Free Speech

May Judges "Participate in Marches, Demonstrations, Vigils, [and] Protests"?

The Indiana Commission on Judicial Qualifications opines.

|The Volokh Conspiracy |

From the Indiana Commission on Judicial Qualifications, Indiana Judicial Ethics Advisory Opinion # 1-20, just posted on Westlaw; recall that Indiana judges, like the judges in most states, run in elections:

In light of recent events, a number of judicial officers have sought advice about whether, consistent with their ethical obligations under the Code of Judicial Conduct, they may attend and participate in marches, demonstrations, vigils, protests, and other public events aimed at addressing various social issues….

When judicial officers seek to speak out publicly by participating in demonstrations, vigils, protests, or marches, two countervailing interests are at play: the First Amendment rights of the judge versus the state's interest in preserving the independence, integrity, and impartiality of the judiciary. As this Commission recognized in Public Admonition of Letsinger (Ind. 1997):

"Judges are not forbidden from making public comments; in fact, they should be encouraged to engage in temperate and judicious speech on any subject, so long as the speech does not compromise the high ethical standards by which judges, unlike other citizens, are held. Judges do not lose entirely their rights to free speech, but it is well established that the preservation of the integrity and of the public perception of the judiciary justifies certain infringements on a judge's right to speak out (emphasis added)."

Similarly, preservation of the independence and impartiality of the judiciary equally justifies certain infringements on a judge's right to speak out publicly….

  • Rule 1.2 requires judges to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. Comments 4 and 6 to this Rule encourage judges to participate in activities that, among other things, promote access to justice for all and to engage in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice.
  • Rule 1.3 prohibits judges from using the prestige of office to advance the personal interests of the judge or others, or to allow others to do so.
  • Rule 2.10(A) prohibits judges from making public statements that might reasonably be expected to affect the outcome or impair the fairness of a pending or impending matter in any court. Subsection (B) prohibits judges from making pledges, promises, or commitments that are inconsistent with the impartial performance of a judge's adjudicative duties in relation to cases, controversies, or issues likely to come before the court.
  • Rule 2.11(A)(5) specifically requires judges to disqualify if they have made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in a proceeding or controversy. Further, Rule 2.11(A) generally requires judges to disqualify any time the judge's impartiality might reasonably be questioned.
  • Rule 3.1 generally permits judges to engage in extrajudicial activities as long as participation: 1) will not interfere with the proper performance of judicial duties; 2) will not lead to frequent disqualification of the judge; 3) would not appear to a reasonable person to undermine the judge's independence, integrity, or impartiality; 4) would not appear to a reasonable person to be coercive; and 5) does not involve the use of court premises or resources, except for incidental use.
  • Rule 3.7(A)(4) prohibits judges from being the featured speaker or guest of honor at events sponsored by educational, religious, charitable, fraternal, or civic organizations if the event serves a fundraising purpose.
  • Rule 4.1(A) prohibits judges from engaging in various political activities (i.e., endorsing or opposing candidates for public office) when not in their election cycle….

Political Organizations

Advisory commissions have remarked that judges should not participate in social-issue marches sponsored by or affiliated with a political organization or in marches supporting or opposing a political party or candidate. See Arizona Advisory Opinion 2018-6; New York Advisory Opinion 2017-38. If the primary purpose of the event is aimed at influencing the actions of a political candidate or party—even when the activity is sponsored by a nonpartisan group—the judge should not participate. See, e.g., Massachusetts CJE Opinion 2016-10 (A judge should not participate in the Women's March on Washington scheduled the day after the presidential inauguration, as the public and media are "likely to focus on the timing of the event and the organizers' announced desire to 'send a message' to the new President on his first day of office").

Supporting or Protesting Matters in Active or Likely Litigation

Advisory committees also have warned judges about participating in marches or demonstrations about matters currently the subject of litigation (even if the matter is not in the judge's court) or that are likely to become a subject of litigation before the judge. See New York Advisory Opinion 2017-38 (A judge may not participate, even without speaking, in a local rally, march, or demonstration sponsored by a grassroots organization in opposition to the ""Trump Muslim Ban," noting that the event clearly "involves great public controversy, which is also the subject of litigation"); see also Arizona Advisory Opinion 2018-6.

Public Events Sponsored by Frequent Litigants or Advocacy Groups

When an event is sponsored or held by an organization that regularly appears before the judge or that holds an advocacy role within the courts, advisory committees have reached contrary results when interpreting Rules 3.1 and 1.2. Some committees have advised against attending, reasoning that attendance at these events may lead to frequent requests for disqualification as "the judge's presence and participation 'create[s] an appearance of particular sympathy toward one side in court' and necessarily cast[s] doubt on the judge's ability to be impartial." New York Advisory Opinion 2017-108 (A judge may not participate in a "Call to Service and Compassion Workshop" to honor child abuse victims and survivors hosted by a local child advocacy center); see also New York Advisory Opinions 2010-59 and 2004-91 (advising judges against appearing at candlelight vigils for those affected by domestic violence and on behalf of victims of crime); see also New Jersey Advisory Opinion 2008-1 (Judges may not participate in a candlelight vigil celebrating the one millionth child served by CASA programs across the country).

Other advisory commissions have taken a more permissive approach, advising judges that they may attend public events sponsored by an advocacy group, if the event serves a nonadvocacy purpose and the judge behaves at the event in a manner that does not cast doubt upon the judge's impartiality. See Washington Advisory Opinion 1996-16 (A judge may attend a "Day of Remembrance" ceremony to honor victims of domestic violence, but should take care that his or her mannerisms, actions, or speech do not cast doubt upon the judge's impartiality and should not act as an advocate or in any manner that indicates a predisposition as to how he or she might rule in a domestic violence case); Florida Advisory Opinion 1995-41 (A judge may attend a Mothers Against Drunk Driving candlelight vigil because the event merely recognizes the victims of impaired drivers and does not call for changes in the law); Florida Advisory Opinion 1992-34 (A judge may attend ceremonies held by law enforcement agencies to honor officers killed in the line of duty); see also Massachusetts CJE Opinion 2016-06 (A judge may serve as a guest speaker at a Community Family Day event held by a neighborhood civic association even though a large number of law enforcement agencies are sponsors, but commission set forth several cautions "designed to prevent [the judge] from unintentionally conveying to the public any erosion or blurring of the line of demarcation between law enforcement agencies and the judiciary").

Conduct Highlighting Judge

Advisory commissions also have warned judges to consider what role the judge is expected to play at an event. The Arizona Advisory Committee cautioned that, "Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating." Arizona Advisory Opinion 2018-6.

A recent advisory opinion issued from Connecticut highlights concerns when a judge is asked to take a featured role in a protest or demonstration. Connecticut Informal Opinion 2020-3. A judicial official from Connecticut sought advice on whether he could participate in "A Silent March of Black Female Attorneys of Connecticut" by meeting the marchers at the steps of the Connecticut Supreme Court and reading Article First, Sec. 2 of the Connecticut Constitution (which sets forth that all political power is inherent in the people) if he is not introduced at the event, does not identify himself by name or title or wear court- affiliated attire, does not permit his name or title to be used in any advertising, does not interpret the constitutional provision he is reading, and does not speak with the media. The invitation to the event indicated that protest signs in support of the cause are welcome, supporters would be distributing "We Can't Breathe" buttons and voter registrations cards at the event, and marchers are strongly urged to wear all black with black sunglasses to lend support to the message.

The Connecticut Advisory Committee opined that, given the specific facts, the judicial official should not participate in the event because: 1) the judicial official's participation would unnecessarily insert him into a public controversy in violation of Rule 1.2; 2) although the judicial official's name and title would not be used, his identity likely could be ascertained since he would be the only male supporter speaking on the steps of the Connecticut Supreme Court and, thus, could undermine the public's confidence in the independence and impartiality of the judiciary; and 3) the judicial official might be called upon to rule on claims of police brutality or abuse, and his participation in the event might appear to reasonable persons to undermine his independence and impartiality in violation of Rule 3.1.

Injudicious Remarks

Even when judges have spoken on appropriate matters of public concern, advisory commissions have cautioned judges to be circumspect in their remarks; and judicial conduct commissions have pursued discipline when judges have made injudicious remarks that undermine the independence, integrity, and impartiality of the judiciary. See Public Admonition of Letsinger (Ind. 1997) (judge admonished for intemperate remarks about investigation into missing probation funds); Mississippi Commission on Judicial Performance v. Wilkerson (Miss. 2004) (judge disciplined for anti- homosexual remarks he made to newspaper when commenting on states that had extended right to sue for homosexual partners); Disciplinary Counsel v. Ferrari (Ohio 1999) (judge disciplined for derogatory remarks made in newspaper about juvenile detention center staff and judicial officials); In re Conduct of Schenck (Oregon 1994) (judge disciplined for writing letters to newspaper criticizing district attorney); But cf. In re Inquiry Concerning Gridley (Fla. 1982) (judge's letters to editor expressing views against capital punishment protected by First Amendment).

Recommendations for Judges Who Wish to Participate in Public Events Aimed at Addressing Social Issues …

[T]he Indiana Commission on Judicial Qualifications is of the opinion that, pursuant to Rule 3.1 of the Code of Judicial Conduct, a judge may participate in many public events aimed at addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary. When deciding whether attendance and participation at a particular event may impair the judge's independence, integrity, or impartiality, the Commission notes that the determination often will be fact sensitive and encourages judges to consult with Commission staff to evaluate the wisdom of participating in certain events. Nonetheless, there are several guiding principles/factors that a judge should consider in his/her evaluation:

  • The title of the event—The more provocative or advocacy-oriented the title of the event is in promotional materials, the more likely the judge should abstain. See Rules 1.2, 3.1(C).
  • The purpose of the event—If the event primarily serves an advocacy or political purpose or is a fundraiser (and the judge is a featured speaker), the judge should not participate due to concerns regarding frequent subsequent disqualification requests of the judge and concerns about the appearance of partiality. See Rules 1.2, 3.1(B), (C), 3.7(A)(4), and 4.1(A). Also, if the event touches upon a pending matter currently before the judge, then the judge should not attend (i.e., the protest/march is aimed at raising awareness about police practices, and the judge currently has a civil lawsuit on his/her docket regarding the city's response to excessive force incidents). See Rule 2.10(A), (B).
  • The organizers and sponsors of the event—If the event primarily is sponsored or affiliated with a political party or candidate or seeks to influence the actions of a particular political official, the judge should not participate due to impartiality and independence concerns. See Rule 4.1(A). If the event is held by an advocacy group or a frequent litigant in the judge's court, the judge should carefully weigh the purpose of the event. If it is for a nonadvocacy purpose and the judge can participate in a manner that will not raise public concern about the judge's impartiality, then the judge may participate. See Rule 3.1. For instance, a judge could attend a march raising awareness about issues with the death penalty (as long as the judge maintains his/her ability to follow the law), but posing in a coffin for the media as part of an anti-death penalty protest1 would raise concerns about the judge's ability to remain impartial in future cases. See Rules 1.2, 2.10(A), 2.11(A)(5), and 3.1(C).
  • The details about the event—If the event is being held in a time, place, or manner where participants likely will violate the law (i.e., by not following imposed curfews or by becoming violent), then a judge should not participate. See Rule 1.2. For instance, if there has been a past history of violent eruptions at an event, a judge would be well advised to avoid attendance.
  • The potential role of the judge at the event—If a judge is requested to be afeatured speaker or guest of honor at an event, the judge should carefully review all invitational materials to determine whether his/her featured presence may cause frequent disqualification or might subject the judge to concerns that the judge is improperly using the prestige of judicial office to further the organization's goals. See Rules 1.3, 3.1(C). If the matter does not specifically involve matters concerning the law, the legal system, or the administration of justice, the judge should not allow his/her legal title to be referenced during the event and should not wear any clothing identifying him/her with the judiciary.

If a judge determines after reviewing invitational/promotional materials that attendance at the event will not impair the independence, integrity, or impartiality of the judiciary, the judge should still consider the following while at the event:

  • Change in circumstances—If circumstances change at the event that cause the judge to believe the judge's integrity or the impartiality of the judiciary might later be questioned (i.e., the majority of protesters are carrying signs supporting/opposing a political candidate), then the judge should be prepared to immediately leave the event.
  • Temperate and judicious conduct—The judge should be careful to act at all times at the event in a manner that is temperate and judicious.

Conclusion

A judge may participate in public events aimed at addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary. Judges are encouraged to consult with Commission staff to seek guidance on the wisdom of attending and participating in specific events.

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  1. Sure. No problem.
    Just recuse yourself from any cases related to the causes you march for.

    1. The Federalist Society does not approve that message.

      Nor does the American Constitution Society (although to lesser degree, in my experience).

      1. Are there a lot of Federalist Society marches, in your experience?

        1. Do you perceive a consequential difference in this context between (1) a march along a street and (2) a fundraising dinner featuring formal attire at a high-end hotel ballroom?

          1. Yes. One is a march and one is a dinner. One is public speech and one is semi-private speech. One is sometimes intemperate, the other is civil.

            Look, obviously if a judge is attending events, whether sponsored by the Federalist Society or others, where parties or non-parties with a vested interest in cases are attending and schmoozing with the judge, that is something of a problem. I tend to think judges should err on the side of not doing this sort of thing, and I think it’s healthy that people are seeking to publicize these sorts of events when judges attend them.

            But it is still “consequentially different” from, say, a judge attending a protest where protesters are attempting to vandalize a courthouse or something. Both may well be things judges should avoid, but they are not the same either.

            1. In the context of a judge’s attendance, I see no difference between

              (1) a large Federalist Society dinner — surf and turf, perhaps, with nice French wines, raising funds augmented by subsidies from law firms that appear before judges — at which a speaker regales the crowd regarding prospects of conducting some old-fashioned race-targeting voter suppression on behalf of Republicans

              and

              (2) a modest lunchtime march along a street during which participants — likely some wearing t-shirts or jeans — express opposition to bigoted voter suppression.

              Fortunately, I expect most bar associations to see it my way. Bigots control relatively few bar associations outside our southern stretches these days.

              1. You obviously have no fricking clue as to what happens at Federalist Society events.

                Go to law school and learn something about the group and what it does.

                1. I have attended dozens of Federalist Society events. None of the big black tie fundraisers but plenty of lunchtime presentations, with one speaker or as many as three or four.

                  1. Then you must know that most of them are not gatherings where people go to express racist thoughts.

                    There are reasonable critiques of the Federalists having too much influence on the judiciary. You don’t help things when you misrepresent what their events are like.

                    1. No racist thoughts?

                      Let’s check the von Spakovsky transcripts.

                      And the Hofeller papers.

                      Or Steve King’s Federalist Society presentations.

                      (In fairness, I find no evidence that Will Dismukes has ever been a presenter for the Federalist Society.)

                    2. “Then you must know that most of them are not gatherings where people go to express racist thoughts.”

                      I acknowledge that most Federalist Society events are not gatherings where people go to express racist thoughts. I did not intend to assert that all of them were (in part because I know that not all of them are).

                      Thank you for the opportunity to clarify that point.

              2. Or (3) hosting a “know your rights” seminar where the judge explains what rights voters have and how to address violations.

                Do you not see that 1 & 3 are very different from 2?

            2. I’m not aware that intemperateness was really the relevant criterion.

          2. Fundraising is explicitly forbidden per the article.

            Also, there can be an argument made that there does exist a substantive difference between a speech at a (non-fundraising) gala or event versus a march or protest.

            Speaking at the “dinner” would entail much more critical analysis and exploration of a topic. This is a result of a single speaker, the norms of the setting, and the extended time frame to speak. A protest or march, however, are historically grounds by which to express a very condensed version of one’s philosophy. A chant may encaplse a sentiment, but it can not contain exposition on the topic further than what can be put on a sign.

            If you asked about the difference between a gala and a local union hall meeting of regular Joes… I would be inclined to say the substantive character of both is very similar if not the same and thus, if one is OK so would the other.

            1. I believe judges have repeatedly been reported to have attended, spoken at, and even headlined Federalist Society fundraisers.

              I also have observed judges at innumerable Federalist Society events, which I perceive to be no different from marches (or parades) along a street in this context.

              1. How many cops get injured at Fed Soc events? Other than someone slipping on the ice (or perhaps a wet floor) has ANY cop EVER been injured?

                And that’s the other issue here — it’s “conduct unbecoming” merely to be *present* when cops are getting hurt.

                1. So if the judge shows up at a demonstration, and some asshole throws a rock at a cop, which the judge may not even have seen, the judge has done something wrong?

                  1. In general, a judge shouldn’t put him- or herself in the kind of events where rocks might be thrown. Obviously, a judge isn’t responsible if something happens that is unforseeable, but in general, judges are best to avoid these sorts of things.

                  2. Depends, has there been almost 2 months of rock throwing, arson, maiming of federal officers, and attempted terrorism going on prior to the demonstration the judge attended?

                    1. According to most reports, including the one on Twitter linked to here in another thread, the afternoon demonstrations have been overwhelmingly peaceful, and the criminals come out at night.

                  3. AFTER having been issued a (presumably) legal order to leave the area? Yes…

            2. “Fundraising is explicitly forbidden per the article.”

              Justice Kavanaugh is not impressed by that assertion.

        2. My experience with the Federalist Society is that they tried to get articulate people on both sides of issues.

          1. Sometimes there is an admirable range of views. Most common, though, is a single right-wing speaker at lunch, as I recall.

            1. Big deal. Going to lunch and listening to a right wing speaker is not, without more, much of a threat.

              1. Neither is a judge participating in an outdoor rally, a march, or a parade. That is the point.

                1. It’s different. In one, the judge is listening, in the other, the judge is protesting.

                  1. What is the Federalist Society other than one extended protest against all of this damned progress?

                    Also, you seem unfamiliar with Federalist Society events. Judges speak at plenty of them.

            2. The world according to the lunatic rantings of mentally unstable, internet shit-poster Artie.

            3. Reverend — it probably is easier to get right wing speakers.

              1. Especially when no one else is invited.

    2. Agreed on that. Since you cannot demonstrate impartiality on certain cases, you should be removed from certain cases. But feel free to do what you wish.

  2. It seems to me that it would be better to encourage judges to express their beliefs and interests in public forums and recuse themselves from cases involving those areas. I’d rather have actual impartiality rather than the appearance of it.

  3. “so long as the speech does not compromise the high ethical standards by which judges, unlike other citizens, are held”

    That’s an unfortunate way of expressing it. Non-judges have different standards because the nature of their callings are different.

  4. I appreciate the thoroughness of the opinion, but it seems to me the conclusion is “yes, unless the answer is no.” I would generally advise judges not to participate in such events. I don’t see how these standards could be applied in a viewpoint neutral way, which means you are always going to be at the mercy of the state judicial conduct authority. You also don’t know ahead of time what’s going to occur at the event. When I went out to protest the George Floyd killing, there were a whole bunch of people there with signs I disagreed with. And a group of people with a microphone conducted a lot of speeches related to Black Lives Matter the group as opposed to black lives matter the concept. I wouldn’t want a member of my judiciary out there next to me.

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