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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 See’s 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 Moore’s 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 Alabama’s 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 Amendment’s 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 See’s 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 Court’s 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:


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