In late June, the Wisconsin Supreme Court ruled unanimously that the First Amendment protected a person's right to publicly poop on the American flag. In the same month, it cited the First Amendment in striking down a law that prohibited nude dancing. But the First Amendment will be no defense when you call a politician a liberal, if the Badger State's attorney general gets his way.
The Wisconsin Elections Board is suing Wisconsin Manufacturers and Commerce, the state's largest business advocacy group, for a series of radio, print, and television ads that, among other things, claimed one candidate seeking re-election never "met a tax he didn't like" and called another a "liberal." (See "Just Shut Up," Citings, January, and "The Summer of Reform," Citings, August/September.)
Although the board's own attorney advised that the ads were not actionable under long-established legal precedents, the board decided to fine the WMC anyway. The parties were soon in state court, and the case was dismissed.
But the speech police haven't given up. Appealing the decision, state Attorney General James Doyle argues that political speech standards, like obscenity standards, should be developed "on a case-by case basis. If a state law that regulates obscene material is" constitutional, reasons Doyle, "then states can apply the standard [to political speech]."
Not likely. There's little dispute among constitutional scholars that the First Amendment offers sweeping protections for political speech, especially messages directed at government officials. And the U.S. Supreme Court considers speech obscene (and therefore illegal) only if it is determined to have no "significant scientific, literary, artistic or political value."