The Limitations on Judicial Free Speech

Abstract

he First Amendment provides that Congress shall make no law abridging the X freedom of speech. In a democratic society we consider this freedom to be essen tial for participation in decision making by all members of society. Freedom to engage in political speech allows robust debate of issues and a democratic consensus to emerge in the marketplace of ideas. However, as much as political speech is valued, we also expect that members of the judiciary will be objective and unbiased, and therefore, canons of judicial conduct routinely prohibit judges from engaging in par tisan political activity that would cast doubt on their impartiality. Simultaneously balancing the right of a judge to exercise free-speech rights and the integrity of the judicial process by ensuring the appearance of impartiality was a problem facing the Judicial Council of the Second Circuit in in re Charges of Judicial Misconduct, 404 F.2nd 688 (2nd Cir. 2005), involving misconduct complaints against a judge, unnamed in the order but identified in the National Law Journal (April 13, 2005) as Judge Guido Calabresi. The complaints were based on two incidents: an appearance by the judge at a panel of a self-styled progressive constitutional organi zation and statements the judge made there, and statements made by the judge's wife during a political demonstration protesting the policies of President George W. Bush and the Iraq war. Sections of the Code of Judicial Conduct specifically prohibit a judge from appearing before political organizations and engaging in partisan political activity. The substance of the complaints against the judge derived from the judge's attendance, and statements delivered, at the June 2004 annual convention of the American Constitutional Society (ACS) at Yale University, in New Haven, Connecticut. The ACS is an organization of "lawyers, law students, scholars, judges, policymakers and activists dedicated to transforming the legal and policy debates occurring in law school classrooms, federal and state courtrooms, legislative hearing rooms and the media ... to advance a progressive vision of the law on issues across the policy spectrum" (ACS Web site, http://www.acslaw.org/about/mission). During a panel discussion, "The Election: What's at Stake for American Law and Policy," the judge, who was not a member of the panel, spoke from the floor and argued for the need for a "structural reassertion of democracy." After a brief mention of his view of the incompetence of the current (Bush) administration, the judge criticized the Supreme Court for its decision in Bush v. Gore, 531 U.S. 98 (2000), which effec tively ended the disputed presidential election of 2000. The judge argued that this rul ing was an illegitimate act and then compared it to the selection of Mussolini as prime