FUNDED BY A GRANT FROM THE TEXAS COURT OF CRIMINAL APPEALS

TEXAS MUNICIPAL COURTS EDUCATION CENTER

2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756

TELEPHONE 512.320.8274 1.800.252.3718

FAX 512.435.6118

TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION

Free Speech and the Judiciary

Presented by

Jacqueline Habersham, Executive Director, Commission on Judicial Conduct

Justice Benjamin Cardozo wrote of free speech, “Of that freedom, one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.” In these turbulent times, though, where is the intersection of free speech and the right of the people to a neutral and detached magistrate? This course, taught by the Commission on Judicial Conduct, will examine the status of free speech as it pertains to the judiciary in 2020 and the future. By the end of this session, judges will be able to:

1. Describe the ethical obligations of a judge according to the Canons of Judicial Conduct; 2. Explain the parameters of the freedom of speech as outlined by case law; and 3. List practical considerations for judges and court clerks during events like national elections or

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The State Commission on Judicial Conduct

Presents:

LIMITS ON FREE SPEECH

IN THE JUDICIARY

TMCEC Regional Judges

2020-2021

Presented by:

Jacqueline Habersham

Executive Director

State Commission on Judicial Conduct

Objectives

After today’s presentation, judges should be able

to...

❑ Discuss Federal and State Court rulings that protect and

limit certain First Amendment Rights;

❑ Describe the Canons that apply to a judge’s ability to speak

on matters of public and private interest; and

❑ Review advisory opinions from other states regarding

“hot-button issues” i.e. political and social justice issues.

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Mission Statement

◼ To protect the public

◼ To promote public confidence in the integrity,

independence and impartiality of the judiciary

◼ To encourage judges to maintain high standards

of conduct, on and off the bench

Resources 1st Amendment Discussion

◼ Republican Party of Minnesota v. White, 536

U.S. 765, 122 S. Ct. 2528 (U.S. 2002)

◼ Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990)

◼ Jenevein v. Willing, 493 F. 3d 551 (5th Cir.

2007)

◼ In Re Hecht, 213 S.W.3d 547 (Tex.Spec.Ct.App.

2006)

Freedom of Speech

In relevant part, the First Amendment to the United

States Constitution reads: “Congress shall make no law

. . . abridging the freedom of speech. . . .” It is now

well established that this protection extends to actions

by the individual states through the Due Process clause

of the Fourteenth Amendment.

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State Employees

Generally, a public employee cannot be penalized by the state for

exercising his or her freedom of speech, provided the speech in

question may be “fairly characterized as constituting speech on a

matter of public concern,” and the employee’s interest in

speaking outweighs “the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees.” Connick v. Myers, 461 U.S. 138, 147

(1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

Regulation of Judicial Speech

❑ Because of the unique position judges hold in society, the state may restrict

an elected judge’s speech in ways that it may not restrict the speech of

other public employees or elected officials. Scott v. Flowers, 910 F.2d 201,

212 (5th Cir. 1990).

❑ In Texas, it is well-established that a judge has the First Amendment right

to speak out on matters of legitimate public concern and/or matters

affecting the administration of justice. (Scott v. Flowers, 910 F.2d 201 (5th

Cir. 1990); Jenevein v. Willing, 493 F. 3d 551 (5th Cir. 2007)). The

Commission’s interest in promoting and maintaining the integrity of the

judiciary, however, is a compelling state interest “of the highest order.”

Republican Party of Minnesota v. White, 536 U.S. 765, 793

(2002)(Kennedy, J., concurring); Jenevein, 493 F.3d at 559.

Regulation of Judicial Speech

All “judicial speech,” when subjected to review by the

Commission on Judicial Conduct (as an arm of the State) is

presumed to be protected by the First Amendment. That

presumption is not, however, absolute. It is rebuttable. In order

to rebuke a judge for certain speech, it is incumbent upon the

Commission to show a “narrowly tailored,” “compelling

interest” to do so, and which is the “least restrictive means”

available

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Case Authority

Recent leading cases on judicial speech that are of particular

interest to this Commission are:

❑ Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (hereinafter

White),

❑ Jenevein v. Willing, 493 F. 3d 551 (5th Cir. 2007) (hereinafter Jenevein),

❑ Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990) (hereinafter Scott).

The challenge of the Commission is to assert its regulatory

authority while doing so within the parameters set out in these

opinions

Scott v. Flowers910 F.2d 201 (5th Cir. 1990)

◼ Scott is a Fifth Circuit case that arose out of a sanction by this

Commission.

◼ Facts: Fort Bend County Justice of the Peace James Scott became concerned

about certain entrenched policies of the Fort Bend County District Attorney’s

Office and the County Court at Law regarding appeals of traffic cases from local

JP and municipal courts in which, overwhelmingly, the cases were dismissed after

guilty verdicts in the lower courts. After failing to get satisfaction from local

officials regarding changing the practice, Judge Scott wrote an “open letter” to the

citizens of Fort Bend County in which he castigated local officials for said

practice. He was subsequently publicly sanctioned by this Commission for that,

and other, actions.

◼ Successfully challenged the part of the sanction that dealt with the “open

letter”

Scott v. Flowers

Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811

(1968), a two-step inquiry was used in evaluating claims of first amendment

violations:

1.the Court must determine, in light of the content, form, and context of the speech in

question whether it addresses a matter of legitimate public concern; if not, the inquiry

ends; and

2.if the speech does address public concern, a court must balance the employee’s first

amendment rights against the governmental employer’s countervailing interest in

promoting the efficient performance of its functions (i.e, a “compelling interest)

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Scott v. FlowersResult

Interestingly, the Public Reprimand originally issued against Judge Scott was

allowed to stand by the Fifth Circuit, but with a revision. In its holding, the

Court wrote that “the Commission could not constitutionally reprimand Scott

for making public statements critical of the court-at-law and the district

attorney's office, and we remand so that the district court may direct the

Commission to expunge the third paragraph of the reprimand, dealing with

those statements, from Scott's record and for entry of an appropriate

declaratory judgment.” Thereafter, the Commission simply struck through the

third paragraph, leaving intact the remainder of the sanction. To this day,

Judge Scott has a Public Reprimand arising out of the incident on his record.

Republican Party of Minnesota v. White

◼ In White, the United States Supreme Court had occasion to

consider whether Minnesota’s so-called “Announce Clause,”

which prohibited judges and judicial candidates from

announcing their views on disputed legal or political issues,

violated a judicial candidate’s First Amendment rights.

◼ 5-4 Decision

◼ Minnesota “Announce Clause” held unconstitutional

Minnesota v. White

The Court carefully carved out a three-part (“Strict Scrutiny”) test for

determining when a judicial candidate’s First Amendment rights, in the

context of a political campaign or other “speech” on matters of public

concern, come into play:

1. First, the speech must be shown to be “core political speech.”

2. Two, once that is established, the state must then articulate a

“compelling interest” in preserving the reality and appearance of the

impartiality and independence of the state’s judiciary for restricting

the speech.

3. Third, and finally, the state must show that the restriction is narrowly

tailored to serve that interest

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Minnesota v. White

◼ August 22, 2002, the Texas Code of Judicial Conduct

amendments

◼ Canon 5(1)

◼ Canon 3B(10)

Part I

What Are the

Rules?

Texas “Announce Clause”[Old Canon 5(1)]

A judge or judicial candidate shall not

make statements that indicate an opinion

on any issue that may be subject to

judicial interpretation by the office which

is being sought or held, …

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Texas “Announce Clause”

…except that discussion of an individual's

judicial philosophy is appropriate if conducted

in a manner which does not suggest to a

reasonable person a probable decision on any

particular case.

2002 Amendments Texas Code of Judicial Conduct

New Canon 5(1):

“A judge or judicial candidate shall not:

(i) make pledges or promises of conduct in officeregarding pending or impending cases, specificclasses of cases, specific classes of litigants, orspecific propositions of law that would suggest to areasonable person that the judge is predisposed to aprobable decision in cases within the scope of thepledge…

2002 AmendmentsTexas Code of Judicial Conduct

New Canon 5(1) continued…

(ii) knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or

(iii) make a statement that would violate Canon 3B(10)

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2002 AmendmentsTexas Code of Judicial Conduct

Canon 3B(10):

“A Judge shall abstain from public comment about a

pending or impending proceeding which may come

before a judge’s court in a manner which suggests to a

reasonable person the judge’s probable decision on any

particular case.

Canon 3B(10)

This prohibition applies to any candidate for

judicial office, with respect to judicial proceedings

pending or impending in the court on which the

candidate would serve if elected …”

Commentary - A statement made during a campaign for

judicial office, whether or not prohibited by this Canon, may

cause a judge’s impartiality to be reasonably questioned in

the context of a particular case and may result in recusal.

Where Are We Going?

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Where Are We Going?

What’s happened since 2002?

◼Texas

◼National Trends

Texas

◼In Re Hecht (2006)

◼Jenevein v. Willing (2007)

Texas…In re Hecht (October 2006)

◼ Candidacy for judicial office not a private interest

◼ Endorsements:

◼ Authorization must be express

◼ Must urge public to “vote for” or “elect” candidate

◼ Concurring Opinion found Canon 5(2) unconstitutional on its face (under-inclusive) and Canon 2B unconstitutional as applied to Justice Hecht

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Texas…

Jenevein v. Willing (2007)

◼ Judge Robert Jenevein was sanctioned by the Commission after he held a

press conference in which, among other things, he castigated a Dallas

lawyer for filing pleadings in a civil lawsuit that Judge Jenevein felt

defamed the judge’s wife. The press conference was held in the judge’s

court, and he was wearing his judicial robe at the time. Then, more than a

week later, Judge Jenevein sent an email from his county computer to a list

of supporters, further discussing the pending litigation of the lawyer he

had earlier attacked. From these acts, the Commission sanctioned

(Censure) the judge based on two charges that had been included in a

Formal Proceeding.

Texas…

◼ Jenevein v. Willing (July 2007)

◼ Federal challenge to Public Censure

◼ 5th Circuit decision expanded 1st amendment analysis from Minnesota v. White to non-campaign related speech

◼ Upheld Public Censure for use of judicial robe, courtroom, county computer and email system (he

attempted to “bootstrap” his message by using the “trappings” of his judicial office)

◼ References to content of speech expunged from Censure

Other Considerations

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Speech and the Canons

❑ Must be in a manner that casts no reasonable doubts on the judge's capacity to act impartially (Canon 4A(2));

❑ Must promote public confidence in the integrity and impartiality of the judiciary (Canon 2A));

❑ Must not demean the judicial office (Canon 4A(2));

Speech and the Canons

❑ Must not interfere with the proper performance of judicial duties (Canon 4A(3));

❑ Must not disclose any non-public information about the case that was acquired by the judge in his or her judicial capacity (Canon 3B(11)); and

❑ Must not suggest to a reasonable person the judge probable decision on any particular case. (Canon 3B(10)

Other Factors (Canons)

❑ Canon 2

❑ Canon 2B

❑ Canon 3B(5) & 3B(6)

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Social Justice

Indiana Advisory Opinion 2020-1

Indiana JQC (2020) issued an advisory opinion -Whether, in light of recent events and to remain

consistent with the ethical obligations under the Code

of Judicial Conduct, a judge can attend and participate

in marches, demonstrations, vigils, protests, and other

public events aimed at addressing various social issues.

Indiana Advisory Opinion 2020-1

A judge may participate in public events aimed at

addressing social issues if the judge can do so in a

manner that does not impinge upon the

independence, integrity, and impartiality of the

judiciary. Judges are encouraged to consult with

Commission staff to seek guidance on the wisdom

of attending and participating in specific events.

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CaliforniaAdvisory Opinion 2020-014

California Supreme Court Advisory Committee,

while not explicitly telling judges to avoid

demonstrations or marches, the Commission

warned judges that they should weigh a public

showing of support for racial equality against

their obligation to promote public confidence in

an impartial judicial system.

California

California Committee stressed that a Judge…

❑ Should not engage in a “symbolic act,” carry a sign, wear

clothing or buttons that might identify the judge as siding with

a particular viewpoint;

❑ Should be mindful “of any risks that the demonstration or

rally might evolve in ways that could violate the judge’s

ethical duties” and be prepared to leave;

California

❑ Should leave if other participants carry signs or chant slogans

“that are inflammatory, derogatory, and inconsistent with the

judge’s own ethical duties;” and

❑ Should not make a public statement on even permissible

topics that would undermine the public’s confidence in the

judiciary, lend the prestige of their office to further the

personal interests of the individuals or entities organizing the

event, commit the judge to a position on a topic likely to come

before the courts, or comment about a pending or impending

proceeding.

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New York

The New York Advisory Committee on Judicial Ethics stated that

judges may not participate in a “walk for justice” organized by a

bar association in which participants would “walk silently on the

sidewalk past governmental buildings and ‘take a knee’ in front

of a depiction of the U.S. Constitution, ‘as a way to both

remember George Floyd” and to recognize judges and court

personnel at every level ‘who strive every day to accomplish Dr.

King’s goal of justice for everyone.’” New York Advisory

Opinions 2020-92/93.

New York

The committee noted its strong belief that “racial

justice should not be controversial” but

concluded:

❑ Participation in a high-profile silent “walk for justice,”

organized around an intensely emotional appeal concerning a

man whose death in police custody has roiled the nation in

ongoing protests, could “create an appearance of particular

sympathy toward one side in court” and necessarily cast doubt

on the judge’s ability to be impartial.

Other Advisory Opinions

❑Colorado Advisory Opinion 2020-2

❑Maryland Advisory Opinion 2020-13

❑Connecticut Informal Opinion 2020-3

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Avoiding Impropriety

Preserving Impartiality while Speaking Up

❑ Commenting on pending/impending cases

❑ Expressions of bias or prejudice

❑ Statements criticizing or disparaging

colleagues/attorneys, etc.

❑ Responding to criticism

Actual Cases

In disciplining a judge for criticizing the district attorney, the Supreme Court of Oregon concluded that imposition of a sanction did not violate the judge's freedom of speech. In re Schenck, 870 P.2d 185 (1994). The judge had criticized the prosecutor in a letter to the editor and guest editorial, both published in a local paper. The court applied an analysis from public employee free-speech cases that weighs:

❑ the First Amendment rights of a public employee against

❑ the interest of the state as an employer in regulating the speech of its employees to promote the efficiency of the public services the state performs through its employees.

In re Schenck870 P.2d 185 (Colorado, 1994)

The court found that the code restriction promoted aninterest in protecting both the fact and the appearance ofthe impartiality and integrity of the judiciary and that thatinterest is "profound.“ The court held that the prohibitionon making comments on pending cases is a limitedrestriction on the judge's right to speak that directlyrelated to and was narrowly drawn so as to further thegovernmental interest.

See discussion of Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990), infra

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Bias or Prejudice

A judge was publicly censured for, in an interview with a newspaper reporter, expressing his displeasure with a state statute regulating abortions for minors and stating that one of the circumstances in which he might permit a minor to have an abortion pursuant to the act would be when a white girl was raped by a black man. In the Matter of Bourisseau, 480 N.W.2d 270 (Michigan 1992).

Bias or Prejudice

A judge was removed as chief judge for remarks to a reporterconcerning public schools, the provocative dress of female students,the prevalence of blacks on welfare and in the criminal justice system,and the propriety of making racial slurs and telling racial jokes inprivate. The Florida Supreme Court held that because a significantportion of the community had read the judge's statements asendorsing discriminatory stereotypes that were inimical to the law ofFlorida and the interests of the judiciary, his actions had significantlyeroded his ability to work effectively with all segments of thecommunity. In re: Petition for Removal of a Chief Judge, 592 So. 2d 671(1992). The judge was subsequently reprimanded for the sameremarks. Re: Santora, 602 So. 2d 1269 (1992).

Disparaging other Judges

Inquiry Concerning Velasquez, Decision and Order Imposing PublicCensure (California Commission on Judicial Performance April 16,1997). The commission disciplined a judge for making publicstatements disparaging fellow judges during a dispute about thejudge's "get tough" sentencing policy in DUI cases. The judgeconsented to the censure.

The judge's statements were made both on and off the bench, in opencourt, in documents filed in court, in newspapers, and on televisionbroadcasts.

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Inquiry Concerning Velasquez

For example, in an interview with a television station, the judge stated:

And even though I say that Judge Sillman is racist, and [Judge]Wendy Duffy is racist, and [Judge] Richard Curtis is racist and [Judge] Russell Scott is racist, I have told them that it will be my intent to make friends of them. . . . They're wanting to use statistics against me; that I am not carrying my own weight, that is caseload. But the reason for that is the defense attorneys are disqualifying me because I will give convicted

The Commission found that the judge's public accusations of racial bias by fellow judges were especially troubling as they called into question the integrity and impartiality of those judges and the judicial system

Statement of Admonition of Letsinger (June 13, 1997)

In Indiana, the Commission publicly admonished Judge Letsinger,pursuant to his consent, for commenting to the press about allegationsthat over $8,000 was missing from the court probation departmentfunds. Among other comments, the judge stated that one of hiscolleagues was being less than candid and forthcoming relating to theinvestigation and had prior knowledge about problems with missingfunds. He said about the other judge, "he knew about this. The can ofworms is starting to smell, and it's smelling higher and higher," andthat the other judges on the court were protecting the judge. Thecommission found that the judge's comments were intemperate andinjudicious and not fact-based information from which the publiccould benefit.

Inquiry Concerning Graham, 620 So. 2d 1273 (1993)

In Florida, in Inquiry Concerning Graham, 620 So. 2d 1273(1993), the Florida Supreme Court disciplined a judge for,among other misconduct, repeatedly using his position tomake allegations of official misconduct and impropercriticisms against fellow judges, elected officials and theirassistants, and others, without reasonable factual basis orregard for their personal and professional reputations.

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Food for Thought

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