Judicial Ethics or Free Speech Rights?

Judicial Ethics or Free Speech Rights?

By

James Scott Trimm

A certain local organization famous for slandering several of our Family Court judges, has made many attacks accusing Tarrant County judges of having violated ethics rules of judicial canons because they have been involved in political organizations, made political statements and donated money to political candidates.

While it is true that these things are prohibited by various state and federal judicial canons, codes of ethics etc. the US Supreme Court has ruled that these kinds of restrictions on a judge or judicial candidate’s first amendment rights are unconstitutional.

Back in 1996 a man named Gregory Wersal ran for associate justice of the Minnesota Supreme Court. Wersal distributed literature criticizing a number of Minnesota Supreme Court decisions.

Minnesota had a provision in its Code of Judicial Conduct which prohibited a candidate for judicial office from discussing his or her views on a political issue. An ethics complaint was filed against him, but it was dismissed.

Two years later, in 1998, Wersal ran again, but this time he preemptively filed suit in Federal District Court against the chairperson of the Minnesota Board on Judicial Standards. Wersal alleged that the Minnesota code limited his right to free speech. The Republican Party of Minnesota joined Wersal's lawsuit, argued that the code prevented the Party from learning a candidates views on the issues, and therefore from making an informed decision regarding his candidacy.

The case ultimately went to the US Supreme Court which, in a June 2002 decision ruled that this provision of Minnesota’s Code of Judicial Conduct violates the First Amendment saying that such a restrictive code "burden[ed] a category of speech that is at the core of First Amendment freedoms -- speech about the qualifications of candidates for public office."

This ruling made it clear that Judges and Judicial candidates have first amendment rights, just like everyone else.  They can make political statements, endorse candidates and take part in political organizations, just like anyone else.

So what about political donations?  Well in 2010 in Citizens United v. FEC the US Supreme Court found that money is speech.  Political donations are a form of speech, and therefore when one combines these two Supreme Court rulings, it become clear that a judge or judicial candidate has a right to make political donations, and that those political donations are can no more be limited in their amount, than a person can limited as to their amount of free speech.

If you believe in the US Constitution, if you believe in the freedom of speech for all Americans, you should never criticize a judge or judicial candidate as “unethical” simply because they have exercised their Constitutional rights to free speech.