Concept
Campaign Speech Rules
Political and campaign activity
Campaign Speech Rules
The prohibitions covered so far ask whom a judge or judicial candidate stands with. Rule 4.1(A)(1) through (3) bar a judge from leading a political organization,1 speaking on its behalf,2 or publicly endorsing or opposing a candidate for any public office,3 and the rules on contributions, events, party labels, and committees share that concern. Each asks which faction or campaign the judicial office is being attached to, and none turns on whether the judge's words are accurate. A candidate who speaks only for her own election steps outside the party-speech ban, yet the Code still governs what she says.
Three later paragraphs of Rule 4.1(A), numbered (11) through (13), regulate the content of a candidate's own campaign speech. Each asks a different question and protects fair adjudication by a different route. Paragraph (11) asks whether a statement is true. A false or misleading statement corrupts the choice voters are making, and it shows that a candidate for a seat built on public trust will deceive the public to win it. Paragraph (13) asks whether a statement commits the candidate to a result in cases likely to come before the court. A pledge gives a future litigant a judge who has decided before hearing anyone. Paragraph (12) asks whether a statement touches a matter pending or about to be filed. Such a comment can shape the outcome, leave the parties doubting that the court will weigh their case fresh, and force the judge off a matter the judge has already discussed in public.
These paragraphs draw the most constitutional attention in Rule 4.1(A). A ban on party office or a dinner ticket restricts association and money. A rule that dictates what a candidate may say restricts speech at the point where voters most need it, because voters choose among candidates largely on what the candidates tell them. Each rule below therefore invites the objection that it silences the speech an election exists to produce. Read each for the interest it serves and for how closely it is drawn. The last sections of this chapter return to the objection in full.
False or Misleading Statements
Rule 4.1(A)(11) forbids a judge or judicial candidate to “knowingly, or with reckless disregard for the truth, make any false or misleading statement.”4 The earlier paragraphs asked which faction a candidate's office is attached to. This one asks whether voters can trust what the candidate tells them. Two elements must both be present: the statement must be false or misleading, and the speaker must have acted knowingly or with reckless disregard for the truth. The asterisk after the word “knowingly” in the rule's text marks a term the Code defines separately; in ordinary terms, the speaker actually knew the statement was untrue. A false statement alone, or a bad state of mind alone, shows no violation.
The content element reaches beyond literal falsehood. A statement is false when it is untrue. It is misleading when each word is accurate but the listener comes away with an untrue impression, as when an omitted fact changes the meaning of what remains. Without the word “misleading,” a candidate could deceive voters with chosen half-truths and then point out that every sentence was accurate. The rule also covers any such statement, so it reaches claims about the candidate's own credentials and record as readily as claims about an opponent.
The rule exists because voters choose judges on what candidates and campaigns say. A voter rarely watches a candidate decide cases, so the choice rests on claims about experience, record, and rivals, and a voter cannot easily check a claim such as how many cases an opponent has tried. A false claim therefore corrupts the choice at its source: the voter acts on a fact that is not so and has no practical way to learn it. The rule also protects the court. A candidate who knowingly deceives the electorate to win a seat has shown disregard for the honesty that judicial office demands, and the public draws conclusions about the bench the candidate would join. One prohibition answers both harms, the harm to the election and the harm to the institution.
The mental-state element has its own justification. Campaign speech sits at the core of First Amendment protection, and heated campaigns produce loose phrasing and honest mistakes along with deliberate lies. If every inaccuracy were punishable, a candidate would have to verify every adjective before speaking, and the sensible response would be silence about opponents and issues, which takes from voters the information the rule exists to protect. A line at knowledge or reckless disregard punishes deceit and indifference to truth, which add nothing to public debate, and it spares honest error. The phrase tracks New York Times Co. v. Sullivan, which allows a statement about a public official to be punished only if it was both false and made with actual malice, meaning knowledge of falsity or reckless disregard as to its truth or falsity.5 In that defamation setting, reckless disregard requires more than a departure from reasonably prudent conduct.6 A speaker who merely should have checked has not crossed the line. A speaker who strongly suspected a claim was false and published it anyway has.
Courts hesitate to punish campaign rhetoric even when a disciplinary rule is available. In Attorney Grievance Commission v. Stanalonis, the Maryland Court of Appeals declined to find that a candidate for judicial office had violated Rule 8.2 by exaggerating an opponent's position on an issue.7 Rule 8.2(a) is the professional conduct rule that bars a lawyer from making a statement the lawyer knows to be false, or makes with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge or of a candidate for judicial or legal office. The candidate in that case was subject to it as a lawyer.8 The court observed that even if an objective test normally applies under that rule, there is a significant argument for a subjective test in an election context, given the core First Amendment values at stake.9 It added that “there inevitably is some imprecision in language used during the heat of a political campaign” and that “campaign flyers are not appellate briefs.”10
Because Stanalonis applied the lawyer rule, it does not supply the standard for a judge or judicial candidate under Rule 4.1(A)(11), and an exam answer should not cite it as if it did. It illustrates something else: courts hesitate to punish exaggerated campaign language, because speech about candidates for public office, judicial candidates included, lies at the core of First Amendment freedoms.11 Paragraph (A)(11) builds the same caution into its text. The knowledge-or-recklessness element keeps a candidate's loose but sincere exaggeration outside the rule. The last sections of this chapter take up the constitutional standard directly.
An exam stem about a harsh campaign flyer invites the quick question whether the flyer was accurate, but accuracy settles only the first element.
The two flyers carry the same words and the same falsity, so what separates them is what each candidate knew when the flyer went out. The line can move with the facts. Had the second candidate known strong reasons to doubt the claim and mailed it without caring whether it was true, the flyer would show reckless disregard, and his position would sit close to the first candidate's. Stanalonis sits nearer the other end: the complaint there concerned an exaggerated description of an opponent's position, the kind of imprecision the court attributed to the heat of a campaign.
Pledges and Promises
Rule 4.1(A)(13) forbids a judge or judicial candidate, in connection with cases, controversies, or issues likely to come before the court, to make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.14 The asterisk after the word “impartial” marks a term the Code defines separately. The preceding rule asks whether a candidate's statements are true. This one asks whether the candidate's words have bound the person who will later decide cases. Its sentence has three working parts, and each narrows the rule. The subject-matter phrase confines it to cases, controversies, or issues likely to reach the court. The conduct words confine it to statements that obligate the speaker. The closing clause confines it to obligations that would interfere with deciding fairly. A violation requires all three: a binding statement on a subject that will never reach the court falls outside the rule, and so does a statement on a relevant subject that binds the speaker to nothing.
A promise about outcomes damages the judge who makes it. A candidate who tells voters how cases will come out makes that promise part of the reason for election, and then must hear litigants whose positions run against it. Keeping the promise risks deciding with a closed mind. Breaking it invites the charge that the judge said one thing to win votes and did another in office.
Two interests support the rule. The first is the litigant's due process right to an impartial and disinterested tribunal, which corresponds to the judge's obligation to avoid prejudgment.15 The second is the public's confidence in the integrity and impartiality of its judiciary. A dissent decides nothing, but the dissent in Republican Party of Minnesota v. White records that the parties themselves agreed the pledges or promises clause advances that interest, in addition to protecting litigants' due process rights.16
The clearest violations are commitments about outcomes, and they come in two forms. re Kinsey found no First Amendment protection for a candidate's statement of intent to “help law enforcement by putting criminals where they belong—behind bars!”17 The candidate had also pledged to crime victims that she would bend over backward for them and had stressed that she identified with them above all else. The court held that these pledges adversely affected her appearance of impartiality and fitness as a judge, and it gave particular weight to the concern of criminal defendants and defense lawyers about facing a fair and impartial tribunal.18 Kinsey shows that a commitment needs no formula such as “I promise.” A slogan can commit a candidate on a whole category of cases, and the defendant who hears it learns which side the candidate has chosen.
A West Virginia justice, speaking as a judicial candidate about tort-reform legislation whose constitutionality was likely to reach the court, said, “I will not vote to overturn it, I will not vote to change it. I will not vote to modify it.”19 That statement fixes a vote on an identifiable law, so it is the easier case. The Kinsey slogan is a looser commitment whose force depends on how listeners hear it. Both fall within the rule because each tells the public, before any litigant has been heard, how a class of disputes will come out.
A promise about how a judge will run the court differs from a promise about how the judge will decide cases. The rule reaches only commitments inconsistent with impartial performance of adjudicative duties, and a promise about management or about action outside the courtroom commits the judge on no litigant's case.
The answer turned on what each candidate promised. A judge can improve the backlog and the jury summons without deciding anything in advance, and every litigant still receives a hearing at the end of the improved process. The eviction promise has already decided the case for one side. Labels do not control the result. A vow presented as administrative but working by fixing how individual matters come out, such as a vow to deny every request for a continuance, is a promise about results, because the test is whether the commitment would constrain how the judge decides.
A statement of view differs from both. The White majority drew a related distinction when it explained that announcing views on an issue covers much more than promising to decide the issue a particular way: the announce prohibition reached even a candidate's mere statement of a current position when the candidate had not bound himself to keep it after the election.20 Minnesota's code also contained a separate clause barring pledges or promises of conduct in office other than faithful and impartial performance, and the Court noted that this clause was not challenged and that it expressed no view on it.21 The Code's counterpart in its judicial-performance rules, Rule 2.10(B), uses the same words about pledges, promises, or commitments. It leaves room for a judge to announce views on issues likely to arise in future cases, although the line between announcing a view and making a pledge is uncertain.22
The hinge in that exchange is whether the candidate bound himself. The words “I believe” leave him free to hear the challenge with an open mind, and the words “I will vote” remove that freedom. A view that stays inside Rule 4.1(A)(13) may still run into other rules, including the one on pending and impending matters taken up next. Because a single answer can contain a view and a vow side by side, sort each sentence separately.
The constitutional status of the rule remains open. The clause that fell in White was the Announce Clause, which barred candidates from announcing views on disputed legal or political issues. The pledges clause stood separately in the Minnesota code and went unchallenged, so the Court said nothing about its validity.23 The Court's silence is not an endorsement, and the constitutionality of the Code's pledge provision is still regarded as uncertain after White.24 The rule's support comes from the due process and public-confidence reasoning recorded in the White dissent,25 from the parties' agreement in that case, and from decisions like Kinsey that refused First Amendment protection to a candidate's pledge. The last section of this chapter returns to White and to the strict-scrutiny framework that decides how such rules are tested.
A commitment made in public can also cost the judge the very case it concerned. Rule 2.11(A)(5) makes a judge subject to disqualification for a public statement, made as a judge or judicial candidate, that “commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.”26 The ABA responded with the provision in 2003 to concern about the effect of campaign promises on impartiality, and by its terms it is not limited to campaign statements.27 The West Virginia justice who made the tort-reform statement first declined to step aside when the legislation reached the court, reasoning that “my predisposition does not equate to an actual bias.”28 He ultimately withdrew.29 A litigant defending that legislation faced a decision-maker who had told the public in advance how the vote would go, and disqualification protects that litigant's claim to a fresh hearing.
Pending Cases and Recusal Risk
Rule 4.1(A)(12) forbids a judge or judicial candidate to “make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”33 The asterisks after “pending” and “impending” mark terms the Code defines separately; in ordinary terms, a pending matter is already before a court and an impending matter is about to be. The pledge rule looks ahead to cases and issues likely to arrive someday and asks whether the candidate committed to a result. Paragraph (A)(12) looks at a dispute that exists or is about to and asks whether anything said about it could shape how it ends or leave the parties doubting that it will be decided fairly. Campaigning sharpens the risk. The speaker talks to win votes, and a later ruling that matches the remark can look like repayment to the audience that applauded.
The text has three features, and each does separate work. The standard is objective: the question is what a statement would reasonably be expected to do, not what the speaker meant by it. A remark from a judge, or from a candidate for the bench, carries the weight of the office, and a litigant loses confidence in a fair hearing whether the speaker meant harm or only spoke carelessly. The rule also names two distinct harms. A statement can affect the outcome by influencing the people who will decide the matter, and it can impair fairness merely by giving a party good reason to think the decision-maker has already chosen a side, even if the result never changes. Finally, the rule reaches a matter pending or impending in any court, so the matter need not sit before the speaker's own court. Comments on issues the courts may confront only at some uncertain later time fall outside paragraph (A)(12), because their effect on real or perceived impartiality is more attenuated. The pledge rule, not this one, governs commitments about those issues.34
Decisions about sitting judges show how a public statement during a live case goes wrong. In United States v. Microsoft Corporation, the D.C. Circuit required the disqualification of a trial judge who gave secret interviews to selected reporters before entering final judgment, offering views on the credibility of witnesses, the validity of legal theories, the defendant's culpability, and the choice of remedy.35 In Ligon v. City of New York, the judge gave a series of media interviews and public statements while the stop-and-frisk challenge was pending, and the Second Circuit reassigned the case on its own initiative because the statements gave rise to an appearance of impropriety.36 The Microsoft remarks went to the merits of the case itself. The Ligon court explained that interviews in which the presiding judge draws distinctions between herself and her colleagues might lead a reasonable observer to question the judge's impartiality.37 Neither decision applied paragraph (A)(12), which is a Model Code rule, so they illustrate the hazard and do not state the rule.
Both speakers are candidates, both are talking about murder prosecutions, and both are addressing a crowd. The answer turned on whether the remark concerns a particular matter and how that matter should end. Criticism of the system touches no dispute that someone must decide. A verdict urged in a named defendant's pending trial touches exactly that.
A campaign statement can also create a second problem that has nothing to do with discipline. Discipline asks whether the speaker broke a conduct rule when speaking. Recusal asks whether the judge can fairly hear one particular case once it arrives. The two questions can have different answers, so a statement that does not violate paragraph (A)(12) may still be offered later as a reason for the judge to step aside. Grievance Administrator v. Fieger shows courts dividing over campaign speech aimed at an identifiable litigant. The lawyer, Mr. Fieger, was a party before the Michigan Supreme Court, and a dissent argued that four justices who had mentioned him in their campaigns, Chief Justice Taylor and Justices Corrigan, Young, and Markman, had to recuse themselves.38
The joint opinion, written for the justices whose campaigns were at issue, rejected that demand. It reasoned that none of the statements the dissent cited was untrue, and that pointing out Mr. Fieger's opposition to the justices showed no inherent bias or prejudice.39 It also observed that bias can run in favor of a supporter as readily as against an opponent, so a candidate who accepts a group's endorsement would, on the opposing logic, be biased toward that group, and the justices themselves had sought and publicized support from individuals and organizations.40 It added that disqualifying candidates for such remarks would silence those who are criticized by lawyers while leaving free the candidates whose opposition comes from other quarters.41
The dissent, which states no holding, read the same campaigns differently. It argued that due process requires a judge to step aside when campaign statements show extreme antagonism toward a specific individual who later appears as a party. It relied on State ex rel. La Russa v. Himes, where the Florida Supreme Court held that a judge's campaign statements disqualified him from presiding over the later trial of Philip La Russa for violating lottery laws.42
The two opinions disagreed about what the examples showed. Among the dissent's examples was a remark about the number of cases Mr. Fieger had on appeal, which the joint opinion read as a possible explanation for his interest in who sat on the Court, stating no animus toward him.43 Another was a fundraising letter from the Committee to Re-elect Justice Corrigan, written by former Governor John Engler, warning against “the Fiegers of the trial bar” and an “11th hour sneak attack.”44 The letter went out on February 20, 2006, while Mr. Fieger's case was pending before the Court.45
The same words can be read as a description of the political field or as a signal about a pending case, and the two opinions drew that line in different places. A truthful statement that a litigant backs the speaker's opponents describes an alignment and, on the joint opinion's view, shows no bias. A statement that shows extreme antagonism toward a litigant is the kind the dissent would treat as disqualifying, and one that tells the public how the litigant's pending case should end is the kind paragraph (A)(12) targets. Fieger was a dispute over recusal, not a proceeding to discipline the justices for their speech. For analysis, ask whether the statement concerns a particular matter or litigant, whether it describes a political alignment or shows hostility, and whether the matter was pending or impending when the words were spoken. Campaign speech can create two separate exposures: discipline for the statement and recusal from the case it concerns.