Monday, December 05, 2005

WI Supreme Court to Consider Anonymous Political Speech.

Hat Tip: The Skeptic

The Wisconsin Supreme Court must take on a case involving anonymous attack ads. The case is a defamation case and involves the names of anonymous donors who supported a very negative attack ad.
The case centers on Lassa's November 2002 re-election campaign for the Assembly seat she then held. Days before the election, a group called the Alliance for a Working Wisconsin sent voters a postcard linking Lassa, who was then in the Assembly, to Senate Majority Leader Chuck Chvala (D-Madison), who had recently been criminally charged.

Chvala was convicted last month of two felonies for having a Senate aide campaign on state time and for illegally shifting cash in 2000 into the campaign account of then-Sen. Mark Meyer (D-La Crosse). Seventeen other charges, including extortion, were dropped as part of a plea deal.

The attack ad alleged "Lassa Wanted To Be A State Senator, So She Hooked Up With Chuck Chvala" in a headline superimposed over Chvala's mug shot. It ended with a plea to voters to call Lassa and other lawmakers to ask them "will you please clean up your act?"

The plaintiff in the case has suffered in his business and is arguing that the mailing was not actually found to be defamatory, but because of the contempt fines accumulating, he was forced to dislcose the name of his contributor.

The settlement deal allowed Rongstad to appeal the payments, and he has now taken the case to the Supreme Court on constitutional grounds. He argues that he shouldn't have to pay the $22,000 or the legal fees because the court had not determined that the postcard was defamatory when it ordered him to reveal who was involved in the group that paid for the ad.

Rongstad's issue advocacy work disappeared as soon as he agreed to tell the court about his contributor.

"Once the political candidates got a whiff of the idea I could actually be forced to release contributors, people wouldn't return my calls," Rongstad said. "(The case has) been devastating, so they've been successful on that front because it completely chilled my business."

While the ad was dirty politics, the First Amendment makes no distinction between dirty and clean politics. The ad, a "guilt by association" ad is apparently nasty, but no rougher than other attack ads.

What is troubling for me is the requirement to disclose the funding source. Now, if this is the work of a political committee, there are campaign finance disclosure rules that require reporting who gave money--a series of facts Lassa could easily have found. If the money came from an individual, the individual may have made an independent expenditure subject to campaign finance laws.

It seems to me though, that the NAACP case from the civil rights era (I can't remember the name) and/or the Ohio v. McIntyre case would control in this regard. The Court should not be shortcutting the plaintiff's responsibility by assessing contempt fees.

No comments: