Misleading and chilling

The line between prohibited and protected speech for judicial candidates was changed recently in at least two states.

The Ohio Supreme Court held unconstitutional a provision in the state’s code of judicial conduct that prohibited candidates from making true statements “that would be deceiving or misleading to a reasonable person.” The Court held the clause “chills the exercise of legitimate First Amendment rights,” noting it “does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners.” However, it upheld the portion of the rule prohibiting a candidate from conveying information “either knowing the information to be false or with a reckless disregard of whether or not it was false.” The Court noted “the public interest is served not only by ensuring that Ohio’s judges are trustworthy, but also by promoting a collective public awareness of that trustworthiness” and “there is every reason to expect and insist that candidates will be truthful in their campaign speech when they are seeking a judicial position.”

A federal district court held unconstitutional a clause in Kentucky’s code prohibiting misleading statements, concluding “the remedy for misleading speech is more speech, not less,” and noting “whether a statement is misleading is in the eyes of the beholder.” Winter v. Wolnitzek, Memorandum opinion and order (U.S. District Court for the Eastern District of Kentucky October 29, 2014). The risk of chill from vague restrictions, the federal court stated, is likely greater for judicial candidates who, because they “are trying to convince voters of their worthiness to pass judgment and impose punishment on others, might be especially reticent to test the validity of a provision if their actions might label them a law-breaker.”

See also Butler v. Alabama Judicial Inquiry Commission, 802 So. 2d 207 (Alabama 2001) (holding unconstitutional a prohibition on “true information about a judicial candidate or an opponent that would be deceiving or misleading to a reasonable person”); Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002) (holding unconstitutional a prohibition on “communication which the candidate knows or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the communication considered as a whole not materially misleading or which is likely to create an unjustified expectation about results the candidate can achieve”); In re Chmura, 608 N.W.2d 31 (Michigan 2000) (holding unconstitutional a prohibition on communications that are false, fraudulent, misleading, or deceptive; that contain a material misrepresentation of fact or law; that omit a fact “necessary to make the statement considered as a whole not materially misleading;” or that “likely create an unjustified expectation about the results a candidate can achieve”).

Rule 4.1A(11) of the current American Bar Association Model Code of Judicial Conduct provides that a judicial candidate “shall not knowingly, or with reckless disregard for the truth, make any false or misleading statement,” and at least 19 states prohibit misleading as well as false information. In addition to a general prohibition, both the Arizona code of judicial conduct and Ohio code prohibit specific types of misrepresentations. For example, both codes give examples of language that is prohibited because it suggests the candidate is the incumbent if, in fact, the candidate is not (the misrepresentation that has led most frequently to discipline). Both also, for example, prohibit a candidate from “falsely identify[ing] the source of a statement, issu[ing] statements under the name of another person without authorization, or falsely stat[ing] the endorsement of or opposition to a judicial candidate by a person, organization, political party, or publication.”

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