Posts Tagged ‘Wisconsin’

Wisconsin Supreme Court strikes down John Doe II probe

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.

And:

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.

Coverage and commentary: Roger Pilon/Cato; Gabriel Malor. The conservative Wisconsin Watchdog has provided extensive coverage in more than 200 stories.

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.”

Free speech roundup

  • March of “cyberbullying” law continues: “New Zealand passes law making it punishable by fine or jail time for “causing emotional distress” on the Internet [The Register]
  • Wisconsin John Doe prosecutors tapped email and text communications of conservative activists, also got bank records [M.D. Kittle, Wisconsin Watchdog]
  • Rare instance where pro-speech, anti-harass groups agree: ICANN shouldn’t zap site-owner privacy [Online Abuse Prevention Initiative via @sarahjeong] More: Cathy Gellis, Popehat;
  • “Researcher Headed To Australian Supreme Court In Attempt To Hold Google Responsible For Posts At Ripoff Reports” [Tim Cushing, TechDirt]
  • When you vigorously deny an accusation, do you defame the accuser as a liar? [Popehat on Bill Cosby litigation]
  • “They do this because they can.” [Mark Steyn on Preet Bharara’s “prosecutocracy” and the Reason subpoena, earlier here, here, etc.]
  • Remember, badspeak can be evidence of wrongthink: “[London Mayor] Boris Johnson ‘could be breaching sex discrimination laws’ for defending Sir Tim Hunt over sexism row” [Independent]

Schools roundup

Free speech roundup

  • 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.]

April 28 roundup

  • “The makers of smokeless tobacco products like to claim that their products are safer than cigarettes.” Hey, New York Times, that’s ’cause it’s true! [Jacob Sullum]
  • New York Attorney General Eric Schneiderman pursues high-profile case against Standard & Poor’s, accepts $50K contribution from CEO of another credit rating firm [Richard Pollock/Daily Caller, some background]
  • Megan McArdle on child support and the difficulty of replacing social norms with law [Bloomberg View, my recent Cato post and podcast]
  • “Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit” [Milwaukee Journal Sentinel editorial, earlier; AP (federal judge declines to block law’s implementation while suit is pending)]
  • CVS opposes certification of securities class action, saying government pension managers filing it were influenced by political donations from plaintiff’s law firm [Law360, reg]
  • “Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)” [Adam Steinman, Civil Procedure Blog, arguing from premises different from mine, on Fourth Circuit’s decision in McCleary-Evans v. Maryland Department of Transportation]
  • The Maryland knife law angle in the Freddie Gray story [Patrik Jonsson, Christian Science Monitor; my post at Free State Notes]

April 22 roundup

Free speech roundup

  • UK wrongful-speech laws sold to public “with mawkish appeals to the protection of the weak” but typically used by strong, rich and well connected [Charles C.W. Cooke on Galloway episode]
  • “Danish terrorist attack survivor: ‘It’s a fight that we can’t ignore'” [Lena Masri, Poynter]
  • “It gives me no comfort to have my constitutional rights trampled in a bipartisan fashion.” [Eric O’Keefe, quoted in M.D. Kittle, Wisconsin Watchdog profile of John Doe target Kelly Rindfleisch via @andrewmgrossman]
  • “I speak here of the rule of law, not the rule of feels.” [Ken at Popehat on BlockBot listings as non-defamation]
  • Rolling back SCOTUS’s First Amendment-based jurisprudence: “Hillary Clinton says she would support a constitutional amendment on campaign finance reform” [Washington Post]
  • “Court Rules San Diego’s Law Prof’s Blog Post Was Not Defamatory” [TaxProf]
  • “Another Day, Another Dumb New York Times Story on Corporations and Free Speech” [Damon Root, Reason, vs. Times columnist Timothy Egan]
  • Sounds promising: Robert Corn-Revere has a book in the works on free speech [Ronald K.L. Collins, Concurring Opinions]

Wisconsin: “This is what democracy looks like”

“After Wisconsinites vote to amend the state constitution to change how the state supreme court’s chief justice is selected, Shirley Abrahamson sues in federal court to keep her position under the old provision.” Abrahamson’s ten-year term as judge will continue in either case, but under the change just approved by Wisconsin voters, the position of chief judge will no longer be assigned by seniority. [Ann Althouse, whence also the “what democracy looks like” line; & welcome Instapundit readers] More: Rick Esenberg.