E.D.Wis.: Armed raid for campaign finance records leads to enjoining investigation for First Amendment violation

Plaintiffs showed enough to enjoin a criminal investigation punctuated by armed raids on plaintiff’s home for campaign finance records for interference with First Amendment political and free speech rights. O’Keefe v. Schlitz, 2014 U.S. Dist. LEXIS 63066 (E.D. Wis. May 6, 2014):

This case requires the Court to decide the limits that government can place on First Amendment political speech. It comes to the Court with more than the usual urgency presented by First Amendment cases because the defendants seek to criminalize the plaintiffs‘ speech under Wisconsin‘s campaign finance laws. Defendants instigated a secret John Doe investigation replete with armed raids on homes to collect evidence that would support their criminal prosecution. Plaintiffs move for a preliminary injunction to stop the defendants‘ investigation.

Early in the morning of October 3, 2013, armed officers raided the homes of R.J. Johnson, WCFG advisor Deborah Jordahl, and several other targets across the state. ECF No. 5-15, O’Keefe Declaration, ¶ 46. Sheriff deputy vehicles used bright floodlights to illuminate the targets’ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. Among the materials seized were many of the Club’s records that were in the possession of Ms. Jordahl and Mr. Johnson. The warrants indicate that they were executed at the request of GAB investigator Dean Nickel.

On the same day, the Club’s accountants and directors, including O’Keefe, received subpoenas demanding that they turn over more or less all of the Club’s records from March 1, 2009 to the present. The subpoenas indicated that their recipients were subject to a Secrecy Order, and that their contents and existence could not be disclosed other than to counsel, under penalty of perjury. The subpoenas’ list of advocacy groups indicates that all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation. Id., Ex. 34 (O’Keefe Subpoena); see also Ex. 33 (Wisconsin Political Speech Raid, Wall Street Journal (Nov. 18, 2013), explaining that the subpoenas target some 29 conservative groups, including Wisconsin and national nonprofits, political vendors and party committees).
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Therefore any attempt at regulation of political speech is subject to the strictest scrutiny, meaning that it is the government‘s burden to show that its regulation is narrowly tailored to achieve the only legitimate goal of such regulation — preventing quid pro quo corruption or the appearance thereof as it pertains to elected officials or candidates. Applying strict scrutiny to this case, the plaintiffs have shown, to the degree necessary on the record before the Court, that their First Amendment rights are being infringed by the defendants‘ actions.

The defendants are pursuing criminal charges through a secret John Doe investigation against the plaintiffs for exercising issue advocacy speech rights that on their face are not subject to the regulations or statutes the defendants seek to enforce. This legitimate exercise of O‘Keefe‘s rights as an individual, and WCFG‘s rights as a 501(c)(4) corporation, to speak on the issues has been characterized by the defendants as political activity covered by Chapter 11 of the Wisconsin Statutes, rendering the plaintiffs a subcommittee of the Friends of Scott Walker (―FOSW.) and requiring that money spent on such speech be reported as an in-kind campaign contribution. This interpretation is simply wrong.

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ORDERED THAT the plaintiffs’ motion to preliminarily enjoin Defendants Chisholm, Landgraf, Robles, Nickel and Schmitz from continuing to conduct the John Doe investigation is GRANTED. The Defendants must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. Plaintiffs and others are hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants’ investigation.

Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court.