Vol. 85, No. 5, May 2012
A survey conducted shortly after the November 2010 elections found that 91 percent of the American electorate believed they had encountered false or misleading information during the campaign season. Republican and Democratic voters were equally likely to say that they had seen such information.1
Given that a vibrant democracy requires an electorate armed with facts, the survey raises the issue of what (if anything) should be done about misleading information in political campaigns. In Wisconsin the subject could not be more pertinent, given the sharp polarization of the state's politics2 and the prospect of several contentious elections in the near future, including a recall election for governor (in June) and elections for state and federal legislative seats and for president in November.
Wisconsin has three misdemeanor statutes that may be used against people who make intentionally false statements in political campaigns. The statutes prohibit false representations affecting elections,3 criminal defamation,4 and giving false information for publication.5 This article reports how the Wisconsin statutes have been used – and, in some cases, misused – over the past two decades.
Statutes that can be used to punish political expression tread on sensitive constitutional ground. If democracy requires an informed electorate, it also requires freewheeling and uninhibited debate about the wisdom of policies and the fitness of candidates. A well-established principle of constitutional law holds that the First Amendment protects false political speech unless it is made with "actual malice" – that is, that the speaker knew that her factual assertion was false or that she acted with reckless disregard for the truth or falsity of the assertion. The U.S. Supreme Court has upheld the actual-malice principle in several contexts, including civil libel when the plaintiff is a public official6 or public figure,7 criminal libel,8 "false light" reports on matters of public interest,9 and intentional infliction of emotional distress when the plaintiff is a public official or public figure.10 In contrast to knowingly false assertions of fact, statements of opinion or commentary are absolutely protected by the First Amendment. As the Supreme Court noted in 1974, "there is no such thing as a false idea."11
The goal of this article is not to analyze the laws, propose modifications to them, or predict how appellate courts might rule in cases involving them. Rather, it is to shed light on an interesting area of legal activity that some Wisconsin lawyers might know little about, because the cases receive little or no coverage in major news media and these circuit court cases are not included in Lexis or Westlaw databases. Most of the information reported in this article comes directly from case files in Wisconsin county courthouses.
After chronicling how each of the three statutes has been used to prosecute political speech, the article shows how campaign organizations have used the statutes to try to suppress expression by political opponents. The article closes with some suggestions about when it is (and is not) appropriate to use the statutes in the context of political campaigns.
False Representation Affecting Elections
In 1911, the Wisconsin Legislature adopted the Corrupt Practices Act, a progressive initiative widely considered the most sweeping campaign reform of its day.12 The Act included a section titled "False statements affecting candidates,"13 the ancestor of current Wis. Stat. section 12.05, which says: "No person may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." The penalty for violating section 12.05 is a fine of up to $1,000 and up to six months in jail.14
Although the late Gordon Baldwin, a U.W. Law School professor who chaired the state elections board in the early 1990s, once told a newspaper he thought section 12.05 was unconstitutional,15 the plain wording of the statute ("knowingly make or publish … a false representation") seems to satisfy the actual-malice test as defined by the U.S. Supreme Court. In other words, only knowingly false assertions of fact may be prosecuted. If a statement is commentary, opinion, or unwittingly false, it may not be the basis of a conviction.16
Two fairly recent cases from southeast Wisconsin involved section 12.05 prosecutions. In March 2000, Carlton Lord, a resident of the town of Fredonia in Ozaukee County, authored a letter published in a weekly newspaper 12 days before the town board election. The letter said that the town board had authorized spending $19,000 to study installing sewer service in the unincorporated hamlet of Waubeka. Lord's letter also said that the study would ultimately cost $50,000 or $60,000, and it urged readers to raise questions about the issue with the two incumbent board members who were up for reelection.17
Lord had apparently mistaken a town board discussion of the Waubeka Area Sanitation District's cash balance, which was a little more than $19,000, for plans to install sewers in Waubeka. Neither the town board nor the sanitation district had any plans to study sewers for Waubeka.18 In May 2001, the false-representation-affecting-elections charge was reduced to harassment.19 Lord pleaded no contest and was ordered to pay a fine of $100.20
In 2008, the Republican candidate for the 24th district seat in the Wisconsin Assembly, Dan Knodl, was charged with violating section 12.05 by making false statements in a campaign flier.21 The flier listed as Knodl supporters several people who had not endorsed him. Because the Washington County district attorney was a supporter of Knodl, the district attorney of neighboring Ozaukee County (interestingly, the same person who had prosecuted Carlton Lord) acted as special prosecutor. Knodl told police that the mistakes in his campaign literature were the result of carelessness, and he publicly apologized.22
Although the section 12.05 charge was filed amid considerable publicity only 10 days before the election, Knodl won the Assembly seat with 62 percent of the vote. Two months after the election, the charge was reduced to disorderly conduct.23 Knodl pleaded no contest and was fined $250.24
Although defamation is most often a civil matter, Wisconsin law has allowed criminal penalties for defamation since the 1830s.25 Over the course of the 20th century most jurisdictions in the United States abolished their criminal defamation statutes, but such laws remain on the books in Wisconsin and approximately 15 other states.26 Prosecutions rarely make headlines or reach appellate courts, leading some observers to conclude that criminal defamation is no longer prosecuted. The authors of a recent communication law textbook, for example, asserted that there had been no criminal defamation prosecutions in the United States in the past 50 years.27
Whatever the case may be in other states, criminal defamation is alive and well in Wisconsin, with more than 60 prosecutions (and at least 23 convictions) between 1991 and 2007.28 Defamation is a Class A misdemeanor, punishable by a fine of up to $10,000 and up to nine months in jail.29 The constitutionality of the criminal defamation statute is not in doubt, so long as prosecutions of statements about public officials or public figures are consistent with the actual-malice principle.30
Since 2000, five Wisconsin residents have faced criminal defamation charges stemming from communication related to political campaigns. In 2001, three men anonymously produced hundreds of fliers that made bizarre allegations about a candidate for Walworth village president, and distributed them shortly before the election. Among other things, the fliers said that the candidate had served on death row, had been fired because he molested children, and had taken part in lynchings as a member of the Ku Klux Klan. In addition, the fliers depicted the candidate's head atop a nude male body. All the defamatory assertions were false; each of the three perpetrators was charged with both criminal defamation and disorderly conduct.31
Each defendant chose a different legal strategy. One pleaded guilty to both criminal defamation and disorderly conduct; he was sentenced to 45 days in jail with work release, two years of probation, and a fine and costs of $765.32 A second defendant pleaded guilty to criminal defamation. The disorderly conduct charge was dismissed, but the defendant was sentenced to five days in jail and $1,345 in fines and costs.33 The third defendant pleaded not guilty and demanded a jury trial. His lawyer presented a defense based on the First Amendment, asserting that the flier was a satiric parody about a public figure and thus was protected speech.34 The jury may have been swayed by this argument because it acquitted the defendant of criminal defamation, finding him guilty only of disorderly conduct. He was ordered to pay $1,289 in fines and costs.35 Despite the jury trial and the First Amendment defense, none of Wisconsin's major newspapers reported on the case.
A case from Dane County also involved an anonymous parody and a political candidate. Patrick DePula had been a member of the Dane County Board, but when he ran for reelection in 2002, he was defeated by another man, Don Eggert. In 2004, Eggert won a second term on the board. Two days after that election, DePula, who had learned via Internet searches that Eggert had made posts in the 1990s to alt.sex.bestiality, wrote an email to the county executive and others, making it appear that the email came from Eggert. The email proclaimed Eggert's "affinity for animals of all types," and asked for an appointment to the county zoo commission. The email also asked about the prerogatives of zoo commission members, including, "As a Zoo Commission member, do I get to spend any time alone with the animals?" and "Can I sleep over with the more cuddly ones?"36
DePula was charged with identity theft for the purpose of harming the reputation of the person whose identity was appropriated, a felony.37 He mounted a First Amendment defense, saying that his message was a parody similar to the political satire featured on "The Daily Show" with Jon Stewart, but the judge rejected the argument.38 DePula lacked the resources to pursue an appeal of the judge's rejection of the First Amendment defense,39 so he agreed to plead guilty to a reduced charge of criminal defamation. He was fined $1,000 and ordered to perform 250 hours of community service.
A First Amendment defense was more successful in a 2003 case. During the campaign for village officers of Boyceville, a community of about 1,000 people in northwest Wisconsin, the local weekly paper published a letter alleging that the village president was "shamelessly" using his $35 per diem allowance from the village "as a private bank." The letter stated, among other things, that village funds were being used to pay the home telephone bill of the village president.40 The village president complained to the Dunn County district attorney, who asked the Boyceville police chief to investigate. After the village clerk told the police chief that the village had never paid the home phone bill of the village president, a charge of criminal defamation was filed against the author of the letter, Robert Schmitt. Schmitt represented himself in the case, filing a rambling, handwritten motion for dismissal of the charge on First Amendment grounds. The most pertinent part of Schmitt's motion argued that any false statements in his letter were not the result of actual malice. He did not use the term "actual malice," however. Instead he wrote: "Other information was given as a reasonable belief certain situations did exist and such belief under the circumstances of the printed public record was a reasonable conclusion."41 The court granted the requested dismissal.
Giving False Information for Publication
In 1947, the Wisconsin Legislature adopted a law making it illegal to give false information for publication. The current version of the statute, Wis. Stat. section 942.03, reads: "Whoever, with intent that it be published and that it injure any person, and with knowledge that it is false, communicates to a newspaper, magazine, or other publication any false statement concerning any person or any false and unauthorized advertisement is guilty of a Class A misdemeanor."42 Although no appellate court has addressed the constitutionality of section 942.03, the actual-malice principle appears to be satisfied by the statute's "with knowledge that it is false" language.
Section 942.03 is often considered to pertain to advertising,43 but in the past 20 years the statute has been used against two people accused of communicating knowingly false statements to newspapers in the heat of political campaigns.
One of the cases involved Boyceville and Robert Schmitt. Several months after the criminal defamation charge against Schmitt was dismissed, authorities filed against him two charges of giving false information for publication – one for the original letter in the newspaper, and one for a second letter again criticizing the village president for improper expenditures.44 Schmitt, still representing himself, filed a motion for dismissal.45 The motion was identical in most respects to the motion he had filed in the earlier case, and again the charges were dismissed.
Help Locate Civil Cases Involving Defamation, Libel, Slander
David Pritchard hopes Wisconsin lawyers can help him in a research project.
Pritchard, who teaches communication law at U.W.-Milwaukee, is building a list of Wisconsin civil cases that involve at least one allegation of defamation, libel, or slander. He is particularly interested in cases filed between Jan. 1, 2000, and Dec. 31, 2011, in either state or federal court.
No one in Wisconsin maintains a comprehensive library of cases involving defamation, libel, or slander. Although Pritchard has located approximately 200 state and federal cases via the Internet, he strongly suspects he is missing a considerable number of cases, especially those that received little publicity.
After compiling a list of cases, Pritchard will gather information from case files in courthouses statewide. He will code key aspects of the cases, and will perform a statistical analysis to search for patterns in the data that could help explain case outcomes and may even help to predict the outcomes of future cases.
If you are aware of any cases involving defamation, libel, or slander since January 2000, please email Pritchard the case number or the parties’ names. He will provide a report of the research results to anyone who helps him add a case to his list. Contact him at David.Pritchard50@gmail.com.
A section 942.03 prosecution in the early 1990s, however, led to a conviction. The Sunday before the 1992 fall elections, a letter published in the opinion section of the La Crosse Tribune urged readers to vote a straight Republican ticket. The letter was signed with the name of a well-known La Crosse-area woman who was a member of the Democratic Party. When the woman saw the letter in the paper, she complained to the opinion page editor, who furnished the handwritten original of the letter to police. It turned out that the letter had been sent to the newspaper by Gerald Reuteler, an avid Republican who hoped that the false signature would sway votes. Reuteler was charged with violating section 942.03. He pleaded no contest and was fined $100 and placed on nine months' probation.46
Threatened Legal Action as Campaign Tactic
A Google search for "12.05" reveals that threats by political campaigns to take legal action against their opponents on the basis of one or more of the statutes described above are more common than actual prosecutions. Candidates' lawyers sometimes deny making threats when they write letters to the rival camp evoking the possibility of damages, fines, or jail terms. One candidate's attorney, for example, wrote to the opponent's attorney: "My objective is not to threaten your client with penalties but to protect the public from false, misleading and deceptive statements." But the letter noted that if the opponent did not stop making certain statements, she could face up to six months in jail.47
Whether such missives constitute threats may be a matter of interpretation, but Republicans and Democrats alike send them fairly often. Campaigns sometimes ask a district attorney to investigate possible violations of section 12.05 by the opposing campaign. Less than one month before the 2010 election for Wisconsin governor, for example, Scott Walker's campaign manager filed a "verified complaint" with the Brown County district attorney, asking him to investigate the campaign of Tom Barrett for violating section 12.05 by airing campaign ads containing allegedly false and misleading statements about Walker. No criminal charges were filed against Barrett or his campaign but the complaint resulted in significant news coverage,48 which may have been the campaign manager's goal. Democrats have also filed "verified complaints" with the Brown County district attorney about television ads airing in the important Green Bay/Fox River Valley media market.49
Sometimes lawyers for campaigns send complaints directly to broadcast stations, demanding that they stop airing allegedly false ads. In 2010, for example, a lawyer for U.S. Rep. Steve Kagen sent identical letters to four Green Bay television stations, claiming that an ad from an advocacy group was "false, misleading and deceptive." The letters warned that any further dissemination of the ad could make a station liable for damages for libel and possible prosecution under section 12.05.50
A similar "threat" made front-page news throughout Wisconsin51 shortly before the election in November 2008 because a judge ordered an advocacy group to stop disseminating radio ads that contained "outrageous lies used for the sole purpose to affect the outcome of the upcoming 2008 General Election," according to the lawyer for an Assembly candidate.52 The judge's order – issued on the Saturday before the election without the group sponsoring the ad being able to respond – stated that the candidate "has shown an ultimate probability of success that the defendant has violated Wisconsin Statute Sec. 12.05 and that defendant has made false statements with actual malice regarding plaintiff."53 On the day before the election, the court of appeals allowed the ads to return to the airwaves, ruling among other things that section 12.05 does not provide authority for prior restraint of communications.54
This article has shown that three Wisconsin statutes have occasionally been used to prosecute people for allegedly making false statements in the context of political campaigns. The information in the circuit court files does not address two broader issues, however. The first is the definition of the concept "false statement." The second is the wisdom of using the criminal law rather than corrective speech to combat untrue or misleading statements during political campaigns.
In Wisconsin, it is impossible to discuss the first issue without considering the Wisconsin Supreme Court's ruling in the case involving a controversial television ad aired in 2008 by Michael Gableman, who was seeking election to the supreme court. Gableman, then a Burnett County circuit judge, was mounting an ultimately successful challenge to incumbent Justice Louis Butler. Gableman's television ad juxtaposed two seemingly true statements – "Butler found a loophole" (for accused child molester Reuben Lee Mitchell) and "Mitchell went on to molest another child" – to create the false impression that Butler, while working as a public defender years before he became a justice, had helped a guilty man walk free to commit another crime.55 In fact, Mitchell went to prison after being found guilty in the case in which Butler represented him. Mitchell was released on parole in 1992, and three years later was convicted of a second sexual assault of a child.56
The state supreme court split 3-3 (Gableman did not take part) on the issue of whether the juxtaposition of the two statements in the ad constituted a false statement. Justice Prosser, Justice Roggensack, and Justice Ziegler pointed out that "each statement in the advertisement is true," and thus the ad was protected by the First Amendment.57 Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, in contrast, stated that "several literally true sentences can be strung together to communicate an objectively false statement."58 They concluded that "the advertisement knowingly (or with reckless disregard of the truth or falsity of the statements) communicated the falsehood that Louis Butler's conduct as Mitchell's defense attorney in finding a ‘loophole' facilitated Mitchell's release and later offense."59 The split decision in the Gableman case suggests that the only kind of statement a majority of the state supreme court would deem to be unambiguously false, at least in the context of political speech, would be an objectively false sentence.
As for the issue of the wisdom of using the criminal law against political speech, the facts of the prosecutions described in this article suggest that district attorneys may have overreached in most of the cases.
Neither of the two section 12.05 cases, for example, involved intentionally false statements intended to influence the outcome of an election. Lord made an apparently honest mistake after a confusing discussion at a town board meeting. The best remedy for his erroneous letter to a weekly newspaper would have been corrective information. Meanwhile, Assembly candidate Knodl acknowledged that he had been careless in putting together his list of supporters. He suffered the sting of negative publicity and apologized. The fact of his carelessness was before the voters when they went to the polls. No other remedy was required.
As for the criminal defamation cases, four of the five cases involved pranks featuring crude, sexually oriented parodies of candidates. Although the parodies were in poor taste, they were inherently unbelievable. The First Amendment would have little meaning if it did not protect such speech in political contexts. Three of these defendants pleaded guilty to defamation, with two of them being sentenced to time in jail. It is hard to see how the public interest was served by such a heavy-handed approach. The two defendants who were not found guilty of criminal defamation (one via dismissal, the other via acquittal) made explicit First Amendment arguments. Prosecutors in all of these cases should have been more sensitive to the issue of freedom of political speech.
David Pritchard, Ph.D. U.W.-Madison 1984, is a journalism professor at U.W.-Milwaukee, where he teaches communication law. His current research focuses on defamation cases in Wisconsin trial courts and public-records litigation involving the University of Wisconsin. He has done contract research and consulting for the Federal Communications Commission and major media corporations in both the United States and Canada.
Meanwhile, one of the two defendants charged with giving false information for publication (section 942.03) had already won a dismissal of a criminal defamation charge for essentially the same behavior. He invoked the First Amendment again and, not surprisingly, won another dismissal. The other section 942.03 defendant – the one who signed a false name to a letter to a newspaper – made a clear attempt to influence the outcome of an election with a knowingly false statement. The severity of the charge against him was at least proportional to the gravity of his misdeed, although it is not clear why he was charged with violating section 942.03 instead of section 12.05 (false representation affecting elections).
Political speech is not automatically protected by the First Amendment. Intentional, calculated lies may be punished; at least 17 states have laws that forbid various kinds of false campaign speech.60 But the wisest course of action is to save criminal prosecution for the most egregious cases.61 The statutes discussed in this article should never be used against a sincere critic, a confused or careless partisan, or the perpetrator of a juvenile prank.
1 WorldPublicOpinion.org, Voters Say Election Full of Misleading and False Information (2010), http://tinyurl.com/24nkueu (last visited Jan. 25, 2012).
2 See, e.g., Craig Gilbert, Close elections seen in 2012, Milw. J. Sentinel, Nov. 13, 2011, at 1A.
3 Wis. Stat. § 12.05.
4 Wis. Stat. § 942.01.
5 Wis. Stat. § 942.03.
6 New York Times v. Sullivan, 376 U.S. 254 (1964).
7 Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967).
8 Garrison v. Louisiana, 379 U.S. 64 (1964).
9 Time Inc. v. Hill, 385 U.S. 374 (1967). See also Cantrell v. Forest City Publ'g Co., 419 U.S. 245 (1974). Wisconsin does not recognize the false-light tort. See Jacqueline Hanson Dee, The Absence of False Light from the Wisconsin Privacy Statute, 66 Marquette L. Rev. 99 (1982).
10 Hustler v. Falwell, 485 U.S. 46 (1988).
11 Gertz v. Welch, 418 U.S. 323, 339 (1974).
12 Carole J. Hynek, Campaign Financing in Wisconsin, Wis. Briefs, No. 01-9 (Legislative Reference Bureau), March 2001, at 1.
13 Chapter 650, Laws of 1911, § 94-17.
14 Wis. Stat. § 12.60(1)(b).
15 Jeff Cole, Prosecution for letter on candidates unconstitutional, experts say, Milw. J. Sentinel, Apr. 2, 2001, at 1A.
16 See, e.g., Hampel v. Mitten, 227 Wis. 598, 278 N.W. 431 (1938); Mattison v. Baudhuin, 270 Wis. 249, 70 N.W.2d 674 (1955); Skibinski v. Tadych, 31 Wis. 2d 189, 142 N.W. 2d 838 (1966).
17 Criminal complaint, State v. Lord, No. 2001-CM-77 (Ozaukee Cnty. Cir. Ct.).
18 Cole, supra note 15.
19 Wis. Stat. § 947.013(1m).
20 Criminal court record, Lord, No. 2001-CM-77.
21 State v. Knodl, No. 2008-CM-1572 (Washington Cnty. Cir. Ct.).
22 Dan Benson, Candidate Knodl faces charge, Milw. J. Sentinel, Oct. 25, 2008.
23Wis. Stat. § 947.01.
24 Knodl pays $250; campaign case ends, Milw. J. Sentinel, Jan. 29, 2009.
25 In 1839 criminal defamation was punishable by up to one year in the county jail. See Stats., Territory of Wisconsin (1839), at 382.
26 Eric Robinson, Criminal Libel and the Internet (2007), http://tinyurl.com/6rz3voj (last visited Feb. 1, 2012).
27 Dom Caristi & William R. Davie, Communication Law: Practical Applications in the Digital Age 107 (2012). See also Kent R. Middleton & William E. Lee, The Law of Public Communication 100 (8th ed. 2012) ("Some states still have criminal libel laws, but prosecutions are rare. There might not have been a successful prosecution in the last thirty-five years.").
28 David Pritchard, Rethinking Criminal Libel: An Empirical Study, 14 Comm. L. & Pol'y 303 (2009).
29 Wis. Stat. § 939.51(3)(a).
30 State v. Baron, 2009 WI 58, ¶ 53 n.15, 318 Wis. 2d 60, 769 N.W.2d 34.
31 State v. Gocek, No. 2001-CM-321 (Walworth Cnty. Cir. Ct.); State v. Kuss, No. 2001-CM-323 (Walworth Cnty. Cir. Ct.); State v. Mann, No. 2001-CM-322 (Walworth Cnty. Cir. Ct.).
32 Mann, No. 2001-CM-322.
33 Gocek, No. 2001-CM-321.
34 Kuss, No. 2001-CM-323 (citing Hustler v. Falwell, 485 U.S. 46 (1988)).
36 State v. DePula, No. 2005-CF-129 (Dane Cnty. Cir. Ct.).
37 Wis. Stat. § 943.201(2)(c) (2003).
38 See Steven Elbow, DePula Pleads Guilty to E-mail Defamation, Madison Cap. Times, Nov. 15, 2005, at C1.
39 See Ed Treleven, DePula Pleads to Defamation in E-mail Case, Wis. St. J., Nov. 15, 2005, at B1.
40 See Robert J. Schmitt, Letter to the Editor, Olson doesn't substantiate claims, Dunn County News, Jan. 5, 2003 (photocopy of newspaper clipping without page number in court file of State v. Schmitt, No. 2003-CM-108 (Dunn Cnty. Cir. Ct.)).
41 Motion for dismissal, Schmitt, No. 2003-CM-108 (Dunn Cnty. Cir. Ct. May 13, 2003).
42 Wis. Stat. § 942.03.
43 See, e.g., Marris v. Moran, No. 91-2763, 1993 WL 172569 (Wis. Ct. App. May 25, 1993); Gary Coll, Mass Communication Law in Wisconsin 53 (1996).
44 See Robert J. Schmitt, Letter to the Editor, Schmitt replies to Olson complaint, Dunn County News, Mar. 16, 2003 (photocopy of newspaper clipping without page number in court file of State v. Schmitt, No. 2003-CM-290 (Dunn Cnty. Cir. Ct.)).
45 Motion for dismissal, Schmitt, No. 2004-CM-290 (Dunn Cnty. Cir. Ct. Dec. 28, 2004).
46 State v. Reuteler, No. 1993-CM-28 (La Crosse Cnty. Cir. Ct.).
47 Letter from Michael S. Maistelman to Paul E. Bucher (Apr. 5, 2007), http://www.wispolitics.com/1006/070406MaistelmanLetter.pdf (last visited Feb. 2, 2012).
48 See, e.g., Patrick Marley & Larry Sandler, Walker campaign files complaint over Barrett ad, Milw. J. Sentinel, Oct. 11, 2010.
49 See, e.g., letter from Michael S. Maistelman to John P. Zakowski (Oct. 28, 2008), http://www.wispolitics.com/1006/large/081030_Brown_Co_DPW_letter.pdf (last visited Feb. 2, 2012).
50 Letters from Michael S. Maistelman to WBAY-TV, WFRV-TV, WGBA-TV AND WLUK-TV (Mar. 2, 2010), http://wispolitics.com/1006/100302_M_A_LAV_ad.pdf (last visited Feb. 4, 2012).
51 See, e.g., Dave Umhoefer, Judge halts group's radio ads in Assembly race, Milw. J. Sentinel, Nov. 2, 2008, at 1A.
52 Letter from Michael S. Maistelman to managers of various radio stations (Nov. 1, 2008), http://pressandpolicy.files.wordpress.com/2008/11/troletter.pdf (last visited Feb. 4, 2012).
53 Ex parte temporary restraining order, No. 2008-CV-204 (Jackson Cnty. Cir. Ct.).
54 Radcliffe for Assembly v. Coalition for America's Families, 2008-AP-2703-LV, http://www.wispolitics.com/1006/081103courtofappealsorder.pdf (last visited Feb. 4, 2012). See also Patrick Marley, Appeals court ruling let disputed election ads return on radio, Milw. J. Sentinel, Nov. 4, 2008, at 1A.
55 The ad can be viewed at http://www.youtube.com/watch?v=1haqLYB1cw0&feature=related (last viewed Feb. 4, 2012).
56 2010 WI 62, ¶ 5, 325 Wis. 2d 631, 784 N.W.2d 631.
57 Id. ¶ 24.
58 In re Judicial Disciplinary Proceedings Against Gableman, 2010 WI 62, ¶ 46, 325 Wis. 2d 579, 784 N.W.2d 605.
59 Id. ¶ 14.
60 Adam Liptak, Was That Twitter Blast False, or Just Honest Hyperbole? N.Y. Times, Mar. 6, 2012, at A18.
61 Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. Rev. 1107 (2006); William A. Williams, A Necessary Compromise: Protecting Electoral Integrity Through the Regulation of False Campaign Speech, 52 S.D. L. Rev. 321 (2007); Mark Spottswood, Falsity, Insincerity, and the Freedom of Expression, 16 Wm. & Mary Bill Rts. J. 1203 (2008).