This post is an excerpts from a paper prepared by the National Center for State Courts. NCSC gave permission to reprint this article. Please let me know if you would like a copy.
Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
False or misleading statements
Rule 4.1(A)(11) of the 2007 American Bar Association Model Code of Judicial Conduct provides: “A judge or judicial candidate shall not . . . knowingly, or with reckless disregard for the truth, make any false or misleading statement.” The prohibition on false statements has withstood several constitutional challenges, but the 6th and 11th Circuit Courts of Appeals (in cases from Kentucky and Georgia), the U.S. District Court for the Southern District of Ohio, and the state supreme courts in Alabama, Michigan, and Ohio have held that a prohibition on misleading statements in judicial election campaigns violates the First Amendment.
A judicial candidate challenged the prohibition on false statements in the Ohio code of judicial conduct when she was reprimanded for identifying herself as an incumbent judge when she was not. In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014). The Ohio code of judicial conduct provided that:
During the course of any campaign for nomination or election to judicial office, a judicial candidate, by means of campaign materials, including sample ballots, advertisements on radio or television or in a newspaper or periodical, electronic communications, a public speech, press release, or otherwise, shall not knowingly or with reckless disregard . . . post, publish, broadcast, transmit, circulate, or distribute information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false or, if true, that would be deceiving or misleading to a reasonable person.
Applying strict scrutiny, the Ohio Supreme Court held that the state has a compelling government interest in ensuring truthful judicial candidates, noting “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.” The Court concluded that the code’s limit on “a judicial candidate’s false speech made during a specific time period (the campaign), conveyed by specific means (ads, sample ballots, etc.), disseminated with a specific mental state (knowingly or with reckless disregard) and with a specific mental state as to the information’s accuracy (with knowledge of its falsity or with reckless disregard as to its truth or falsity) is constitutional.”
In a challenge to the Kentucky code of judicial conduct, the U.S. Court of Appeals for the 6th Circuit held that the clause prohibiting false statements made knowingly or with reckless disregard for the truth “is constitutional on its face.” Winter v. Wolnitzek, 2016 U.S. App. LEXIS 15544 (U.S. Court of Appeals for the 6th Circuit 2016) (http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0206p-06.pdf).
The narrowest way to keep judges honest during their campaigns is to prohibit them from consciously making false statements about matters material to the campaign. This canon does that, and does it clearly. In the words of the district court: “Don’t want to violate the Canon? Don’t tell a lie on purpose or recklessly.” . . . Given the mens rea requirement, a judicial candidate will necessarily be conscious of violating this canon.
The Court noted that it had recently invalidated a ban on false statements that covered non-judicial candidates for political office in Ohio, but stated that the Ohio law was broader than the Kentucky rule and emphasized that Kentucky’s interest in preserving public confidence in the honesty and integrity of its judiciary is narrower and “more compelling than Ohio’s purported interest in protecting voters in other elected races from misinformation.”
However much or however little truth-bending the public has come to expect from candidates for political jobs, “[j]udges are not politicians,” and a “State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” . . . Kentucky has a “vital state interest” in safeguarding the public’s confidence in the honesty of its judiciary, . . . and the State’s ban on materially false statements by judicial candidates survives strict scrutiny — at least facially.
Reviewing the recommendation of the Judicial Tenure Commission that a judge be suspended without pay for 90 days for misleading ads during his election campaign, the Michigan Supreme Court considered a provision then in its code providing that a judicial candidate “should not use or participate in the use of any form of public communication that 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 statement 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). The Court acknowledged that the canon serves the compelling state interests of preventing fraud and libel, preserving the integrity of the election process from distortions caused by false statements, and preserving the integrity of and public confidence in the judiciary. However, concluding that, to avoid the risk of discipline, a judicial candidate would merely state academic credentials, professional experience, and endorsements received, the Court found that the canon precludes meaningful debate concerning the overall direction of the courts and the role of individual judges in contributing to that direction, impeding the public’s ability to influence the direction of the courts through the electoral process. The Court narrowed the canon to provide that a candidate for judicial office “should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false,” which, it stated, was an objective standard.
The Alabama Supreme Court noted that the state has a compelling interest in protecting the integrity of the judiciary but concluded that language then in its code prohibiting the dissemination of “true information about a judicial candidate or an opponent that would be deceiving or misleading to a reasonable person” was “unconstitutionally overbroad because it has the plain effect of chilling legitimate First Amendment rights.” Butler v. Alabama Judicial Inquiry Commission, 802 So. 2d 207 (Alabama 2001). The Court narrowed the canon to provide that a candidate for judicial office shall not disseminate demonstrably false information concerning a judicial candidate or an opponent with actual malice — that is, with knowledge that it is false or with reckless disregard of whether it is false.
In 2002, the U.S. Court of Appeals for the 11th Circuit held unconstitutional a Georgia canon prohibiting a judicial candidate from using or participating “in the use of any form of public 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.” Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002). The Court concluded that the challenged speech restriction does not afford the requisite “breathing space” to protected speech because the “chilling effect of . . . absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns.” The Court held that “to be narrowly tailored, restrictions on candidate speech during political campaigns must be limited to false statements that are made with knowledge of falsity or with reckless disregard as to whether the statement is false — i.e, an actual malice standard.”
Although it upheld the ban on false statements, the 6th Circuit held that the “ban on misleading statements fails across the board.” Winter v. Wolnitzek, Opinion (U.S. Court of Appeals for the 6th Circuit August 24, 2016) (http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0206p-06.pdf). It explained:
If “misleading” adds anything to “false,” it is to include statements that, while technically true or ambiguous, create false implications or give rise to false inferences. But only a ban on conscious falsehoods satisfies strict scrutiny. . . . Unknowing lies do not undermine the integrity of the judiciary in the same way that knowing lies do, and the ability of an opponent to correct a misstatement “more than offsets the danger of a misinformed electorate.” This clause adds little to the permissible ban on false statements, and what it adds cannot be squared with the First Amendment.
Similarly, the Ohio Supreme Court held that a clause “prohibiting the dissemination of information that ‘if true,’ ‘would be deceiving or misleading to a reasonable person’ is unconstitutional because it chills the exercise of legitimate First Amendment rights.” In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014). It stated:
This portion of the rule does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners. The language requires candidates to “attempt to determine whether a reasonable person would view their speech as somehow misleading or deceptive.” . . . As a result, candidates will often choose to avoid adverse action by remaining silent even when they have good reason to believe that what they want to say is truthful.
Severing the unconstitutional clause, the Court narrowed the rule to prohibit a candidate for judicial office from posting, publishing, broadcasting, transmitting, circulating, or distributing “information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false.”
That candidate won her campaign for the Court of Appeals and then wanted to use the term “Judge” in her campaign for the Ohio Supreme Court. She, therefore, challenged in federal court a comment to the Ohio code that states a sitting judge who is a candidate for a judicial office other than the court on which he or she currently serves shall not use the title “judge” without identifying the court on which the judge currently serves. Those defending the code argued her proposed phrases (such as “Elect Judge O’Toole to the Ohio Supreme Court”) were misleading. A federal district court agreed that voters could be misled but concluded that the examples do not represent false speech or even obviously misleading, speech and held that prohibiting true but misleading speech restricts more speech than is necessary to achieve the government’s aims. O’Toole v. O’Connor, 2016 U.S. Dist. LEXIS 109923 (August 18, 2016). (It did not grant judgment for the plaintiff but invited a motion for judgment on the pleadings.)