by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law
The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.
The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.
It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.
While the Court has not issued an unequivocal pronouncement on the immunity of false campaign speech, the weight of its holdings and those of lower courts in this area point decidedly in that direction. This interpretation received a substantial boost five years ago in United States v. Alvarez. There, the Court struck down the Stolen Valor Act in a case involving a legally and morally egregious violation of the law’s prohibition against falsely purporting to have earned a military medal. Although two of the six Justices in the majority applied intermediate rather than strict scrutiny, both the plurality and concurrence pointedly rejected the notion that intentionally false statements—in the absence of legally cognizable harm--categorically fall outside the ambit of free speech.
Even assuming that false political campaign speech is broadly protected, however, it can be argued that First Amendment standards governing candidates’ speech should be modified to account for the judiciary’s distinctive duties and character. That has certainly been the premise of longstanding judicial campaign codes barring expression in ways that would be untenable for other political candidates. That logic, though, was dealt a severe blow in Republican Party of Minnesota v. White, where the Court struck down a law forbidding judicial candidates to announce their views on disputed legal or political issues. Applying strict scrutiny, the Court determined that the ban was not narrowly tailored to serve the state’s asserted interests in judicial impartiality and the appearance of judicial impartiality. It remains to be seen how other restrictions on judicial candidates’ speech will fare. However, given the fate of the “announce clause”—a restriction more directly tied to threats to judicial impartiality than the misrepresent clause—prohibitions on aspiring judges’ dishonesty appear unlikely to survive strict scrutiny.
Though apparently required by First Amendment doctrine, a license to lie for judicial candidates is admittedly unsettling. At the same time, however, false judicial campaign speech is not inevitable. Rather, states can eliminate the source of the problem by dispensing with judicial elections themselves. An anomaly among Western nations, an elected judiciary has long been criticized as a threat to judges’ impartiality and independence. Most notably, judges may be reluctant to issue unpopular decisions that could jeopardize their reelection. In addition, they may be tempted to assign undue weight to the interests of campaign contributors. As the framers of the Constitution recognized, these dangers are avoided under a system of appointed judges. Such a system avoids as well the First Amendment difficulties raised by judicial campaign speech codes.