First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government's Interest

24 Pages Posted: 15 Nov 2015 Last revised: 17 Nov 2015

Date Written: 2008

Abstract

What does it mean for a judge's campaign speech to be impartial? More importantly, how far may a state go in regulating judicial campaign speech in order to ensure impartiality without violating the First Amendment? In this Debate, Professor Paul E. McGreal, of the Southern Illinois University School of Law, and Dean James J. Alfini, of the South Texas College of Law, explore the permissible limits on judicial campaign speech in light of the Supreme Court's First Amendment campaign speech precedent.

Using the Court's 2002 decision, Republican Party of Minnesota v. White, as a starting point, Professor McGreal argues two points: first, that, for First Amendment purposes, impartiality should be limited to mean only that "a judge will make decisions using the accepted methods of legal analysis;" and second, that campaign promises of specific types of performance once elected "do not necessarily compromise judicial impartiality." Politics, in McGreal's view, is a necessary part of judicial elections, and "the First Amendment does not allow the state to "wring[] politics out of the political process." Thus, according to McGreal, as long as a judge's campaign speech expresses an accepted form of legal analysis, that speech may not be regulated without violating the judicial candidate's First Amendment rights.

Dean Alfini, on the other hand, would require a more stringent regulation of campaign speech and would base such restrictions on the ABA's formulation that judges may not "make pledges, promises, or commitments" in their campaign that would compromise their impartiality. McGreal's more permissive rule, Alfini asserts, would "threaten the due process rights of parties who may come before" elected judges, thus potentially "compromis[ing] their duty and ability to uphold the rule of law in our democratic society." The test for impartiality, then, should focus on "the due process rights of parties," and judges should not be granted McGreal's broader First Amendment protections. Campaign restrictions, then, should be "narrowly tailored to prohibit prejudgment promises."

Keywords: Judicial elections, Campaign, Judges, Campaign Speech

Suggested Citation

Alfini, James J., First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government's Interest (2008). University of Pennsylvania Law Review, PENNumbra, Vol. 157, p. 76, 2008, Available at SSRN: https://ssrn.com/abstract=2690401

James J. Alfini (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
25
Abstract Views
308
PlumX Metrics