by Max Brantley
A three-judge panel of the 8th U.S. Circuit Court of Appeals today expanded the free speech rights of judicial candidates in a 2-1 decision. It reversed a Minnesota district court and said it was unconstitutional for judicial rules to limit:
* A judicial candidate from endorsing or opposing other political candidates.
* Fund-raising solicitations by judicial candidates. The plaintiff wants to solicit money by phone and going door-to-door.
This opinion, which covers Arkansas, will have an impact on state judicial ethics rules if it is upheld on any appeal.
The majority said concerns about the potential ill appearance of political fund-raising on impartiality could be addressed by less intrusive means than prohibition, such as recusals.
A footnote in the ruling said it applied only to judicial candidates, as distinguished from non-candidate judges.
UPDATE: Circuit Judge-elect Wendell Griffen, whose jousted successfully in the past with free speech limitations on judges, comments:
There is rarely a legitimate reason to suppress speech in a democracy. The Supreme Court signaled as much long ago and emphasized the point for judges in 2004 when it decided Republican Party of Minnesota v. White. The fact that Minnesota, Arkansas, and other states maintain and continue trying to enforce blatantly unconstitutional prohibitions against freedom of speech by judges and judicial candidates shows that the judges and lawyers who write and enforce judicial codes of conduct have often been more committed to enforcing their notions of political and value orthodoxy than respectful for the democratic values they are sworn to uphold.