This morning Ed’s post accurately described the Wisconsin Supreme Court’s opinion ordering a stop to the “John Doe II” campaign speech investigation as a “[m]ajor smackdown” against the special prosecutor. Here are a few more noteworthy items from the decision.

The court’s major statutory interpretation holding is a bust for the special prosecutor (citations omitted):

In Two Unnamed Petitioners, we hold that the definition of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution8 because its language “‘is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.’” However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, “political purposes” is limited to express advocacy and its functional equivalent9 as those terms are defined in Buckley v. Valeo and Fed. Election Comm’n v. Wis. Right to Life, Inc.. With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants.

The majority on the legal theories advanced as the basis for the investigation:

The special prosecutor’s theories, if adopted as law, would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues. We find no support for the special prosecutor’s theories in Wis. Stat. Ch. 11. Chapter 11’s definition of “political purposes,” which underlies Wisconsin’s campaign finance law, is both overbroad and vague and thus unconstitutionally chills speech because people “‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’”

And:

Having reached our conclusion about the scope of conduct regulated by Chapter 11, we now turn to the special prosecutor’s theories of coordination and whether the alleged conduct is regulated under Wisconsin law. The special prosecutor has disregarded the vital principle that in our nation and our state political speech is a fundamental right and is afforded the highest level of protection. The special prosecutor’s theories, rather than “assur[ing] [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” instead would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished. In short, the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with “narrow specificity.”

Justice David T. Prosser concurred, with other justices concurring in part. One noteworthy passage from his opinion:

The violation of Fourth Amendment rights requires special attention when it has a chilling effect on First Amendment freedoms. . . . The search warrants and subpoenas in this case are so broad and so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison. After all, the special prosecutor has access to thousands and thousands of electronic communications about the 2010 election, Act 10, the 2011-13 state budget, other legislation, all the recall elections and the strategies and fundraising efforts employed in them, [redacted], litigation, and the then-upcoming 2012 general election. As the substance of this John Doe leaks out, as it already has, the search warrants and subpoenas have an eerie similarity to SLAPP suits in a civil context. SLAPP suits have the effect, whether intended or not, to cost defendants tremendous amounts of money, to extract privileged information from them, and to cause the defendants and others to withdraw from the political process out of fear of harassment.

Justice Annette Kingsland Ziegler concurred as well. Her opinion opens with a bang:

During pre-dawn darkness in October 2013, several armed law enforcement officers wearing flak jackets, carrying battering rams, and using bright floodlights executed secret John Doe search warrants in the homes of Wisconsin residents. . . . The warrants sought evidence that had been around for more than four years. The warrants were executed shortly before morning, days after a judge signed them, while it was still dark outside. Law enforcement certainly has, and should have, a great deal of discretion when it comes to how and when a warrant will be executed, but ultimately courts may review the reasonableness of that execution.
Because these searches were executed in pre-dawn darkness, they are essentially what courts and legal commentators refer to as a nighttime search. Because no Wisconsin law specifically addresses the legality of nighttime searches of private homes, under the existing facts of this case, these pre-dawn searches could raise questions as to whether they would pass constitutional muster. I recognize that because no challenge has been made to the execution of the warrants, the record is without explanation as to why the search warrants were executed as they were. I also recognize that the State might have had a legitimate reason for executing the search warrants pre-dawn in paramilitary fashion.

In an 85-page dissent, Justice Shirley S. Abrahamson accuses the majority of disregarding the statutory text.

Justice N. Patrick Crooks concurred in part and dissented in part, disagreeing with the majority’s application of the overbreadth and vagueness doctrines and accusing the majority of “rushing” to terminate the investigation.