Archive for November 2008
CFAF: FCC said ban would “constitute a prior restraint”
A judge has upheld a ban on radio ads sponsored by the Coalition for America’s Families, the Milwaukee Journal Sentinel reports.
In a press release issued Sunday morning, the Coalition for America’s Families (CFAF) said Jackson County Circuit Court Judge Thomas Lister was told by the Federal Communications Commission that a temporary restraining order against radio stations would be unconstitutional. Here’s an excerpt of the press release:
“Judge Lister said he was informed that an action was headed his way early Friday afternoon at which time he contacted the FCC. The FCC informed the Judge that a temporary restraining order against the radio stations would constitute a prior restraint of free speech and would therefore be unconstitutional.”
However, the temporary restraining order is not against the radio stations, but is instead against CFAF.
The CFAF is also arguing that Radcliffe does not have the authority to seek civil relief under Wis. Stat. § 12.05. The press release appears to include a portion of CFAF’s motion:
8. The entry of this ex parte temporary restraining order at the request of a private party is unprecedented given that Wis. Stat. § 12.05 is not a statute that provides for civil relief or a private cause of action. Instead, it is a statute that must be initiated and prosecuted by the State. “[T]he decision to prosecute a possible violation of a criminal statute is ordinarily within the discretion of the District Attorney or the Attorney General.” Tatur v. Solsrud, 174 Wis.2d 735, 744 (1993) (examining and rejecting civil application of Wis. Stat. § 12.05).
Update: (2:04 p.m.) Assembly candidate Mark Radcliffe has released a statement in response to today’s ruling, which can be found here. An excerpt:
“Upon hearing their false ad I decided to draft and file an action against them asking the court to preserve my rights against such false statements. I am a solo practicing attorney and as such have always fought for the rights of those who otherwise wouldn’t have a strong voice.”
Isn’t this prior restraint? And isn’t it unconstitutional?
The Milwaukee Journal Sentinel is reporting that a Jackson County judge has temporarily ordered a stop to political radio advertisements being run by Middleton-based Coalition for America’s Families. The ads attack Assembly candidate Mark Radcliffe, a Democrat.
Here’s a link to the story. The Journal Sentinel writes:
“A judge’s apparently unprecedented decision Saturday to order a halt to political ads before hearing from the ad’s sponsors drew immediate criticism as an unfair restraint of free speech.”
Jackson County Circuit Court Judge Thomas Lister said the Coalition for America’s Families likely violated Wis. Stat. § 12.05, which says that “No person may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” Lister also said it is likely that the Coalition for America’s Families “has made false statements with actual malice regarding plaintiff (Radcliffe).”
Lister is defending his ruling. He’s quoted in the Milwaukee Journal Sentinel as saying:
“The law, I think, called for it.”
On Saturday night, the Associated Press filed a wire story as well, including comment from Coalition for America’s Families’ spokesman R.J. Johnson. The AP quotes Johnson:
“We are immediately filing an appeal to protect our Constitutional right to discuss ideas of public importance freely and without government interference,” Johnson said in the statement. “That the judge has chosen to protect a partisan political ally at the expense of the U.S. Constitution is unconscionable.”
Assembly Democratic Campaign Committee Director Jim Smith hailed the ruling in a press release sent out on Saturday.
“This is a historic day for clean elections in Wisconsin,” said Smith. “I am asking all media to immediately take heed of the temporary restraining order issued by Judge Lister this morning and stop playing these false ads.”
A hearing on the matter is expected to take place on Sunday.
- Download a copy of the Temporary Restraining Order
- Download a copy of the letter sent from Radcliffe’s attorney to radio stations
- WisPolitics.com: Coalition for America’s Families press release
- WisPolitics.com: DPW press release
- WisPolitics.com: RPW press release
