More on “Speech Hostile to Gays Constitutionally Unprotected, Speech Hostile to Whites Constitutionally Protected?”

I blogged last week about this topic, and I thought I’d briefly follow up. To summarize: 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 tomorrow, and I wanted to urge the Committee to ask him a question about one set of cases that he dealt with on the Mississippi Supreme Court.

In 2004, 2008, and 2009, the Mississippi Supreme Court considered whether the First Amendment protected judges against discipline for their out-of-court statements that express hostility to particular groups. In the 2004 case (Wilkerson), 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 the 2008 case (Boland), 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 the 2009 case (Osborne), 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.” (I go into much more detail on the cases in the original post.)

This particular mix of results strikes me as hard to defend under the First Amendment. But of course I might 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 noted at the outset, 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.)

In any case, in this post I wanted to respond to some defenses of Justice Graves’ votes that I’ve heard.

1. Some readers suggest that Judge Wilkerson’s speech was less constitutionally protected than Judge Osborne’s because Osborne’s speech was part of an election campaign and Wilkerson’s wasn’t; see also this post at Will Bardwell’s blog.

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. Many of the Court’s most speech-protective opinions have come outside the context of election campaigns; consider, for instance, New York Times v. Sullivan, Hustler v. Falwell, Cohen v. California, Reno v. ACLU, United States v. Stevens, and more. If anything the Court has, quite controversially, allowed some more restriction on election-related speech than on other speech, in the interest of preventing corruption, intimidation, and the like; see, for instance, Burson v. Freeman, the coordinated expenditure portion of Buckley v. Valeo, and Austin v. Michigan Chamber of Commerce, which had not yet been reversed as of the time of those opinions. This is not to endorse those three cases, but simply to point out that First Amendment law does not support the proposition that speech that’s part of an election campaign is more protected than speech that’s part of public debate on social issues.

And of course fully protecting speech that’s not part of an election campaign — at least as much as speech that is part of an election campaign — 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. And certainly speech about homosexuality, whether it should be treated as a mental illness, and whether domestic partner benefit laws are a good idea is indeed quite relevant to public debates and, indirectly, to political 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).

2. Some other readers argued that Judge Wilkerson’s statements were more offensive, or more 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.

3. Some other readers suggest that perhaps Justice Graves changed his view between 2004 and 2009, and in particular after the 2008 decision in which he seemed to reaffirm his adherence to the 2004 dissent that he joined. As I mentioned in the original post, that’s possible, though it seems odd given his position in 2008, and the lack of any explanation in 2009 that he was changing his view. But again, if that’s Justice Graves’ view, I’d love to hear it from him, if he is asked about the subject by the Committee.