A rare case of intolerable risks

In a 5-4 vote, applying a strict scrutiny analysis, the U.S. Supreme Court rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions in Williams-Yulee v. The Florida Bar.  The Court affirmed the judgment of the Florida Supreme Court publicly reprimanding a former judicial candidate for a letter she had signed asking for contributions to her campaign that was mailed and posted on her campaign web-site.

The Court began with the key principle of its decision:

Judges are not politicians, even when they come to the bench by way of the ballot.  And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.  A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.

The Court concluded:  “This is . . . one of the rare cases in which a speech restriction withstands strict scrutiny.”

First, the Court found that the Florida Supreme Court had adopted the personal solicitation clause “to promote the State’s interests in ‘protecting the integrity of the judiciary’ and ‘maintaining the public’s confidence in an impartial judiciary.’”  Next, the Court held that the state’s interest in preserving public confidence in judicial integrity was compelling.  Particularly “because most donors are lawyers and litigants who may appear before the judge,” the Court noted that, “in the eyes of the public, a judge’s personal solicitation could” tempt the judge “even unknowingly” to repays the contribution.  The Court held:  “A State’s decision to elect its judges does not require it to tolerate these risks.”

There is a longer summary of the decision in the section on the personal solicitation clause in “Case-law Following Republican Party of Minnesota v. White.

There are several differences between the analysis of the 5-4 majority in Williams-Yulee upholding the judicial campaign restriction and the analysis of the 5-4 majority in Republican Party of Minnesota v. White in 2002 overturning a judicial campaign restriction prohibiting judges and candidates from announcing their views on legal and political issues.

One of the disconcerting aspects of the decision in White was its suggestion that the Minnesota Supreme Court had adopted the announce clause not to promote judicial integrity, as the state court claimed, but to undermine judicial elections.  Justice Scalia, in his majority opinion in White, stated that it was hard to believe – “a challenge to the credulous”– that the clause had been adopted “as a means of pursuing the objective of open-mindedness that respondents now articulate. . . .”  He reiterates that skepticism about the motives and sincerity of state supreme courts in his dissent in Williams-Yulee, stating that the scope of the clause “suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning.”

In contrast, Chief Justice Roberts in the majority opinion in Williams-Yulee is very respectful of the positions not only of the Florida Supreme Court, but of the 30 state supreme courts that have adopted a version of the personal solicitation clause.  The majority does not question that protecting judicial integrity is, in fact, the purpose of the clause and relies on the conclusions of the state courts as evidence that the interest is compelling.  For example, the majority states, “Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”  The majority also concludes that any flaws in the canon are not, as the dissent suggests, evidence of pretext, but “accommodations [that] reflect Florida’s effort to respect the First Amendment interests of candidates and their contributors—to resolve the ‘fundamental tension between the ideal character of the judicial office and the real world of electoral politics.’”

White held that the announce clause was simultaneously not narrow enough (because it applied to issues as well parties) and too narrow (underinclusive because it did not apply to candidates’ speech before they became judicial candidates or after they became judges).  The opinion in Williams-Yulee does not have that inherent contradiction.

The majority stated that the canon must be narrowly tailored, not “’perfectly tailored’” and that states do not have to address “evils [only] in their most acute form.”  The Court emphasized that the “considered judgments” of “most States with elected judges . . . deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance—how to select those who ‘sit as their judges.’”

The Williams-Yulee Court also rejected the candidate’s argument that the personal solicitation clause was unconstitutionally underinclusive and acknowledged “a State need not address all aspects of a problem in one fell swoop” but may focus on its most pressing concerns.  The Court concluded that “the solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary:  personal requests for money by judges and judicial candidates.”

Another Facebook fail

The Texas State Commission on Judicial Conduct publicly admonished a judge for posting comments about pending cases on her Facebook page.  Public Admonition of Slaughter and Order of Additional Education (April 20, 2015).  The Commission also ordered that she obtain 4 hours of instruction with a mentor on social media.  The judge told the Houston Chronicle she will appeal the admonition.

The judge’s Facebook page identified her as a judge and was accessible to any person who wished to view it.  Although comments about two additional cases were also covered by the admonishment, it focuses on posts about the jury trial of David Wieseckel on charges he kept a 9-year-old boy in a 6-foot-by-8-foot wooden enclosure.  In a post on April 26, 2014, the judge stated, “We have a big criminal trial starting Monday!  Jury selection Monday and opening statements Tues. morning.”  In response, the following day, someone posted on the judge’s page:  “One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor…..”

On April 28, in oral and written instructions, the judge admonished the jury not to talk about the case, for example, stating “no texting, e-mailing, talking person to person or on the phone or Facebook” and adding, “these rules apply to jurors the same as they apply to the parties and to me.”

On April 29, after the first day of testimony, the judge posted on her Facebook page, “Opening statements this morning at 9:30 am in the trial called by the press ‘the boy in the box’ case,” and “After we finished Day 1 of the case called the ‘Boy in the Box’ case, trustees from the jail came in and assembled the actual 6’x8’ ‘box’ inside the courtroom!”  At time, the “‘actual’ box” had not been admitted as evidence.  She also linked to a Reuters article entitled, “Texas father on trial for putting son in a box as punishment.”  The article had information about extraneous offenses, which the judge had instructed the jury to disregard and which had not been admitted into evidence.

Defense counsel filed a motion to recuse the judge and a motion for mistrial based on her Facebook comments.  Both motions were granted by other judges.

The judge argued her comments promoted “transparency,” encouraged “individuals to come watch the proceedings,” did not suggest her probable decision, and were true and based on publicly available information.  The Commission concluded, however, that the judge’s public Facebook posts were “clearly inconsistent with the proper performance of her duties and cast public discredit upon the judiciary or administration of justice in light of the considerable negative media attention given the case and her posting.”

Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the Wieseckel case or in other high-profile cases.  The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial.

The Commission also found that the judge’s Facebook activities interfered with her judicial duties, noting the recusal and mistrial.

This case has been added to the list of decisions and advisory opinions involving social media the Center for Judicial Ethics keeps here.