Free speech of Indiana judicial candidates remains chilled under Seventh Circuit ruling

August 23, 2010

On Friday, August 20, 2010, the Seventh Circuit upheld as constitutional all of the canons challenged in the judicial canons case in which Indiana Right to Life is a plaintiff. The case is directly related to Indiana Right to Life’s 2008 judicial candidate survey in which judicial candidates were asked to share their views on disputed legal or political issues. Indiana Right to Life believes judicial candidates may clearly express their views on legal and political issues without fear of being sanctioned by judicial or legal ethics authorities for doing so. Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002).

Opinion Seventh Circuit August 20 2010

Indiana Right to Life certainly recognizes that judicial candidates should maintain actual and apparent impartiality. Thus, Indiana Right to Life recognizes that judicial candidates should not pledge or promise certain results in particular cases. Nevertheless, in judicial elections, voters need to know the views of judicial candidates in order to make intelligent and conscientious decisions regarding candidates’ general views on the law and personal values. This questionnaire is intended to elicit candidates’ views on issues of vital interest to the constituents of Indiana Right to Life without subjecting candidates answering its questions to accusations of partiality or requiring candidates to recuse themselves in future cases.

With regard to the solicitation and partisan activities clause, the Court followed the recent Siefert decision, applying what Indiana Right to Life believes is the wrong legal standard to the clauses to find them constitutional. It upheld the commits clause, stating that Indiana Right to Life’s questionnaire only asks for announcements, not commitments and that any vagueness as to the reach of the clause can be fixed through advisory opinions or through enforcement proceedings against judges. The recusal clause the Court upholds because the state is permitted to regulate the speech of its employees.

The overarching sentiment of the decision is that judges and judicial candidates have available to them a Commission that can tell them what they can or cannot do and that can make exceptions for them on a case by case basis. The Court seems to believe this is a satisfactory means by which to strike the balance between free speech and impartiality. The inherent chill on speech because of such an process seems to be of little concern to the Court.

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