Speech Hostile to Gays Constitutionally Unprotected, Speech Hostile to Whites Constitutionally Protected?

James E. Graves, Jr., a Mississippi Supreme Court Justice, has been nominated to serve on the U.S. Court of Appeals for the Fifth Circuit. The Senate Judiciary Committee will be considering his nomination at a hearing next Wednesday, September 29. And while I know only one small corner of Justice Graves’ work, I hope the Committee asks him a question about this corner.

Here’s the issue: In 2004, 2008, and 2009, the Mississippi Supreme Court considered whether state judges should be disciplined for their out-of-court statements that express hostility to particular groups. The key question in each case was whether the judges’ speech was protected by the First Amendment.

In 2004, Justice Graves took the view that a judge was not constitutionally protected against being disciplined for saying (in a letter to the editor of a local newspaper, and in a radio interview) that “gays and lesbians should be put in some type of mental institute.”

In 2008, Justice Graves also took the view that a judge was not constitutionally protected against being disciplined for saying (at a judicial seminar) that “African-Americans in Hinds County [where the judge was serving] can go to hell for all I care.”

But in 2009, Justice Graves took the view that a judge was indeed constitutionally protected against being disciplined for saying (in a speech to a political organiation) that “White folks don’t praise you unless you’re a damn fool,” and “If you have your own mind and know what you’re doing, they [white folks] don’t want you around.”

This particular mix of results strikes me as hard to defend under the First Amendment. Those results of course could be defended by some people on the grounds that the first two statements (in those people’s view) were wrong or unjustifiable, and the third statement was right or justifiable. Such a defense, though, would not be consistent with First Amendment law, under which the constitutional rules cannot turn on whether a reviewing judge agrees with the speech at issue.

But of course I might well be missing some other sensible defense, so I hope the Committee asks Justice Graves: What is the basis for the conclusions you reached, and in particular for the conclusion that speech hostile to gays is constitutionally unprotected against judicial discipline, but speech hostile to whites is constitutionally protected? (As I’ll note below, the 2008 incident involving speech hostile to blacks might be distinguished on other grounds, which is why I primarily focus on the 2004 and 2009 incidents.)

Let me turn to some more details on the cases.

1. The 2004 case is Mississippi Commission on Judicial Performance v. Wilkerson. Judge Wilkerson wrote a letter to his local newspaper criticizing domestic partnership laws enacted in other states, and saying, “In my opinion gays and lesbians should be put in some type of a mental institute instead of having a law like this passed for them.” He was later called by a radio reporter, and made similar statements to the reporter; those statements were then broadcast.

The Commission on Judicial Performance argued that this speech violated a judge’s obligation to promote public confidence in the impartiality of the judiciary, and that the judge should therefore be disciplined for such speech. The Mississippi Supreme Court voted 5-2 (with two judges not participating) against such discipline, because it concluded that judges’ speech is generally constitutionally protected by the First Amendment against discipline, even when the speech expresses hostility to a particular group.

Justice Graves, though, joined a dissenting opinion written by Justice Carlson, which reasoned that judges’ free speech rights “must be exercised without raising in the minds of reasonable people the belief that judges entertain prejudices which will substantially impair their impartiality.” He would therefore have allowed disciplining judges for such anti-gay speech.

2. The 2008 case is Mississippi Commission on Judicial Performance v. Boland. When Judge Boland was participating in a National Drug Court Institute training conference session, she apparently threw a tantrum in which she was rude to many people, but also said, “you African-Americans — all you African-Americans can go to hell,” and “African-Americans in Hinds County [the county in which she was serving] can go to hell for all I care.”

The Commission on Judicial Performance likewise argued that this speech violated various judicial obligations, including the judge’s obligation to promote public confidence in the impartiality of the judiciary. The Mississippi Supreme Court majority opinion (which got the votes of five out of the six Justices who participated) concluded that most of Judge Boland’s rude comments “do not rise to sanctionable offenses, as they were an expression of her personal opinion,” but that “Judge Boland’s comment concerning African-Americans in Hinds County” was sanctionable misconduct.

The majority opinion distinguished the 2004 Wilkerson case on the grounds that “Judge Boland was acting in her capacity as a justice court judge, seeking certification for a drug court for Hinds County, when she made her statement to a break-out group at the conference. The nature of her comment was an insult to individuals in the community in which she worked as a justice court judge. Her comment was not an expression of political or religious speech as in Wilkerson …. Since Judge Boland’s comment was not made within the content, form or context of a matter of legitimate public concern, no further analysis is necessary by this Court.”

Judge Graves did not join the majority opinion, but instead joined “in part” Justice Carlson’s concurring opinion. That concurrence said, “While I fully concur in today’s majority opinion, I write separately to briefly state that in addition to the reasons set forth by the majority to conclude that Issue II has no merit, I would also rely on the reasoning set forth in the dissent in Mississippi Commission on Judicial Performance v. Wilkerson (Carlson, J., dissenting, joined by Graves, J.).” Justice Carlson’s opinion thus consisted of (1) a full concurrence in the majority’s opinion and (2) a statement that he was continuing to adhere to his Wilkerson dissent. Justice Graves declined to join the majority’s opinion. Therefore, it seems that Justice Graves’s joining Justice Carlson’s “in part” must mean that Justice Graves was simply endorsing Justice Carlson’s conclusion 2: That the Wilkerson dissent was right, and should be adhered to. So far, Justice Graves seemed to be charting a consistent course.

3. The 2009 case is Mississippi Commission on Judicial Performance v. Osborne. While campaigning for reelection, Judge Osborne “spoke before the Greenwood Voters League, a predominantly African-American political organization.” At that talk, he allegedly said — according to a newspaper account — “White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.” Judge Osborne denied making this statement.

The Commission concluded that he did make the statement (a conclusion the Mississippi Supreme Court apparently accepted), and that his statement — among other things — undermined the public confidence in the integrity, propriety, and impartiality of the judiciary. The Mississippi Supreme Court, by a 6-3 vote, held that Judge Osborne should be disciplined for his speech, and that the speech was constitutionally unprotected. The majority opinion (by Justice Carlson, who wrote the 2004 Wilkerson dissent) distinguished Wilkerson on the grounds that “Judge Osborne’s commentary on Caucasian officials and their African-American appointees in his jurisdiction is not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity.”

But Justice Graves joined an opinion that dissented on this issue. That opinion argued — relying on Wilkerson — that Osborne’s speech was indeed constitutionally protected. (Justice Graves also partly joined another dissenting opinion that reached the same conclusion.)

* * *

It seems to me that there are good arguments in favor of reading the First Amendment as generally protecting against judicial discipline most speech by judges, even when the speech expresses hostility to some class of litigants and thus makes such litigants reasonably fear that the judge will be biased against them. The majority in Wilkerson expressed these arguments well, and the arguments support votes to protect the speech in Wilkerson and Osborne (which is in fact how one of Justice Graves’ colleagues, Justice Dickinson, voted).

There are also good arguments in favor of reading the First Amendment as not protecting such speech against judicial discipline, because the speech undermines the ability of judges — who are government employees — to effectively fulfill their duties. The dissent in Wilkerson expressed these arguments well, and they support Justice Carlson’s votes not to protect the speech in Wilkerson and Osborne.

There are also good arguments for treating the First Amendment as not protecting such speech when a judge is on the job (even on the job outside the courtroom), even if the speech is protected when the judge is off the job. This is why even people who support the Wilkerson result could reasonably vote to sanction the judge in Boland.

It is not clear to me, though, how one could reasonably conclude that the Wilkerson statements expressing hostility to gays are constitutionally protected against judicial discipline, but the Osborne statements expressing hostility to whites are constitutionally unprotected. The Osborne majority’s argument that Judge Osborne’s statements were “not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity” strikes me as quite unpersuasive: Judge Osborne’s statements, like Judge Wilkerson’s, were expression of hostility to a group as an argument for a particular form of political action (whether opposition to domestic partnership laws [Wilkerson] or black solidarity and hostility to white political elites and what the speaker see as their black lackeys [Osborne]). So it seems to me that the votes of two of Justice Graves’ colleagues — Justices Waller and Randolph — to protect the speech in Wilkerson but not in Osborne are hard to defend.

But likewise I can’t see how one could soundly conclude — as Justice Graves did — that the Wilkerson hostile-to-gays statements are constitutionally unprotected but the Osborne hostile-to-whites statements are constitutionally protected. Both statements expressed views on political topics. Both statements undermined the public’s confidence in the judge’s impartiality, by making litigants who belong to a particular group reasonably fear that they won’t be treated fairly by the judge. Gay and lesbian litigants could worry that Judge Wilkerson would conclude that they are mentally ill. White litigants could worry that Judge Osborne would conclude that they are racist and manipulative.

Of course, a judge could dissent in one case (such as Wilkerson) but then accept it as a binding precedent and apply it. But this is why the Boland case is important: Justice Graves went out of his way in Boland (2008) to stress that he continued to adhere to his views from Wilkerson (2004). Nor did he say anything in Osborne (2009) to suggest that some time between 2008 and 2009 he decided to generally adopt the views of the Wilkerson majority after all.

Unfortunately, Justice Graves did not offer any explanation for his different conclusions about the hostile-to-gays speech and the hostile-to-whites speech. Nor did her offer any explanation for the different approaches that the opinions he joined used in those cases.

The Wilkerson dissent, which Justice Graves joined, treated judges’ speech as subject to the same Pickering test that is applicable to government employees, and that is less protective than the test applied when the government is regulating nonemployee speech. [UPDATE: That dissent also mentioned the more protective Republican Party v. White test, but began by citing the Pickering test, apparently taking the view that Pickering was the key rule here.] The dissent said, “Because I would find that this speech is not protected because it does not meet the requirements of the two-prong test set out in Pickering v. Board of Educ., I would sanction the judge for his letter to the editor and his statements made to the press.”

But the Osborne dissent, which Justice Graves joined, criticized the Osborne majority’s reliance on that very Pickering test. The dissent said, “With the greatest respect for my esteemed colleagues in the majority, I find it curious that the majority virtually ignores [Republican Party v. White] (recognized as the controlling authority on the issue of restricting a judicial candidate’s speech), and then proceeds to ignore its holding; relying instead on Pickering v. Board of Education, a case decided forty years ago which involves a school teacher, not a judicial candidate.”

Perhaps Republican Party v. White, which applies to judicial candidate speech the highly speech-protective “strict scrutiny” test is the right test for speech by sitting judges. Perhaps Pickering v. Board of Education, which applies to government employees a much less speech-protective balancing test is the right test for speech by sitting judges. But I saw no explanation from Justice Graves, or from the opinions he joined, of why Pickering should have been applied as to the hostile-to-gays speech in Wilkerson but not to the hostile-to-whites speech in Osborne.

As I mentioned, perhaps there is a good explanation for Justice Graves’ conclusions in these cases. But it would be good, I think, if the Senators asked Justice Graves what that explanation might be.

UPDATE: Some readers suggest that Judge Wilkerson’s speech was less constitutionally protected than Judge Osborne’s because Osborne’s speech was part of a political campaign and Wilkerson’s wasn’t. But the Supreme Court has never held that speech on political, social, or scientific issues — such as domestic partnership laws, or the moral or psychological status of homosexuality — is any less protected than speech about whom one should elect, or about how voters should behave.

And that of course makes sense even if one sees the First Amendment as chiefly about democratic self-government, since speech about political, social, or scientific matters outside political campaigns may well change people’s minds in ways that do affect future campaigns. Few people, I would hope, would consider that the posts on this blog are less protected than campaign speeches, even though our posts are generally not related directly to campaigns.

But of course if Justice Graves disagrees, I’d be happy to hear his explanation, and I hope the Senators ask him to give such an explanation (and to defend it, if they find it to be inconsistent with First Amendment law).

Some other readers argued that Judge Wilkerson’s statements were more offensive, or hostile to gays, than Judge Osborne’s statement was to whites. But recall that the premise of allowing restrictions on this sort of judicial speech is not that especially evil speech deserves punishment, or even that especially offensive speech deserves punishment. Rather, the premise is that some such judicial speech might lead litigants to question the judge’s impartiality, and to worry that the judge will be biased against them in future cases.

And on this score, whites’ worry that the judge will view you as racist and manipulative (the worry that would likely be caused by Judge Osborne’s statements) strikes me as not that different from gays’ worry that the judge will view you as mentally ill (the worry that would likely be caused by Judge Wilkerson’s statements). Both are more than sufficient to make one think that the judge might not credit one’s testimony, or make various discretionary judgment calls (for instance, at sentencing) against one.