The Mississippi Supreme Court just decided a very interesting judicial free speech case. A state judge sent the following letter to a newspaper (and followed it up with comments to a radio station):
Dear Editor:
I got sick on my stomach today as I read the (AP) news story on the Dog attach [sic] on the front page of THE MISSISSIPPI PRESS and had to respond!
AMERICA IS IN TROUBLE!
I never thought that we would see the day when such would be here in AMERICA. The last verse of chapter one of the book of Romans in our HOLY BIBLE is my reason for responding and sounding the alarm to this. You need to know as I know that GOD in Heaven is not pleased with this and I am sounding the alarm that I for one am against it and want our LORD to see and here [sic] me say I am against it.
I am sorry that the California Legislature enacted a law granting gay partners the same right to sue as spouses or family members. Also, that Hawaii and Vermont have enacted such a law too.
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.
I don,t [sic] know but I believe if we vote for folks that are for this we will have to stand in thh [sic] judgement of GOD the same as them.
I am thankful for our Legislators and pray for wisdom for them, on such unbelievable legislation as this.
May GOD bless each one of them in JESUS CHRIST NAME I pray!
Thank you for printing this,
Connie Glen Wilkerson
Bro. Connie C. Wilkerson
The Mississippi Commission on Judicial Performance asked the Mississippi Supreme Court to sanction the judge; the relevant Canon of Judicial Ethics turned out to be “A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Mississippi Supreme Court held 5-2 that sanctioning the judge would violate the First Amendment. A few thoughts:
-
An important question here is whether the First Amendment rule here should be the same as when the government is acting as sovereign, punishing (even criminally) speech by private citizens, or the same as when the government is acting as employer. I think this is not an easy question, but it’s probably the critical one.
-
If the majority is right that the rule should be government-as-sovereign, then I think it’s correct to say that the speech is constitutionally protected. The majority correctly dismissed the argument that there’s a compelling interest in protecting impartiality and the appearance of impartiality:
No credible person could dispute that having impartial judges is a compelling state interest. But “impartiality” is not the same as the “appearance of impartiality.” We find no compelling state interest in requiring a partial judge to keep quiet about his prejudice so that he or she will appear impartial.
Whatever state interest the Commission may find in preventing judges from announcing their private views on gay rights would conflict with, and be outweighed by, the more compelling state interest of providing an impartial court for all litigants, including gays and lesbians. Allowing — that is to say, forcing — judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing that they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.
But I think the Court should have been free to reprimand the judge — not to remove him from office or otherwise take away any privileges, but to formally express its own views that his statement deserves condemnation. The majority seemed to suggest otherwise, but didn’t explain why it couldn’t exercise its own counterspeech as a remedy for the judge’s speech.
-
The dissent had a plausible argument that the judge is a government employee, employed to do a job that his speech has ended up undermining. The judge might, for instance, end up having to recuse himself from cases where homosexuals are parties or even witnesses. At the same time, I’m quite troubled by two arguments by the dissent: “I do not agree that this type of speech — the judge’s personal views regarding all homosexuals — relates to political and social community concerns” (p. 29) and
If the judge now before this Court had done no more than express his views on statutes concerning same-sex partners and legislation regulating their activities or their rights, the analysis could stop here. As earlier mentioned, Canon 4B expressly recognizes the unique value of judges contributing to improvements of the law and the legal system and acknowledges their freedom to speak out in these areas. However, when the judge in today’s case stated that certain individuals in our society were sick and that they all needed to be indiscriminately placed in mental institutions, he crossed over the line!
(pp. 26-27). Here the dissent is wrongly denying that their view would seriously restrict judges’ speech, rather than acknowledging that this is a substantial restriction but concluding that it’s a justified one. To effectively and persuasively defend their “views on statutes concerning same-sex partners and legislation regulating their activities or their rights,” judges would have to explain just why they think same-sex relationships are less worthy than opposite-sex ones — and to do that, they might well need to convey their “views regarding all homosexuals,” which of course do therefore “relate[] to political and social community concerns.” Perhaps the restriction is constitutional despite that; but judges shouldn’t pretend that such a restriction really doesn’t interfere with judges’ ability to express their views concerning the law, or other “political and social community concerns.”
-
Finally, it seems to me that even most reasonable critics of same-sex marriage or of Lawrence v. Texas have to be appalled by the judge’s position. Gays and lesbians should be put in some type of a mental institution? Over five million Americans locked up because of their sexual preference? (Note that his argument couldn’t even be defended on the grounds that it’s a call to restrict conduct rather than just orientation — if homosexuals are mentally ill, they remain mentally ill even if they stop having sex.)
Views like his — plus of course spelling and capitalization like his — end up being the strongest arguments for the pro-gay-rights movement.
Thanks to reader Andy Lowry for the pointer.
UPDATE: Just to make it clear, my point in the second-to-last paragraph — “Views like his . . . end up being the strongest arguments for the pro-gay-rights movement” — is a descriptive one: When people hear stuff like this, they’re much more likely to become hostile to the anti-gay-rights movement, and somewhat more likely to become sympathetic with the gay rights movement. Such a change in attitude may or may not be logically valid, but it is psychologically quite likely. Popular revulsion at people who back position X may often be worth a dozen logical arguments that position X is unsound.
ClaytoN Cramer, who I think took that paragraph as a normative argument, rather than a descriptive one, asks “By this reasoning, the prominent role of homosexuals in spreading AIDS ends up ‘being the strongest argument for’ opposing the gay rights movement.” Sure. My guess is that the association between male homosexuals and AIDS has led quite a few people to a less pro-gay-rights position (though there may be complex effects stemming from the way AIDS may have created some sympathy for homosexuals as well, and may have led them to be better organized politically). Certainly if gay rights activists are seen as reckless about AIDS, for instance by opposing the closure of bathhouses and the like, or more generally by promoting promiscuous sex, this makes people much more likely to become hostile to the pro-gay-rights movement.
This is just human nature: When people see fools, bigots, or lunatics on one side of an issue, they are likely to be alienated from people on that side, and more sympathetic to people on the other side. Right or wrong, that’s reality.
Comments are closed.