In a recent decision that affects judicial elections in Kentucky and throughout the Sixth Circuit (Winter v. Wolnitzek), a unanimous panel weighed eight provisions in Kentucky’s Code of Judicial Conduct against the First Amendment free speech rights of judicial candidates. 

The specific provisions included prohibitions on (1) “campaign[ing] as a member of a political organization” [facially unconstitutional]; (2) “mak[ing] speeches for or against a political organization or candidate” [facially unconstitutional] (3) “mak[ing] a contribution to a political organization or candidate” [upheld] (4)  “publicly endors[ing] or oppos[ing] a candidate for public office” [upheld, but doesn’t apply to opposing one’s own opponent]; (5) “act[ing] as a leader or hold[ing] any office in a political organization” [upheld]; (6) making “false [] statements” “knowingly” or “with reckless disregard for the truth” [facially constitutional but unconstitutional as applied to one plaintiff]; (7) making “misleading” statements [facially unconstitutional]; and (8)  making “commitments” concerning “cases, controversies, or issues that are likely to come before the court” [remanded for further consideration concerning the clause’s meaning].       

 While the Court’s analysis of each provision contains elements of nuance in First Amendment analysis, a key theme running throughout the opinion is that if states decide to elect judges then they cannot deny those candidates the ability to express their beliefs and argue why they are the best candidate for the job (i.e., campaign).  But at the same time that is different than engaging in more quid pro quo-type activities traditionally associated with political actors gathering influence (e.g., making financial contributions, publicly endorsing other candidates, and/or holding office in political organizations).  Given the traditional difference between judges and elected officials in the other branches of government, and the importance of judges applying the law without partiality (or the appearance of any partiality), the latter activities may be prohibited if the law is narrowly drawn to serve that compelling interest.  Ultimately, the court ruled that three of the provisions were unconstitutional on their face (campaigning, speeches, and misleading statements), one was facially constitutional but unconstitutional as applied (false statements), and three were constitutional (endorsements, acting as a leader, and contributions).  With respect to the “commitments” clause, the Court vacated the district court’s judgment and remanded for further consideration.