Georgia judicial candidates may speak more freely
By The Associated Press
ATLANTA A federal appeals court panel has removed several restrictions on judicial candidates in Georgia, saying elections for judges should be conducted like any other political campaign.
As a result, Georgia judicial candidates may soon be able to openly solicit money and support and say what they want about their opponents and not fear official reprimands.
"The distinction between judicial elections and other types of elections has been greatly exaggerated, and we do not believe that the distinction, if there truly is one, justifies greater restrictions on speech," a three-judge panel of the 11th U.S. Circuit Court of Appeals wrote on Oct. 18.
Georgia is one of nearly 40 states that elect some judges, and most of those states restrict what judicial candidates can say or do while campaigning to promote an image of fairness and independence for courts.
The latest court decision overturns those restrictions and gives Georgia judicial candidates the same expansive right of free speech enjoyed by other political candidates.
"Largely the rule with political campaigns is that the candidates speak and the public decides," said William E. Lee, a professor who teaches communication law at the University of Georgia. "We don't involve the government in ascertaining what is the truth and what's fair."
Members of the state Judicial Qualifications Commission, which oversees and enforces rules for judicial candidates, is to meet Nov. 1 to decide how to react to the ruling. The commission could appeal to the full panel of 11th Circuit judges.
"At this point I think we're going to need to review very carefully what the 11th Circuit said," said Cheryl Custer, executive director of the commission. "I believe this is going to have a big effect."
The appeals court affirmed a lower court ruling that false statements in a judicial campaign are illegal only if made with "reckless disregard" for the truth.
"There's no need for the state to step in and punish the speech because most likely the opponent will step in," Lee said.
But the panel went further and struck down another rule that prohibits judges from personally soliciting campaign contributions.
Currently, judicial candidates in Georgia cannot ask people for money or support, but they can establish an election committee for that purpose. The rule is designed to make sure candidates appear impartial.
But the appeals court said that rule restricts free speech without advancing the cause of impartiality, saying "successful candidates will feel beholden to the people who helped them get elected regardless of who did the soliciting."
The decision stems from a 1998 suit filed by George Weaver, who ran unsuccessfully against Leah Sears for a seat on the Georgia Supreme Court. The Judicial Qualifications Commission reprimanded Weaver for making "false and intentionally deceptive" statements about Sears' position on same-sex marriages and the electric chair.
Federal courts increasingly have been wary of government restrictions on the speech of judicial candidates, saying broad prohibitions could lead to candidates remaining silent and too afraid of reprimand to make even truthful statements.
Ruling in a Minnesota case in June, the U.S. Supreme Court struck down strict limits on what judicial candidates may tell voters. The Court voted 5-4 in Republican Party of Minnesota v. Kelly that the rules, while well-intended, imposed an unconstitutional gag order.
High court nixes limits on judicial candidates' speech
Justices say Minnesota's rules, while well-intended, impose an unconstitutional gag order.