The First Amendment, Good and Bad

On Tuesday, July 13, the Sixth Circuit Court of Appeals struck down most of Kentucky’s Judicial Cannons of Conduct which banned judicial candidates from claiming party affiliation and from direct fundraising. The Opinion, by Judge Jeffrey Sutton, said banning campaign fundraising and party affiliations violated the First Amendment’s guarantee of free speech. “Elections are elections, and the same First Amendment applies to all of them…”

The full opinion can be found at:

The Herald-Leader story can be found here:

This ruling is interesting because many judges, including former Supreme Court Justice Sandra Day O’Connor are actively trying to get politics out of judicial elections. There is no doubt that this ruling will increase the partisanship of judicial elections, and also inject partisanship into the courts in a way that has not been seen in Kentucky before.

This partisanship will have a price. If a judicial candidate says, for example, that he will be tough on crime, and then gets elected, it seems extremely likely that criminal defendants will seek to recuse that judge from the case. I suspect that this will become increasingly common. This will increase the cost of criminal trials and will also shift the workload among judges. If the defendant is unsuccessful in the recusal motion and the judge issues an unfavorable ruling, the Judge’s campaign statement will be the bases of an appeal. This also seems likely in some (but certainly not all) civil cases. Where a judge has said something as a candidate during the campaign, his or her words will be fair game to future litigants. And the cost of litigation and the cost of the court system will go up.   

That is the immediate problem with this case, but there is a deeper issue that I would like to explore. There is a tendency to think that because something is good, everything that emanates from it is also good.

The First Amendment is an important foundation of our democracy. It allows us to exchange ideas and debate issues, and allows our democracy to function. It is vital to our system of government, and therefore is good. True, but everything that emanates from the First Amendment is not automatically good. A perfect example is pornography. The Supreme Court has said that obscenity is not allowable under the First Amendment, but pornography is. Now a purist, like the litigants in this case, would argue that the First Amendment says that “Congress shall make no law … abridging the freedom of speech” and a restriction on obscenity is a restriction on speech, so therefore it must be struck down. But most reasonable people have no problem with preventing obscenity because of the harm it can do to society. A judicial political free for all, which conceptually is allowed under the First Amendment, is similarly not good for society.

The bottom line is that simply because the First Amendment (or any other right) allows something it is not necessarily good for society. There must be some attempt to weight the good and the bad, and where appropriate restrict the bad.      

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