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A Project of The Annenberg Public Policy Center

Judge’s Attack Ad Draws Complaint

Last spring’s Supreme Court race in Wisconsin featured some ugly ads, so ugly that we wrote about the false or misleading claims in them several times. Now, one of the worst of those spots (in our humble opinion) is the subject of a complaint by the Wisconsin Judicial Commission. The proceedings could alter the tenor of ads used in Wisconsin court races.

The ad was sponsored by the campaign of a lower court judge, Mike Gableman, who was challenging Supreme Court Justice Louis Butler for his seat. We said it “falsely implies that Butler was responsible for freeing [a] rapist and allowing him to commit another sexual assault.” The ad made it sound as though Butler, as a judge, used a legal technicality to free the accused, sending him out into the community to engage in further criminal behavior. The truth, though, was that Butler was a public defender at the time (not a judge) whose client was the defendant in this case; he said the judge who presided over his client’s trial had committed an error that entitled the defendant to a new trial. But the state Supreme Court didn’t see it that way. Butler’s client remained locked up until he was paroled years later. Several years after that, he was convicted of another rape.

On top of that, the ad paired a photo of Butler, who is African American, with a mug shot of the rapist, also black, in a way that seemed to make a point similar to that of the infamous Willie Horton ad that was run against Democratic candidate Michael Dukakis in the 1988 presidential campaign.

At the time, the state’s Judicial Campaign Integrity Committee as well as several newspaper editorial boards called for Gableman to take the ad off the airwaves. He refused. And he won the contest with Butler, unseating an incumbent Supreme Court justice in Wisconsin for the first time in more than 40 years.

But the ad has come back to haunt him. This week, the independent Wisconsin Judicial Commission, wrapping up an investigation it began in April, accused Gableman of willfully violating the Wisconsin Code of Judicial Conduct by misrepresenting the facts “knowingly or with reckless disregard for the truth.” The commission calls for Gableman to be disciplined for judicial misconduct.

A statement from Gableman’s attorney said that “the commission has intentionally disregarded the First Amendment. No candidate for office sacrifices his right to freedom of speech.”

The next step is for the chief judge of the Wisconsin Court of Appeals to select a panel to hear the complaint. The panel will make a recommendation to the justices of the state Supreme Court — minus Gableman — who will decide whether, and how much, to discipline their colleague. If Gableman wins this fight, it could open the floodgates for more attack ads that stretch the truth. But if he’s reprimanded or worse, future ads in Wisconsin court races may hew more closely to the facts.