First Amendment Rights at Stake in Wis. Political Speech Case

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It is 3 a.m. when the pounding begins. You awake in daze, your dog is barking, your children are frightened and you can hear voices yelling at the front door. You look outside to see armed police officers, poised with a battering ram, ready to break into your home. You run, half-dressed, to the door, quickly inch it open, and suddenly the police are everywhere. Two of them drag your children out of bed, another is shouting at your husband who is desperately trying to calm down the dog, three more are grabbing your computers, and laptops, and cellphones. Another tells you to sit down and shut up or he will haul you out of the house in handcuffs. As you shiver in fear, your only thought is: What did I do? What crime did I commit that warrants such an aggressive and intimidating response?

You wrote an article publicly criticizing the local sheriff and his policies.  

Such a hypothetical seems unreal, like a scene from Orwellian science fiction or the Soviet Union. Surely it is impossible in present day America. The sad reality, however, is that such raids have already been conducted here in the United States, and the tactic by prosecutors has the potential to silence any speaker criticizing those in power, including reporters and bloggers. 

Victims of such abuses in Wisconsin went to court to stop it, and won in a federal District Court. But the 7th Circuit Court of Appeals slammed the courthouse door on the case, ruling that federal courts are not the place to contest abusive investigations by state officials. Now the plaintiffs’ last hope lies with the U.S. Supreme Court. 

This case, along with another in Arizona, illustrates the danger from such tactics and the split rulings in these cases require a resolution from the high court.  

On the night of October 18, 2007, Maricopa County, Ariz., Sheriff Joe Arpaio ordered his Special Enforcement Unit to arrest Michael Lacey and Jim Larkin, the owners of The Phoenix New Times, a small, freely distributed newspaper that had published Arpaio’s home address as part of a story about his commercial real estate holdings. The nominal crime was the violation of an obscure state statute that criminalized the publishing of personal information about a police officer if there was “an imminent threat” against that officer.  

This was a ruse; Sheriff Arpaio’s address was publicly available from numerous other outlets and Arpaio -- once dubbed the toughest sheriff in America -- had no evidence he was threatened. The real reason for the arrest, one that further court proceedings confirmed, was that the paper had published numerous articles over two years critical of Arpaio and his supporters in the county attorney’s office. 

Thankfully in this case, the 9th Circuit Court of Appeals allowed the victims to sueThe right to speak freely without fear of retaliation by prosecutors won the day and Maricopa County was forced to pay a $3.75 million settlement for the abuses. 

But not all courts have been willing to stand up to those in power who use their position in the government to intimidate and silence.  

Unhappy with Gov. Scott Walker’s political and policy victories in 2010, Milwaukee County District Attorney John Chisholm launched an investigation of nearly every conservative organization that supported Walker’s reforms. The extraordinarily broad “John Doe” investigation, complete with pre-dawn armed police raids and gag orders preventing the targets from speaking publicly about the case, was purportedly meant to find violations of campaign finance statutes -- theoretical coordination between these organizations, created to voice their political beliefs, and Governor Walker’s campaign. Not a single judge has agreed with any of these theories. In fact, the state’s attorney general and election-law regulator both repudiated them.

As in Arizona, this premise was little more than a ploy. Chisholm, according to a fellow prosecutor, “felt it was his personal duty to stop Walker,” and any means were apparently justifiable to reach these ends. This included investigations on the thinnest of pretexts meant to intimidate groups and individuals from speaking out, along with attacks on those that did in order to send a message to all groups that free speech was no longer protected in Wisconsin.  Even if an investigation was justified, there is no justification for such heavy-handed and dangerous methods. 

Unless the Supreme Court takes their case, known as O’Keefe v. Chisholm, the victims of these bullying tactics, and others in the future, will never get their day in court.   

In the meantime, we should all decry these brutish governmental attacks on critics, which pose an enormous threat to First Amendment rights. Journalists, in particular, should rally behind these conservative speakers in Wisconsin -- at its core, this case is about the First Amendment -- and as the case in Arizona shows, when government officials are prepared to violate that most sacred constitutional protection, no one, whether part of the press or not, is immune. 

We should all speak out now, before the police begin pounding on the door at 3 a.m.

David Keating is the president of the Center for Competitive Politics, a nonprofit that works to promote and defend First Amendment rights to free political speech, assembly, and petition.

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