Free Speech Liberation Day

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Has no Rx for his orange obsession.
A/V Subscriber
Nov 8, 2004
Wishing I was in Stillwater
From WSJ:

Free Speech Liberation Day
The Wisconsin Supreme Court shuts down an illegal campaign against conservatives.
Updated July 16, 2015 8:14 p.m. ET

Well, that sure is definitive. We’re referring to Thursday’s sweeping 4-2 ruling by the Wisconsin Supreme Court shutting down a nearly three-year secret investigation that tried to muzzle conservative groups and cripple Governor Scott Walker.

These columns first reported on the John Doe probe, a kind of super-secret grand jury, in November 2013. A month earlier prosecutors and police had raided the homes of five of Mr. Walker’s political allies at dawn, and in the following days 29 conservative groups or individuals were served with subpoenas that demanded records on every corner of their lives.

As we argued in that editorial and many times since, the legal theory that special prosecutor Francis Schmitz and Milwaukee District Attorney John Chisholm used to justify their raids was itself illegal. Wisconsin’s High Court has vindicated our view in a majority opinion that is stirring in its support for free political speech and association.

“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,” writes Justice Michael Gableman. “In other words, the special prosecutor was the instigator of a ‘perfect storm’ of wrongs that was visited upon the innocent [targets] and those who dared to associate with them.” (See excerpts nearby.)

The opinion eviscerates the attempt to criminalize political speech under the theory of illegal “coordination.” Prosecutors claimed that their targets had illegally coordinated their independent expenditure campaigns with Mr. Walker’s. But the court ruled that prosecutors stretched the definition of the words “political purposes” in Wisconsin campaign law to sweep in constitutionally protected political speech.

In particular, they tried to criminalize “issue advocacy,” or advocating on behalf of issues as opposed to specific candidates. The Justices agreed with lower-court judge Gregory Peterson that this was an abuse of power and ordered an end to “this unconstitutional John Doe” probe.

“The threat to free expression created by overbroad statutes is that, by potentially sweeping in constitutionally protected activity, individuals and groups may self-censor out of fear of vindictive or selective prosecution,” Justice Gableman writes. By the way, liberals will try to blame his analysis on Citizens United and other recent U.S. Supreme court rulings. But Justice Gableman’s legal logic holds even under Buckley v. Valeo in 1976.

Because the ruling is rooted in state law as well as the First Amendment, the U.S. Supreme Court won’t take an appeal. But this ought to be a significant brushback to what has become the political left’s nationwide drive to criminalize campaign “coordination.”

President Obama’s Justice Department recently said it will “aggressively pursue” coordination prosecutions. And in May the Campaign Legal Center and Democracy 21 asked Justice to appoint a special counsel to investigate Jeb Bush and his Right to Rise Super PAC on a coordination theory. At least one of the Wisconsin subpoenas included a demand for donor names, which shows prosecutors were inhaling the national liberal animus against money in politics.

In Wisconsin coordination is also an obsession of the Government Accountability Board, the state’s campaign regulator, which helped to drive the John Doe. Wisconsin’s legislature should put the board out of business.

There should also be a reckoning for the prosecutors who abused their power. Two of their targets have sued the prosecutors in state court for violating their free-speech rights, but there should also be some professional review of the kind that disbarred Duke lacrosse prosecutor Michael Nifong. Wisconsin’s Governor has the power to remove a district attorney for misconduct, a step former Governor Tommy Thompson took even for lesser offenses.

The larger victory here is for democracy. Prosecutors tried to shut down the speech of their political opponents, but they failed thanks to the willingness of some of those targets to fight back.

Particular credit goes to Eric O’Keefe, director of the Wisconsin Club for Growth, who took a personal risk by breaking the John Doe’s gag order to go on the record with us in 2013 about the subpoenas. His legal challenges in Wisconsin and in a federal lawsuit, aided by Kansas City law firm Graves Garrett and David Rivkin of BakerHostetler, brought the constitutional issues into public focus.

“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,” Justice Gableman writes.

Our own role has been to provide a voice for the principles at stake, as well as for the political targets to fight back when they couldn’t defend themselves while most in the media were mouthpieces for prosecutors. Sometimes, once in a while, freedom wins.