Legalese — Judges and the 1st Amendment

He was a local judge, but he made national headlines last week. Judge Jim Hinkle was a Gwinnett County Magistrate Court. He was suspended (and then resigned) from the bench based on what he said on Facebook. He called people protesting the existence of Confederate Monuments “snowflakes” and “nut cases.” He likened them to ISIS. This caused some people to look deeper into his Facebook posts, which revealed posts about his being proud to be a “deplorable infidel.” He said of the new Harriet Tubman $20 bill that it would be the “ugliest $20 bill” ever.

So what? You may wonder why this matters. You may agree with what Judge Hinkle said. In any event, this wasn’t a judicial Facebook page, and Judge Hinkle has a right to his own opinion and, furthermore, a First Amendment right to express it, no?

Well, no, he doesn’t. Judges are human beings, but they must be aware that everything they do is subject to scrutiny. The Commentary in Canon 2 of the Judicial Canon of Ethics says, “Judges must expect to be the subject of constant public scrutiny. Judges must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen, and they should do so freely and willingly.”

In other words, Judges have to assume that everything they do always is subject to public scrutiny, and they need to adjust their behavior accordingly, no matter how burdensome it may be.

Why is this? Well, Canon 2 itself says “Judges shall respect and comply with the law* and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” If a Judge has made a public statement that he thinks that people of a particular political opinion are “nut cases,” how could a person who has made a public declaration of that opinion expect to be treated fairly in front of that judge?

More to the point, Judges are specifically prohibited in engaging in politics. Canon 7 says, “Judges Shall Refrain from Political Activity Inappropriate to Their Judicial Office. A. Political Conduct in General. (1) A judge or a candidate* for public election* to judicial office shall not: (a) act or hold himself or herself out as a leader or hold any office in a political organization*; (b) make speeches for a political organization or candidate or publicly endorse a candidate for public office.” So, if a judge makes it clear what political candidate he or she thinks is the better of those running, then a judge has “publicly endorsed a candidate for public office.” This doesn’t necessarily have to be a direct statement like, “I support Candidate X.” It can be a social media post ridiculing one candidate (or politician) or in support of another. Even engaging in political discourse can run afoul of this rule.

One of my friends, upon retiring from the judiciary, said, “I’m glad to get my First Amendment Rights back!” And it is true – when you accept an appointment to the bench, you have to accept a restriction on your right to free speech. Judges can take a position on things that will improve the law or the judiciary (like the Judicial Qualifications Commission legislation last year) but not politics in general. Judges can’t even attend political meetings unless they are running for office.

As a judge, my personal feelings about the law or any given scenario is irrelevant. The law is what the law is, no matter what I think it should be. Wiser heads than mine have written the law and interpreted it, and I have to follow what they say, no matter what my personal convictions. That is the rule of law. American society is one that lives by the rule of law – not one that lives by the personal opinions of any given judge. And so, if I were to express my personal opinion about a political philosophy or a religion or an ideology in a public forum, it would be reasonable for someone appearing before me that disagreed with me to think that they might not get a fair shake in a battle of believability. It is important that people go into a courtroom knowing that they have just as much of a chance of being believed and taken seriously as anyone else. If I have gone on social media and called people like them, “nut cases,” they have no reason to think that I will take them seriously when their freedom is at stake.

And so, if I don’t ‘like’ your Facebook post, or comment when you might expect me to, that’s why. I can’t. I can’t put political signs in my yard or on the bumper of my car. And, I’d like to believe, everyone in front of me knows that they will be taken at face value.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.