Judge candidates may speak freely

Prospective judges campaigning for office have a First Amendment right to discuss with voters controversial legal issues and to criticize past court decisions.

In a free-speech decision with national implications, the Supreme Court on Thursday struck down an ethics code in Minnesota that, in an attempt to maintain judicial impartiality, barred candidates from announcing their views on "disputed legal or political issues."

"We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election," wrote Justice Antonin Scalia for the majority.

The 5-to-4 decision means that Minnesota and eight other states must rewrite ethics codes to permit some level of discussion of disputed legal and political issues by judicial candidates.

Free-speech proponents view the case as an important affirmation that candidates, whether for the bench or other elected offices, have a right to communicate directly with voters without facing censorship.

Experts say the decision could also be a key indication of how the court might rule in the McCain-Feingold campaign-finance bill now working its way through the courts.

"In striking down a gag order, the Supreme Court is preserving the right of candidates – including judicial candidates – to disseminate their message," says Jan Baran, a leading election-law expert. "It is an encouraging sign for those who are challenging the constitutionality of the McCain-Feingold bill."

But reform advocates say the decision in the case, Republican Party of Minnesota v. Kelly, will only exacerbate a negative trend in judicial elections – mud-slinging, negative advertising, and the influx of vast sums of special-interest money. "This will open the door to candidates who want to use their campaign speech to solicit donors and wealthy special interests, who are increasingly becoming involved in judicial campaigns," says Deborah Goldberg of the Brennan Center for Justice in New York. "This has an unfortunate effect on the ability of our courts to remain fair and impartial."

Unlike federal judges, who are appointed for life, state judges in 39 states must run for election. In general, states must establish their own ethics codes for the elections. Such codes reflect an understanding that the role of judges is different from that of lawmakers and other politicians. A judge is expected to be impartial in weighing the facts and applying the law to disputes.

The case arose as a result of a lawsuit filed by Minnesota attorney Gregory Wersal and the state GOP challenging an ethics code. Mr. Wersal twice ran for a seat on the state supreme court and twice faced potential ethics violations.