood, Calif. not faring well in effort to use copyright law to keep a critic from putting video clips of its council proceedings on YouTube [Adam Steinbaugh, earlier]
- Denver digs itself deeper in charges over leafleting by jury nullification activists [Jacob Sullum, earlier]
The Wisconsin Supreme Court has struck down the notorious secret prosecution of conservative political figures in the state, the implementation of which included dawn paramilitary raids at the homes of aides to Gov. Scott Walker and leaders of private advocacy groups. Two justices on the seven-member court dissented from key elements of the ruling and one did not participate. From the court’s opinion:
The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth, 354 U.S. at 484, instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.
Our lengthy discussion of these three cases can be distilled into a few simple, but important, points. It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.
Last year I described the conduct of the prosecution in the case as “stunningly abusive” and wrote:
The citizens of Wisconsin must now demand a full accounting of how these raids could have happened. They should also insist on changes in state law, in particular the “John Doe” law, aimed at ensuring that nothing like them ever happens again.
In dissent, former chief justice Shirley Abrahamson writes that the constitutionality of the search methods used was not under review in the cases at hand. Well known election law academic Rick Hasen laments that the ruling endorses the version of events of Walker aides concerning the raids without a full legal airing, although (he writes) the charges of abusive conduct during the raids were “never fully verified” and are part of a set of “fears which generally do not stand up to scrutiny.” (To be clear about what was going on, the aides in question appear to have been gagged by a court order throughout, though someone on their side appears to have succeeded in eventually conveying the story to the Wall Street Journal and other outlets).
Another reaction yesterday, from a well-known advocacy shop in Washington, D.C., might be summed up as follows: “We need 500 words on the Wisconsin John Doe dismissal, but don’t mention the dawn paramilitary raids or the gag orders.” “OK, can do.”
Related: Ilya Shapiro says a petition for certiorari by former Walker aide Kelly Rindfleisch “provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause.”
- Reason subpoena: “There’s no case here, and the Justice Department knows it.” [Kevin O’Brien, Cleveland Plain Dealer, Mike Godwin/R Street Institute, earlier]
- “Judge: Arresting Man For Criticizing Alton Selectmen Was ‘Pure Censorship'” [New Hampshire Public Radio]
- Billboard images of women “smiling for no reason” are now disallowed on grounds of sexism in Berlin’s Kreuzberg-Friedrichshain district; also, “Adult women — featured alone or not — must not be shown ‘occupied in the household with pleasure.'” [Anthony Faiola, Washington Post]
- Free speech, trademark law intersect in NAACP suit over critical parody [Paul Alan Levy]
- Without leeway for anonymous campaign speech, it’ll be hard to oust the retaliation-happy likes of Joe Arpaio [Robert Robb, Arizona Republic via Coyote]
- Legal blogger in court: “Partial Victory In Patterico’s Free Speech Case Before Ninth Circuit” [Ken at Popehat]
- European court: website liable for reader comments [ArsTechnica UK, Stanford CIS, Article 19, Delfi AS v. Estonia]
That raises the possibility of later disclosure of the information, retaliation against donors, or both; whether it’s unusual enough for the U.S. Supreme Court to step in to stop it remains to be seen. Harris’s target and adversary in the resulting suit, by coincidence or otherwise, is the “Center for Competitive Politics, a vigorous supporter of political free-speech rights that does not get involved in election campaigns” but does speak out strongly about the First Amendment implications of campaign regulation; we’ve often cited its work and that of its founder, Brad Smith. [Lyle Denniston, SCOTUSBlog; Instapundit, citing “Supreme Court’s 1958 decision in NAACP v. Alabama, in which the Court unanimously protected the NAACP’s membership lists against compelled disclosure to Alabama officials.”]
- Yikes: Granby, Quebec, “moves to fine people insulting police on social media” [CBC]
- “Plaintiffs in foreign ‘hate speech’ lawsuit seeking to subpoena records from U.S. service providers” [Eugene Volokh] Visa for Dutch politician Geert Wilders aside, Reps. Keith Ellison and André Carson imply they’d like to limit speech for Americans too [same]
- “Why The D.C. Circuit’s Anti-SLAPP Ruling Is Important” [Popehat]
- Federal court strikes down Pennsylvania law allowing “re-victimization” suits for “renewed anguish” against convicts who speak about their crimes [Volokh, earlier]
- How different are judges? Williams-Yulee v. Florida Bar marks an exception in Court’s preference for speech over regulation in campaign cases [SCOTUSBlog symposium, Elizabeth Price Foley/Instapundit, Daniel Fisher, Ilya Shapiro, our coverage of judicial elections]
- “New Jersey’s Sensitive Victim Bias Crime Unconstitutional” [Scott Greenfield]
- Amazing: Wisconsin John Doe prosecutor suggests criminally charging Gov. Scott Walker over remarks critical of probe [Journal-Sentinel, Volokh; more at Cato, Roger Pilon and Tim Lynch; earlier from me here, etc.]
- Pennsylvania has passed that grotesque new law seeking to muzzle convicts from discussing crimes when “mental anguish” to victims could result. Time for courts to strike it down [Radley Balko, earlier]
- “First Amendment challenge to broad gag order on family court litigants” [Eugene Volokh]
- Federally funded Indiana U. program to monitor political opinion on Twitter didn’t much like being monitored itself by critics [Free Beacon, earlier (project “intensely if covertly political”)]
- Holocaust denial laws abridge the freedom of speech. Do they even accomplish their own aims? [Sam Schulman, Weekly Standard]
- Is it defamatory to call someone a “censorious a**hat”? [Adam Steinbaugh, Eric Turkewitz, earlier on Roca Labs case]
- We should take up a collection to translate Voltaire into French [Reason, Huffington Post on Dieudonne case, yesterday on talk of “Fox maligned Paris” suit]
- Some would-be speech suppressers upset over Citizens United ruling also quite happy to drown out Justices’ speech [Mark Walsh, SCOTUSBlog] “Campaign finance censors lose debate to Reddit” [Trevor Burrus] Citizens United “probably the most misunderstood case in modern legal history.” [Ilya Shapiro]
- Boss Tweed, in legend, railing against cartoonists: “I don’t care so much what the papers write about — my constituents can’t read — but damn it, they can see pictures.” [David Boaz, Cato] “Jyllands-Posten Not Reprinting Charlie Hebdo Mohammed Cartoons Because ‘Violence Works'” [Ed Krayewski, Reason]
- “Police Scotland will thoroughly investigate any reports of offensive or criminal behaviour online and anyone found to be responsible will be robustly dealt with.” That includes TV personalities’ tweets disparaging to Glasgow [BBC, Alex Massie/Spectator, Elizabeth Nolan Brown] More: Calls mount for repeal of Australia Section 18C speech-crime law, which would ban the French magazine Charlie Hebdo if someone tried to publish it down there [Australian, Sydney Morning Herald, earlier on Andrew Bolt case]
- “Hate speech” concept got rolling when Stalin used it as weapon against democracies [Jacob Mchangama, Hoover, a while back] More on history of speechcrime: antebellum North (not just South) repressed abolitionist opinion, and how the great Macaulay erred on blasphemy law under the Raj [Sam Schulman, Weekly Standard, also a while back]
- “Campaign Finance Laws Don’t Clean Up Politics, But Do Erode Our Freedom” [George Leef, Forbes]
- In case against personal injury lawyer/legal blogger Eric Turkewitz, court rules that critical commentary about medical examiner is protected opinion [Turkewitz, Daniel Fisher/Forbes, Tim Cushing/TechDirt]
- “It is unusual for Swedish courts to hand out prison terms for art works.” [The Guardian on Dan Park case]
- Australian man arrested after loitering around campaigners of incumbent political party wearing “I’m with stupid” T-shirt [Guardian]