The Judicial Ethics Forum (JEF)

In a partial dissent to an order adopting a new code of judicial conduct based on the 2007 ABA Model Code, a justice of the Montana Supreme Court expressed reservations about the prohibition on a judge making public statements on pending cases in light of Republican Party of Minnesota v. White.  The dissenting justice accepted it as a good faith effort to provide a rule that conforms with White, but noted that the rule may need to be revisited to accommodate future court decisions.

The dissenting justice need not be concerned.  White and its progeny raise no doubts about the constitutionality of the restriction on commenting on pending cases or any code provision that does not involve campaign or political conduct.

In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the United States Supreme Court held that a state cannot, consistent with the First Amendment, prohibit judicial candidates from announcing their views on disputed legal and political issues.  The crucial point for the majority was that the Court has “never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”

In her concurring opinion, Justice O’Connor wrote that in choosing “to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system . . . the State has voluntarily taken on the risks to judicial bias . . . .”  Similarly, in his concurring opinion Justice Kennedy emphasized that “the State may not regulate the content of candidate speech merely because the speakers are candidates.”

Thus, the White decision focused exclusively on the needs of voters for information about the candidates in judicial election campaigns and the rights of candidates to communicate with those voters.  It did not announce any new-found, unassailable First Amendment rights for judges that would apply outside of the political realm.

In contrast to the announce clause, the restriction on commenting on pending cases applies to judges because they are judges, not because they are candidates, and applies regardless how judges are selected.  It does not prohibit speech based on content but simply requires a judge to make any comment on a pending case on the record in the case, in other words, when and where judges are supposed to be commenting on cases in fulfillment of their responsibilities.

No citizen has absolute First Amendment rights, and the public comment restriction reflects a balance most judges freely and willingly accept in deference to the justice system they serve and the public it protects.

By: Cindy Gray, Director, Center for Judicial Ethics, American Judicature Society