First Amendment

Some Kentucky restrictions on judicial-campaign speech violate First Amendment, 6th Circuit says

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A federal appeals court has struck down some restrictions on what Kentucky judicial candidates can say while running for political office.

The Cincinnati-based 6th U.S. Circuit Court of Appeals ruled on Wednesday in a unanimous panel opinion (PDF) by Circuit Judge Jeffrey Sutton. How Appealing notes the decision.

The opinion struck down some restrictions in Kentucky’s Code of Judicial Conduct and upheld others. Judges in Kentucky run in nonpartisan elections.

The clauses struck down by the court “restrict what judicial candidates may say in their own campaigns and thus violate the First Amendment,” Sutton wrote. “The lesson is straightforward: A state may not hold judicial elections, then prevent candidates from explaining what makes them qualified for that office.”

The appeals court struck down as vague and overbroad a “campaigning clause,” which states that a judicial candidate shall not campaign as a member of a political organization. The Kentucky Supreme Court answered a certified question from the district court about the meaning of the canon, and said the clause prohibits candidates from portraying themselves, either directly or indirectly, as the official nominee of a political party.

“The problem with this canon,” Sutton wrote, “is that it’s unclear when candidates go from permissibly affiliating with a party to illegally implying that they are the nominee of a party.”

Could a candidate claim to have the endorsement of party leaders? Sutton asked. Or to say that Republicans support her campaign? “We are not sure whether this would violate Kentucky law,” Sutton wrote, “making us doubt whether judicial candidates would know either.”

The appeals court also struck down a “speeches clause” that bans judicial candidates from making speeches for or against a political organization or candidate. Judges in the state can identify themselves as members of a political party, and can “email, tweet, write, or say in an interview” that they are for a political party. But judges can’t say they are for a political party in a speech, creating “serious under-inclusivity problems,” Sutton said.

Other circuits have upheld speeches clauses that are more narrowly written. Those other clauses did not prevent judicial candidates from announcing their views on disputed legal and political subjects. “This one does,” Sutton wrote. “It is unconstitutional.”

The appeals court upheld on its face a provision barring judges from knowingly or recklessly making material false statements in a campaign. But the court said the ban was unconstitutional as applied to an appointed judge who asked voters to “re-elect” her and then received a letter from the Kentucky Judicial Conduct Commission. The letter warned that the statement may have violated the false statements ban.

The appeals court also struck down a ban on misleading statements. “This clause adds little to the permissible ban on false statements,” Sutton wrote, “and what it adds cannot be squared with the First Amendment.”

The appeals court upheld provisions that bar judicial candidates from contributing to a political organization or a candidate, from endorsing or opposing a candidate for public office, and from acting as a leader in a political organization.

See also:

ABA Journal: “Judges may not seek campaign cash, but they may express their gratitude, SCOTUS determines”

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