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View Diary: CEO who threatened workers if they voted for Obama violated Wisconsin law (208 comments)

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  •  Well, if you believe in the First Amendment (2+ / 0-)
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    GeoffT, VClib

    you can't really say that.  Nobody should have to "sit and sweat it out in a courtroom" for exercising a constitutionally protected right.

    Before a prosecutor would even bring charges, he would have an obligation -- ethically and legally -- to consider whether bringing charges in this particular case  would violate the First Amendment.

    •  The law still is on the books (0+ / 0-)

      With its presumption of constitutionality - something emphasised by the courts that overturned voter ID requirements and parts of Act 10.  It is not up to prosecutors to decide that a law is de facto unconstitutional, and definitely should not be.  If the law is overly broad, then it should be struck down by the courts, not prosecutors.  (If the words of the threat in this case are sufficiently guarded that a prosecutor doesn't see a realistic chance of a conviction, that is a different matter).

      If the employers truly felt that their First Amendment rights were being subject to prior restraint by this law, they could have challenged it at any time since 1973 before jumping out and making these threats.

      They completely failed to do so, so the repercussion of having to challenge it while defending themselves in court is entirely on their own heads.  Or should be.

      Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

      by GeoffT on Fri Oct 26, 2012 at 12:57:56 PM PDT

      [ Parent ]

      •  All I am saying is that (2+ / 0-)
        Recommended by:
        VClib, GeoffT

        a prosecutor has an ethical and legal obligation to consider the First Amendment issue prior to charging. Many states have laws on the books that have effectively been rendered unconstitutional by some Supreme Court decision; what those prosecutors do is recognize that and no longer enforce those laws.   Legislatures don't go back and repeal laws that are effectively rendered unconstitutional by a Supreme Court Decision.  For example, I'd bet a lot of money that there are states that didn't formally repeal their similar -- but not exactly the same -- sodomy laws after Lawrence v. Texas declared the Texas law to be unconstitutional. Instead, the laws in other states technically stay on the books (because the Legislature does not formally introduce a bill to repeal the law) and they are never enforced because prosecutors do their legal duty to analyze the law pursuant to a subsequently rendered Supreme Court case, and decide not to prosecute under an unconstitutional law even when it has not expressly been declared unconstitutional.  If a  prosecutor is faced with a situation where someone violated a sodomy law that effectively (but not explicitly) was rendered unconstitutional under Lawrence v. Texas reasoning and analysis, and he said what you said -- let him sit in court and sweat it out until the court declares THIS specific state's  law unconstitutional -- that prosecutor is not fit to hold office.

        The case I quoted from is from 2003. A prosecutor has a legal and ethical duty in a matter like this to consider whether the 2003 Supreme Court decision would effectively render that part of the law unconstitutional BEFORE charging.  

        •  That's clear enough in the case you cite (0+ / 0-)

          But not in the case of §12.07(3).  Neither the SCOTUS nor the WisSC have ruled that the First Amendment allows employers to make threats against their employees like this (or if they have, it's flown under my radar).  It's clear enough the First Amendment doesn't give carte blanche invalidation of laws against slander, libel, calling in fake bomb threats etc, so the courts are clearly happy with at least some restrictions on speech.  Unless a decision in the mold of Lawrence v. Texas from a higher court already exists, there are no grounds at all for prosecutors to decide that §12.07(3) is bound to fail the test of constitutionality.

          Deciding whether or not it's constitutional for an employer to threaten their employees is definitely a decision for the courts, not for prosecutors to make.  Prosecutors are surely bound to enforce the law as it exists and not to usurp the authority of the courts in the absence of a Lawrence-type precedent.

          Only reference to §12.07(3) that I could find offhand is in Wisconsin v. Jensen, Foti and Schultz where the Wisconsin Court of Appeals didn't seem to display any constitutional reservations about it.

          Fake candidates nominated by the GOP for the recalls: 6 out of 7. Fake signatures on the recall petitions: 4 out of 1,860,283.

          by GeoffT on Fri Oct 26, 2012 at 07:42:36 PM PDT

          [ Parent ]

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