Court protects political speech,but only in the future, not now

OK, I have to ask: Did anyone actually read the Wisconsin Supreme Court's opinion in Lassa v. Rongstad, or did they just read the caption and put out their press releases?

I ask that question, seriously, based on these comments made to WisPolitics:

"I hope this case will serve as an example to those contemplating anonymous and defamatory campaign attacks and will result in less negative campaigning in Wisconsin." -- State Sen. Julie Lassa.

Lassa attorney Ed Garvey said the decision would change the way some interest groups operate, making them think twice about running attack ads that “libel people and slime them... Everyone who runs for public office should thank Julie Lassa,” Garvey said.

"Had Rongstad won, it would have opened up the floodgates for a lot more of these kind of last-minute, under-the -radar-screen type of attacks by interest groups who felt they didn’t have to report anything," Jay Heck of Common Cause said. "It certainly is a victory for those who believe there should be transparency and who believe the voters should know who’s paying for these attacks."

Wisconsin Manufacturers & Commerce spokesman Jim Pugh said the decision was a "tremendous victory for free speech." The decision distinguished clearly between "libelous speech" and issue advocacy, Pugh said, and means in future cases libel must be established before disclosure of donors can be ordered, he said.

"This decision set the bar high for future disclosure," Pugh said. "We see it as a victory for free speech."

Pugh is closer to being accurate than Lassa and Garvey. Heck's comments are in a parallel universe, since the decision did nothing to improve transparency.

A key fact that seems to be missing from the discussion of the complicated case is this: There was never a determination on the merits of the case. No hearing has ever been held on the question of whether the material Rongstad published about Lassa, and mailed to voters in her district, was actually defamatory.

Rongstad and his lawyer argued that his motion to dismiss the case as having no merit should have been decided before the original hanging judge, Michael Nowakowski, ordered Rongstad to disclose the members of his group. Nowakowski made it clear he hated everything he thinks Rongstad, who marketed himself as a "political hit man," represents, and rushed to judgment instead. Rongstad would have argued that the material was not defamatory, was substantially true (truth is a defense) and that as a public figure Lassa was a legitimate target for criticism. But he never got the chance to make that case.

The Supreme Court agreed that the proper procedure is to decide on the merits of a dismissal motion first -- but did not apply it in this case. So what WMC hailed as a victory for free speech is a victory for future free speech, perhaps, that does not help Rongstad one bit.

He was ordered to cough up the names of members and donors and held in contempt of court when he didn't comply. That finding, and $65,000 in fines, were what was on appeal to the high court. Whether he defamed Lassa was not an issue; in fact, as part of the settlement the defamation claim was dismissed with prejudice.

Three of the seven justices -- Jon Wilcox, Patrick Crooks, and Patricia Roggensack --recused themselves, presumably because of political entanglements. That left Louis Butler, Shirley Abrahamson, and Ann Walsh Bradley concurring in the opinion. So the three liberals, who hate the kind of nasty stuff Ronstad does, expressed their distaste and hung Rongstad out to dry, while protecting others from the same treatment in the future.

Conservative David Prosser's dissent is a remarkably clear presentation of what really happened in the case and a strong defense of the First Amendment and anonymous political speech, which is what the case was really all about.

Lassa didn't file the suit because she was defamed; she and Garvey filed the suit to try to find out who was behind the mailing -- and it worked.

Prosser describes the case as "a defamation suit by a public official who was criticized during a contested election campaign...the case is at the epicenter of First Amendment principles."

He called the action a SLAPP suit -- a Strategic Lawsuit Against Public Participation. It's a term used in other states to describe lawsuits filed to intimidate people and shut them up.

Prosser called the mailing "offensive and unfair" but said that if the court considered it line by line it would find the mailing was not defamatory.

"This case will prove without a doubt to be a significant libel case, not necessarily for the law it has promulgated, but for the fact that a public figure defamation plaintiff got everything she wanted without ever proving defamation." (Emphasis mine.)

"From the beginning, the circuit court treated this case as though the plaintiff were helplessly chained to a railroad track with a speeding train just around the bend," Prosser wrote. "The facts never supported such urgency." Lassa was quite capable, he said, of defending herself, and didn't even file the lawsuit until two months after she was reelected to the Assembly with 73% of the vote.

There's plenty more. Prosser's dissent is well worth a read. His conclusion: "Because I fear the majority decision chills freedom of expression not only for members of the Alliance (Rongstad's group), but for all Wisconsin citizens, I respectfully dissent."

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Now for the required disclaimers. I am not a lawyer, as blogging attorney Rick Esenberg and others often remind me. I had no involvement in this case or any knowledge of the mailing in question, and I have never met Todd Rongstad. I did work for Alex Paul, the candidate who opposed Lassa in the State Senate primary, more than a year after the mailing. During that campaign, Garvey threatened several times to despose me in the Rongstad case, although I knew nothing about it, but he never actually did.

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UPDATE: Rick Esenberg tells it like it is:

The issue was complicated here by the fact that defamation suits by public officials face a huge uphill battle rooted in the First Amendment. The subtext of this case was that Lassa's case was a piece of crap. There was no way she was going to win. It was all about the names.

UPDATE 2: Tom Sheehan of the LaCrosse Tribune calls the decision a blow to anonymity.