NCPA - National Center for Policy Analysis

Does Rule Gag Judicial Candidates' Free Speech?

March 12, 2002

The Supreme Court will hear arguments in two weeks on a Minnesota rule that prohibits candidates for the bench from "announcing their views on disputed legal or political issues." Whatever the majority decides will have wide national implications, since versions of the rule exist in nearly all the 39 states that hold some form of judicial elections.

The case, Republican Party of Minnesota v. Kelly, concerns whether the rule infringes on judicial candidates' First Amendment rights.

  • Gregory Wersal, a three-time Republican candidate for Minnesota's Supreme Court, argues: "It's frustrating trying to tell people why they should vote for you when you can't give them a good reason to do that."
  • Supporters of the prohibition, including the American Bar Association and some state judges' groups, say restrictions protect judges from being pressured into taking sides on issues that may come before them.
  • But critics contend the rule is an unconstitutional gag that chokes off free-speech rights guaranteed to other office seekers.

The debate might be part of the bigger question as to why state judges are elected in the first place.

The nation's Founding Fathers decided that federal judges were to be appointed by the president and confirmed by the U.S. Senate. But in the early 19th century, states began changing from appointed to elected judiciaries -- a populist move born of a widespread perception that appointed judges were too predisposed to the male, property-owning establishment.

Source: Robert S. Greenberger, "Supreme Court to Decide on Judicial Candidates' Speech," Wall Street Journal, March 12, 2002.


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