The Texas Commission on Judicial Conduct has officially admonished Texas Supreme Court Justice Nathan Hecht for his statements on behalf of his friend Harriet Miers, when she was nominated for the U.S. Supreme Court. Orin comments on this, and questions whether the admonition is quite fair. I might also add an interpretive question: One of the canons that Justice Hecht supposedly violated says, "A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party." Does "candidate" include a Presidential nominee for a nonelective office, or does it only include candidates who are running in an election?

But let me also ask a different question: The Houston Chronicle reports that Justice Hecht plans to appeal the ruling, on the grounds that his comments were protected by the First Amendment. Does it violate the First Amendment, though, for the government to publicly reprimand you for your speech? The government, after all, is contributing something to the marketplace of ideas (though of course backed with its special authority as the government).

Maybe governmental speech is itself protected by the First Amendment, and maybe not; that's a complex and unresolved question. But why should government speech, unconnected to any coercive action (loss of a job, loss of an office, and so on) be treated as a First Amendment violation? May Congress issue ad hoc condemnations of groups and organizations that it finds reprehensible (e.g., the Communist Party, the Nazi Party, etc.)? If so, why can't government agencies issue condemnations of speech that they find violates some rule, even when the speech is immune from criminal punishment or other tangible governmental action?

I've seen some lower court cases that have, without much reflection, treated reprimands based on speech as First Amendment violations. There's also been a bit of back-and-forth on the Court about this at times, though rarely. Still, it seems like an important and unresolved issue.

A commenter to the government speech post reasoned that, "I'd say the threat of a reprimand would have a chilling effect on speech." Sure; but I think that can't be enough to make a reprimand (assuming the reprimand is based on the target's constitutionally protected speech) unconstitutional.

Lots of things may have a chilling effect on speech. Criticism, in particular, often has a chilling effect on the speech that's being criticized; that's often its purpose. One reason we don't say various things -- stupid things, rude things, or even things that we think are right but that we think many others dislike -- is that we fear being criticized for them.

Likewise, government denunciations of particular positions, even without naming names, can have a chilling effect. If the government denounces racism, that may deter racists from speaking. If the University Administration denounces criticism of homosexuality -- or denounces defense of homosexuality -- that may likewise deter professors and students from speaking, even setting aside their fear of more tangible actions. When leading institutions argue that some viewpoint is reprehensible, that surely helps create a climate in which some people will be deterred from expressing that viewpoint.

The question, I think, is whether government criticism of particular people's speech, and in particular the government's assertions that the speech violates some rules, is sufficiently different from the other examples I just gave. I'm not sure what the answer is; but let me offer this hypothetical: Say that a high school student, or for that matter a college student, writes something that's racist, religiously bigoted, or otherwise insulted. Let's assume that the administration may not punish him (especially likely for the university student).

Should the administration be equally barred from publicly condemning him by name, for instance in some e-mail to the students? What if the speech is done by a student organization -- should the administration be barred from publicly condemning the group by name? Should it make a First Amendment difference if the statement were labeled an "official reprimand" as opposed to being an ad-hoc statement?