ALABAMA
SUPREME COURT RULES THAT CAMPAIGN SPEECH RESTRICTIONS ON JUDICIAL
CANDIDATES VIOLATE THE FIRST AMENDMENT
The Alabama
Supreme Court ruled in favor of Supreme Court Justice Harold See
on May 15, 2001, stating that Canon 7B.(2) of the Alabama Canons
of Judicial Ethics is facially unconstitutional and that Canon 2A
is unconstitutional as applied in Justice Sees case against
the Alabama Judicial Inquiry Commission (JIC). The case comes before
the Alabama Supreme Court following certification to it of three
questions of state law from the United States Court of Appeals for
the Eleventh Circuit. The Court of Appeals certified three questions
to the Supreme Court of Alabama to assist it in determining whether
to abstain from deciding federal constitutional issues, in deference
to state proceedings.
In addition
to certifying three questions, the federal Court of Appeals invited
the Alabama Supreme Court to address the question whether the Canons
violated the First Amendment guarantee of free speech, and if so,
to remedy any federal constitutional defects. The Eleventh Circuit
Court of Appeals encouraged the Alabama Supreme Court not to restrict
its analysis, stating that "[t]he more information that the
state supreme court can provide to us,
the better we will be able to resolve the abstention problem and
possibly the merits."
While campaigning
for the Republican nomination for the position of Chief Justice
of the Alabama Supreme Court, sitting Alabama Supreme Court Justice
Harold F. See, Jr. ran a 30-second advertisement discussing his
record on crime. In a single sentence comparing his record to that
of his opponent, Judge Roy Moore, the advertisement stated that
"Moore let convicted drug dealers off with reduced sentences
or probation at least 40 times" and displayed the case
numbers to which that statement referred. Simultaneously with the
first broadcast of this advertisement, Justice See provided the
press with extensive documentation on the cases that formed the
basis of this single sentence. Following the broadcast of this advertisement,
there was ample debate between the candidates regarding Judge Moores
record and the claim made in the advertisement.
Following a
review of a complaint filed against Justice See, the JIC charged
Justice See with violating Alabamas Canons of Judicial Ethics.
Canon 7B.(2) restricts candidates behavior in judicial elections
by prohibiting publication of false information and information
that is true but "would be deceiving or misleading to a reasonable
person." Canon 2A regulates the conduct of a judge by providing
that "[a] judge should respect and comply with the law and
should conduct himself at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary."
Although the
Alabama Supreme Court found that the State of Alabama has a compelling
interest in protecting the integrity of the judiciary, the Court
concluded that "Canon 7B.(2) is unconstitutionally overbroad
on its face because it is not narrowly tailored to serve the compelling
state interest." In recognizing that "the political speech
of judicial candidates in this state must be guaranteed the fullest
application of the First Amendments protection," the
Court, applying strict scrutiny, concluded that Canon 7B(2) is facially
unconstitutional because it violates the overbreadth doctrine. To
remedy this defect, the Court ruled to limit the application of
Canon 7B.(2) to instances where the information is demonstrably
false and disseminated with actual malice. The Court further ruled
that Canon 2A. did not apply to Justice Sees conduct as a
candidate. In an opinion of almost equal length to the holding,
Justice Johnstone concurs in part and dissents in part, most notably
dissenting to the Courts decision to maintain Canon 7B.(2)
with the stated limitations.
It is uncertain
whether the JIC will continue the case against Justice See in light
of the limitations placed on the application of Canon 7B.(2).
To
read the Center's amicus curiae in this case, click on:
ButlerAmicusFinal.pdf
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