Weighing Judicial Conduct Against Free Speech: Mississippi Commission on Judicial Performance v. Wilkerson

Abstract

In late March 2002, a Mississippi County justice named Connie Glen Wilkerson wrote a letter to a local weekly newspaper, the George County Times, decrying recent legislation in California that extended various legal protections to gay and les bian partners. In the letter, the judge wrote that based upon his Christian beliefs and biblical principles not only was such legislation wrong, but also that homosexuals belonged in mental institutions. The letter provided the judge's home address and telephone number, but it was signed "Bro. Connie G. Wilkerson" and provided no reference to his capacity as a judge. A little more than a week later, a radio network reporter interviewed the judge and asked him to discuss the letter. During the interview, the judge referred to homo sexuality as an "illness" and stated that he signed the letter as a "red blooded American, you know, Christian man. The Christian people need to take a stand as well as anybody else, you know." In response to the letter and interview, Lambda Legal, an organization that works to establish and increase the rights of gays and lesbians, filed a complaint with the Mississippi Commission on Judicial Performance alleging violations of the Canons of Judicial Conduct. After a hearing, the commission charged the judge with "willful misconduct in office prejudicial to the administration of justice which brings the office into disrepute," the breach of various canons because of the letter, and the violations of these canons because of the interview. The defense of Judge Wilkerson, and the sole issue before the Mississippi Supreme Court, was whether the First Amendment protects the judge's letter and statements. In a divided opinion, the court upheld the First Amendment right of Judge Wilkerson to write such a letter and to make such statements. The court then dismissed the complaint with prejudice. 876 So.2d 1006 (Miss., 2004). The court noted that the Canons of Judicial Conduct are a necessary and criti cal part of the judicial system, but that these canons cannot infringe upon First Amendment rights such as political speech and religious speech. The court acknowl edged the right of government to restrict speech, but there must be a very good rea son to do so, and depending upon the type of speech, the burden increases on the gov ernment to justify its restrictions. The court then proceeded to analyze constitutionally permissible restrictions on speech and the standards necessary to allow governmental restrictions, showing, for example, that commercial speech restrictions require government to show a "substan tial interest," which is less difficult to meet than the "compelling state interest" required to justify restrictions on political/public-issue speech and on religious speech. In the majority's own words, "It is hardly debatable that the extension of certain