The Arkansas Supreme Court has posted for public comment a proposed revision in the code of conduct for judges. It mostly follows a template suggested by the American Bar Association, with some alteration to account for special Arkansas circumstances.
The most significant part to the public probably are changes in the portions of the old code that severely limited extrajudicial speech by judges and judicial candidates. The changes are required by federal court rulings that have supported an unbridled First Amendment speech right for judges and judicial candidates. The issue has been highly controversial in Arkansas on account of the long effort by the state’s Judicial Discipline Commission, recently dropped, to punish Appeals Court Judge Wendell Griffen for public comments on policy and political issues, albeit unrelated to matters pending before him.
The debate isn’t over. While the new rules are intended to conform with the court rulings, the draft proposal urges judges and judicial candidates to “consider impact” before speaking about social and political issues.
Judge Griffen remains a First Amendment absolutist, as do we. (Even as we tend to part company with the judge on the wisdom of too much free speech in the public forum by judges.) In an e-mail about the proposal, he says “no legitimate purpose” is served by including the cautionary language in the rule changes.
“One would have hoped that the powers that oversee judicial discipline in Arkansas would have recognized by this late date what the U.S. Supreme Court made abundantly clear when it decided Republican Party of Minnesota v. White in 2002: honest speech by judges and judicial candidates about disputed political and legal subjects which does not concern pending or impending litigation and litigants is protected by the First Amendment from prior restraint by the government.”