Restrictions on Judicial Campaign Speech

Both state and federal judges are subject to standards of conduct known as codes of judicial conduct. Codes of conduct set out ethical standards of behavior to which judges must conform. Prior to 2002, several states had codes of judicial conduct that prohibited a candidate for judicial election from announcing his or her views on controversial legal and political issues.

Judicial Candidates Cannot Be Barred from Stating Political Views
In 2002, the United States Supreme Court ruled that Minnesota’s so-called “announce clause” violated the First Amendment’s right to free speech. The court held that the provision improperly restricted core political speech. Judicial candidates, including sitting judges who were running for office, could not be barred from making the public aware of their views on controversial political issues. The case was sent back to the court of appeals to decide the constitutionality of other standards of judicial conduct that also had been challenged in the case.

Four States Amend Codes of Judicial Conduct Regarding Judicial Campaign Speech
Arizona, Minnesota, Nevada, and New Mexico amended their codes of judicial conduct in 2003 to reflect the Supreme Court’s ruling. The new provisions say that judicial candidates cannot make pledges or promises with respect to controversies or issues that might come before them as judges. A provision was also added requiring disqualification if the judge has made a prior public commitment on issues that come before the court.

District Court Enjoins Enforcement of Kentucky’s No Pledge or Promise Provision
A citizens’ group filed suit after judicial candidates in Kentucky refused to answer a questionnaire prepared by the group. The questionnaire related to the judicial candidates’ views on the dignity and worth of human life and the family. The judicial candidates cited the code of judicial conduct’s no pledge or promise provision in refusing to answer the questionnaire. In October 2004, a district court in Kentucky issued a preliminary injunction prohibiting the enforcement of Kentucky’s no pledge or promise provision. The court stated that Kentucky appeared to be using the no pledge or promise provision as a substitute for an announce clause, which the Supreme Court had barred as unconstitutional.

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