The Limitations on Judicial Free Speech*

The First Amendment provides that Congress shall make no law abridging the ireedom of speech. In a democratic society we consider this freedom to be essential 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 partisan 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 organization 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 effectively ended the disputed presidential election of 2000. The judge argued that this ruling was an illegitimate act and then compared it to the selection of Mussolini as prime minister of Italy by the king of Italy and Germany's President Hindenburg placing Adolf Hitler in power. While explicitly stating that he was not comparing President Bush to a dictator, the judge argued, "Like Mussolini, he [Bush] has exercised extraordinary power . . . it is important to put that person out, regardless of policies." The statement became the subject of press coverage and some criticism in the media.

Shortly thereafter, on June 24, 2004, the judge sent a letter to the chief judge of the second Circuit, John M. Walker, apologizing for his remarks. The judge stated that he was trying to make a complicated academic argument, but he understood that it could be construed in a partisan way, and he told the chief judge that the letter of apology could be shared with their colleagues. The chief judge then forwarded the letter to other members of the second Circuit Court of Appeals with his own memorandum of admonishment, which further stated he was pleased with the apology and in which he requested that the members of the court exercise reasonable care at all times to refrain from activities or statements that could be construed as partisan. The chief judge also forwarded the judge's letter and his memorandum to the press.

In the ensuing months, five complaints were filed against the judge under the Judicial Conduct and Disability Act (28 U.S.C. ??351 et seq.) for the appearance and the remarks, including one claim that the criticism of Bush v. Gore demonstrated judicial incompetence, and for the judge's wife's criticism of the president at a separate event, criticism that news accounts said she made on behalf of herself and her husband. Among the complainants were fifteen members of Congress who are part of a House Working Group on Judicial Accountability. These congressmen initially requested that Justice Stephen Breyer investigate the judge because of Breyer's position as chair of a special committee that studies how the judicial branch administered the Judicial Conduct Act. The congressmen were particularly upset by the comparisons to Mussolini and Hitler. Breyer explained that his committee had no authority to investigate individual judges and that the proper place to file a complaint under the act was with the clerk of the respective court of appeals (Josh Gerstein, New York Sun, July 1,2004).

In response, Chief Judge Walker recused himself, and then Acting Chief Judge Dennis Jacobs appointed a special committee consisting of himself, Circuit Judge Joseph M. McLaughlin, and District Judge Carol B. Amon (Eastern District of New York) to review the complaints and submit a report with recommendations. Upon receipt of the special committee's report, the Judicial Council of the second Circuit issued its order of April 8, 2005.

Before evaluating the judge's remarks, the council cleared the judge of any violation of the Code of Judicial Conduct that might be thought to result simply from his attendance at the ACS conference. In its order, the council observed that although the ACS was left leaning it was not a "political organization" within the meaning of Canon 7(A)2, which refers to groups organized primarily for political purposes, such as political parties, but not to legal-education groups, even if such groups are sympathetic to certain partisan political viewpoints. The council went on to note that a judge is encouraged to speak to advocacy groups to contribute to the improvement of law, the legal system, and the administration of justice.

The council then analyzed the remarks of the judge and the specific complaints made in reference to those remarks. First, the council agreed that the partisan comments violated Canon 7(A)2, but the commission then noted that the judge had already apologized for his statements and that, because of the ready apology, the private and public dissemination of Chief Judge Walker's admonition served as sufficient sanction for the misconduct. More-severe disciplinary action, said the council, had been reserved for partisan statements made in the courtroom or for much more inappropriate and offensive out-of-court language.

The council did, however, find that the statements comparing President Bush to Hitler demonstrated general political bias. Although the commission found the comparison remarks inflammatory and perhaps unfair, they found no precedent or authority classifying such remarks as misconduct. Therefore, the comparison remarks did not rise to the level of a violation of the Code of Judicial Conduct, and the judge's apology precluded the need for any additional discipline. The complaint of general political bias was dismissed because the Code allows judges to have political preferences and to vote accordingly. While the bias may or may not preclude the judge from sitting in a future case involving the president, such a claim at this point would, the commission said, be premature because it has not occurred. As to the criticisms of the Bush v. Gore decision, the council noted that "incompetence" means misconduct or disability, not criticism of a Supreme Court decision, and the close 5-4 vote of Bush v. Gore "and the numerous analyses of that decision" showed there could be reasonable disagreement over the soundness of the majority opinion in that case.

Finally, the council dismissed the complaint over the political activities of the wife at the protest demonstration. The complaint was based not just on the activities of the judge's wife, but also on press reports that wife stated she was protesting on the judge's behalf. The council found that there was no evidence that the judge authorized his wife to make such statements, and his wife said that she had not claimed to be making them on his behalf.

The judge's sanction was, therefore, limited to his apology and the chief judge's public and private letter of admonishment for the explicit criticism of President Bush, which the council said constituted both sufficient sanction and corrective action. Thus, while there are limits on the free-speech rights of federal judges, in its order terminating the Calabresi complaints, the second circuit judicial council found that the limits are on express, explicit political speech before clearly labeled political organizations that exist solely to promote political, as opposed to educational, or law-related, agendas. This is a very narrow limitation. Short of outright campaigning for a preferred candidate or attendance at a political convention, the council sanction means that the need to avoid "conduct prejudicial to the effective administration of the business of the courts" does not appear to significantly restrict the free-speech rights of the judiciary.

One final curious aspect of the order was the omission of the judge's name. Judicial Council Rule 17(a) for the second Circuit states, "If the complaint is finally disposed of by any other action taken . . . except dismissal . . . the name of the judge or magistrate judge will be disclosed." Since, under Rule 14(d) "corrective action" was taken, this seems to mean that Judge Calabresi's name should also have been included in the order, although given the extensive press coverage, the omission appears to be harmless error.