Wisconsin needs to reframe how it talks about its leading right-wing lawsuit factory.
Photo: Seven staff members of the Wisconsin Institute for Law and Liberty stand in front of a blue background with the words “State Policy Network” printed on it. The person in the middle, an older man in a blue suit, holds an award plaque. The person on the far right of the group holds his hands downward, touching together the tips of his thumbs and index fingers.
The Wisconsin Institute for Law and Liberty tweeted a staff photo on Tuesday that put a dent in its slick facade. In the photo, researcher Noah Diekemper held both his hands down at his sides, the thumb and forefinger of each hand touching to form not-really-a-circle, the rest of his fingers hanging straight down. Twitter users immediately called out the right-wing law firm, because the “OK” hand gesture Diekemper appears to be making in the photo has been widely appropriated as a white power symbol on the far right.
A few hours later, Diekemper replied to WILL’s tweet, writing, “Geez my hands look awkward here. I’m not intentionally flashing that sign (nor would I).” Plumbing the intent of a young right-winger who may or may not have just happened to put his hands into what is a well-known controversial position seems futile. The right’s relationship with the gesture is cloaked in irony and prankish provocation. As the Southern Poverty Law Center’s David Neiwert put it in 2018, “The smirk gives away the proper answer: You’re being trolled.” I don’t know if Diekemper is smirking here or just giving a standard “getting my picture taken” smile, and I’m not gonna go down some rabbit hole of digging up other photos to see if he just does weird fiddly things when he poses.
People in the well-funded right-wing infrastructure are actually not stupid about messaging and image. At best, Diekemper should have known better. It’s surprising that no one caught it at WILL, which issued the photo as part of a press release. (In the photo, they are accepting an award for forcing Dane County to lift COVID-19 closure orders at private schools.) At worst, Diekemper and WILL are engaging in a well-established pattern of toying with people through a maybe-kinda-deniable hate symbol, one that has also proven controversial right here in Wisconsin before. Either way, the photo upset people and the WILL folks are probably OK with that—another chance to play victim to an over-sensitive left, or whatever.
Furthermore, the scrutiny is deserved. The reactions on Twitter signal a gradual but necessary shift in how Wisconsinites talk about WILL, a right-wing law firm formed in 2011 on the ridiculous premise that “conservatives and libertarians in Wisconsin were severely outnumbered in the legal arena.” Funded by the powerful Bradley Foundation, WILL first put its legal muscle to use defending Act 10 in the courts and trying to shield Scott Walker and his associates from corruption investigations. These days, WILL and its chronically aggrieved plaintiffs litigate to challenge protections for trans kids in schools, building regulations, COVID-19 protections, absentee voting, and racial diversity on Madison’s civilian police oversight board.
If there’s one event that calls for a change in perspective on WILL, it’s not a hand gesture but the firm’s ongoing challenge to a Madison Metropolitan School District policy meant to protect transgender kids. As Alice Herman wrote for Tone Madison in March 2020, this suit is the “first ostentatiously anti-LGBT push” from a firm that previously hadn’t placed much emphasis on controversial social issues. WILL is co-litigating the case with at least one lawyer for the Alliance Defending Freedom, which the Southern Poverty Law Center has designated as a hate group. Both organizations are open about their partnership, which is a matter of public record anyway as it involves a court case.
Yet the SPLC has not designated WILL itself a hate group, nor is it common for journalists or politicians or anyone else to refer to it that way. The stink of the Alliance Defending Freedom—which couches its homophobia, transphobia, and opposition to gender equality in terms of “religious freedom”—has not rubbed off on WILL in mainstream discourse, or even in far-left discourse.
The prevailing shorthand for WILL, even among politically engaged Wisconsinites on the left, is still that it’s a “conservative law firm.” On the surface, the description is accurate. But it essentially lets WILL frame the story, couching its work in terms of legalistic arguments and constitutional principles, and of course a professed dedication to “economic freedom” and “limited government.” (In practice, we know the right will abandon these principles whenever it pleases, and in fact WILL’s endless manufacture of bullshit lawsuits costs taxpayers money.) This framing places WILL in a supposedly respectable corner of the right, rhetorically walled off from groups that deal in rank bigotry and the explicit white-identity politics of Donald Trump. It treats WILL’s litigation as operating in a context of democratic process and the rule of law.
To accept this framing, you have to be in denial about Wisconsin’s current political realities. In a state where Republicans have torn up the very foundations of representative democracy and dominate a corrupt state Supreme Court, it becomes harder than ever to separate concepts of law and process from raw power politics. In a right-wing movement that has shown us again and again that its wonkiest principles are nothing but window dressing for white-minority rule, it is absurd to draw more than cosmetic distinctions between raving conspiracy freaks and the mannered attorneys lobbying on their behalf. It’s all just fascism.
WILL wants you to believe that it operates at some decorous remove from the broader currents of right-wing politics. But it’s politically indistinguishable when it plays into paranoia about election integrity, snipes at mask mandates, promotes the delusional panic about critical race theory, and attacks transgender people. It may be a little more tame and moderate in how it presents those efforts—i.e., stopping short of saying the 2020 election was stolen, or arguing that its problem with a mask mandate comes down to “unlawful delegation of legislative power to an executive official”—yet there is no mistaking the firm’s overall thrust.
By and large, press coverage of WILL does not reckon with this, and the norm has not shifted to calling WILL a hate group (which some folks, not I, would consider a stretch), or even least a hate group-affiliated group (which is indisputable if you acknowledge the SPLC as an authority on such matters). Especially before the suit over transgender students, WILL’s public reputation had more to do with pushing “school choice” issues (itself a euphemism for defunding public education), opposing business regulations, purging voter rolls. It had not crossed into explicit culture-warrior territory per se. WILL even collaborated with Madison newspaper Isthmus—which considers itself part of the rebellious tradition of alt-weeklies—on an open-records lawsuit against the Madison Police Department in 2018. At the time, WILL framed the suit as people working across a political divide to advance a shared interest in government transparency. Similarly, that same year WILL filed an amicus brief in The Progressive editor Bill Lueders’ open-records lawsuit against a state legislator.
Very little of the recent coverage of the Madison schools lawsuit bothers to point out the fact that it involves ADF. An Associated Press article published on Monday describes WILL’s activity in school policy in broad culture-war terms, without mentioning ADF. Press coverage often connects WILL to the Bradley Foundation, the Tea Party movement, and the Trump administration, but rarely associates WILL with the seamy realm of hate groups. A piece this June in the Wisconsin State Journal walked right up to it with this simply astonishing headline: “Conservative Wisconsin legal group aims for national reach, counter to anti-racism.”
There’s a way to say “counter to anti-racism” in one word instead of four, but this piece also didn’t talk about WILL’s partnership with a Southern Poverty Law Center-designated hate group, and didn’t challenge WILL president and general counsel Rick Esenberg’s attempts to distance WILL from the far right. A March 2020 Isthmus cover story about WILL did not mention its connection to the Alliance Defending Freedom, either. In a November 2020 story, the State Journal‘s reigning churl, Chris Rickert, even relied on Esenberg for wisdom on… the state of left-wing politics in Madison?
The issue here is less about any one publication or outlet and more about the broadly accepted paradigm. Because WILL can afford to pursue so many lawsuits against state agencies and local governments, most of them involving hot-button issues, it has a near-constant presence in Wisconsin’s political discussion. This should translate to deep skepticism of the power it wields, but instead it translates to an acceptance of WILL as something of an authority on legal issues and the broader direction of American politics. No matter how intensely some of us loathe it, WILL has built itself an air of respectable credibility. Sometimes you’d even swear WILL was a friend to the press—just look at those open-records lawsuits!
While we’re on the subject of WILL and the press, here is a fun fact. These self-professed champions of free speech complained about critical media coverage in an April 2020 bid to keep plaintiffs in the MMSD case anonymous. Among the pieces cited: Alice Herman’s aforementioned Tone Madison commentary, and a column Alan Talaga wrote for WILL’s former co-litigant, Isthmus. WILL is savvy enough to provide quotes and act like a media ally when it’s advantageous. Beyond that, WILL has about the same stance toward the press as anyone else on the right: playing the perpetual victim whenever it doesn’t succeed in swaying or controlling the narrative.
Let me repeat a fact, because in the 18 months or so that it has been true, people have not repeated it enough. The Wisconsin Institute for Law and Liberty is currently partnering with an SPLC-designated hate group. This is a fact. It is a choice WILL has made—a well-funded, politically connected law firm is more than capable of suing the Madison Metropolitan School District on its own, after all. If WILL has some technical, legalistic problem with MMSD’s policies, it should be satisfied with letting it all be about those legal arguments. After all, we are talking about lawyers, and lawyers are trained to understand the scope of a dispute, what it’s about and what it’s not about. By focusing its suit explicitly on a policy dealing with trans students, and allying with the virulently anti-trans Alliance Defending Freedom, WILL makes it about fueling a dangerous movement that demonizes trans people.
This fact is relevant when Wisconsinites—politicos, journalists, and everyday citizens—talk about the MMSD lawsuit. It calls into question WILL’s motivations and the credibility of its arguments. I’d also argue that it’s relevant when talking about any of WILL’s other suits or activities. The WILL-ADF partnership sets up a clear bridge between an outwardly sober bastion of conservative lawyering and a far-right organization that actively supports discrimination against the LGBTQ community. If WILL is comfortable associating with that, we need to stop treating it like a credible or legitimate actor in Wisconsin politics. Whatever happened with that staff photo, WILL’s behavior sends a message that might as well be a thinly coded hand signal.
There’s more where this came from.
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