Discussing the First Amendment in the context of elections, the Supreme Court noted in 1982 case, Brown v. Hartlage that a "political candidate does not lose the protection of the First Amendment when he declares himself for public office." JUDICIAL CANDIDATES TAKE FREE SPEECH CASE
TO SUPREME COURT

The Supreme Court announced on December 3rd to decide whether candidates for judicial office may run full-scale political campaigns. The case, Republican Party of Minnesota v. Kelly (No. 01-521), arrives at the Supreme Court from an Eighth Circuit Court of Appeals’ decision which upheld a Minnesota canon of judicial ethics restricting the content of campaign speech by candidates for elective judicial office. More specifically, the Minnesota rule forbids candidates from stating their views on disputed political or legal issues.

The Republican Party of Minnesota, together with a former judicial candidate and others, petitioned the Supreme Court to review the appellate decision, charging that the restrictions at issue violate a candidate’s free speech rights. The petitioners maintain that the restrictions are overbroad and that the need for an impartial judiciary is addressed under an existing ethical requirement that forbids judicial candidates from pledging how they will decide a case.

Under pure First Amendment principles, the state restriction relates not to judicial conduct (the behavior of a judge in his judicial duties), but rather to candidate speech during an election campaign. Because the restriction inhibits the exercise of First Amendment rights and has a chilling effect on a candidate’s speech, the appellate court’s decision should be overturned and the political speech of candidates should be afforded the fullest application of First Amendment protections. Discussing the First Amendment in the context of elections, the Supreme Court noted in 1982 case, Brown v. Hartlage that a "political candidate does not lose the protection of the First Amendment when he declares himself for public office."

Although not involved in the current case, the Center for Individual Freedom submitted an amicus brief earlier this year in a judicial campaign speech case in the Eleventh Circuit Court of Appeals, Butler v. Alabama Judicial Inquiry Commission (see, www.cfif.org/pdfs/ButlerAmicusFinal.pdf ). The Center argued that restrictions on the content of campaign speech by candidates for state judicial office violate the First Amendment. Ironically, the Center was denied leave to file its brief and its own speech was curtailed in that case. It was not, however, silenced, having now been cited in a highly regarded paper, The Canons in the Courts: Recent First Amendments Rulings, judicial campaign speech written by Robert O’Neil. A noted First Amendment Scholar, Mr. O’Neil is a professor at the University of Virginia School of Law and the Founding Director of the Thomas Jefferson Center for the Protection of Free Expression.

December 7, 2001
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