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Improper role for state Bar

As members of the State Bar, we urge the candidates for the Wisconsin Supreme Court not to sign the pledge put to them by the Judicial Campaign Integrity Committee, which the Bar recently formed ("Judges can have no constituents," Jan. 13).

The pledge seeks to prevent the candidates from engaging in speech that the eight-person committee believes is false, unfair or otherwise offensive. It also requires that the candidates monitor what others say on their behalf and, if the committee decides that speech is improper, the candidates must publicly disavow it.

No one wants the candidates or their supporters to engage in offensive speech. But it is inappropriate for the Bar to make itself the arbiter of when speech crosses the line.

No matter how well-intentioned, the pledge will effectively prevent Wisconsin voters from obtaining the fullest information possible for deciding who is best-suited to serve on our highest court. Although it pays lip service to the First Amendment, the pledge will force candidates to choose between exercising their free speech rights as they see fit and facing a possible scolding by the committee.

The candidates also will have to try to suppress statements by private citizens and groups that the committee might later decide are improper. Vigorous public discussion and debate will be stifled.

It would be a bitter irony for the state Constitution to grant residents the right to choose judges while the state's leading lawyers' organization tried to restrict dissemination of speech that would inform that right.

If enacted into law by the Legislature, the pledge would be constitutionally dead on arrival. In 2002, the U.S. Supreme Court held that prohibiting judicial candidates from discussing disputed political and legal issues violates the First Amendment. The court noted that the public should have the information necessary to properly exercise the franchise: Where a state "chooses to tap the energy and the legitimizing power of the democratic process" by electing its judges, free speech by participants in that process must be allowed.

Much of the pledge is devoted to preserving the judiciary's image. However noble this goal, it should not be at the expense of free speech. The judiciary's image is not enhanced by insulating it from criticism that the Bar believes is unfair. Courts make decisions that profoundly affect the lives of Wisconsin residents, and residents should be able to criticize decisions they disagree with without fear that the Bar will admonish a candidate they favor.

The Judicial Code of Ethics already places limitations on what the candidates can say. For example, to ensure impartiality, the code prohibits them from opining on cases that might come before them in the future. The pledge presupposes that the code is not restrictive enough.

Undoubtedly, the committee will argue that it doesn't mean to abridge anyone's First Amendment rights and intends only to condemn speech that it believes is improper. That raises the question why the committee should be deciding for voters when words are poorly chosen. Attorneys know that language can often be interpreted in different ways. No consensus about what constitutes proper speech even exists; since the 2000 state Supreme Court election, there have been varying complaints that not enough discussion about the issues has taken place, or that there has been too much of the "wrong kind" of speech. The committee's task of determining conclusively and objectively whether statements made during a campaign are false or unfair is quixotic, at best.

False advertisements or ad hominem attacks are never appropriate. But Wisconsin citizens are smart enough to distinguish between fair criticism and scurrilous smears. Candidates engaging in outrageous campaigning, or failing to act when their supporters do so, show they may not be fit to sit on the bench - relevant information for Wisconsin voters.

Although it has many important functions, the Bar should not try to regulate speech by judicial candidates in a way that would be plainly unconstitutional if done by the government. The far better course is for candidates and their supporters to provide information they believe appropriate - good, bad, even ugly - and let voters decide.

This article was written by Milwaukee attorneys Don Daugherty, Rebecca Bradley, David Simon and Daniel Kelly.

© 2016, Journal Sentinel Inc. All rights reserved.

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