MSBA POSITION STATEMENT
REGARDING EXERCISE OF FREE SPEECH BY
Approved by the Assembly – September 17, 2004
On June 27, 2002, the United States Supreme Court issued its decision in Republican Party of Minnesota v. White. The Supreme Court held unconstitutional a provision in the Minnesota Code of Judicial Conduct that prohibited a candidate for a judicial office from announcing her or his views on disputed legal or political issues. Simply stated, the Court found that such prohibition violated the free speech clause of the First Amendment.
Why had Minnesota enacted this provision? Why does the Minnesota State Bar Association (MSBA) still believe that it is appropriate to limit some speech by judicial candidates?
The MSBA recognizes that judicial candidates enjoy the same right to free speech as does a candidate for any other office. However, judges occupy a unique position in our society, a society governed not by force, but by the "rule of law." Laws are enacted by the majority, but their interpretation and application rests with an independent and impartial judiciary. If you have ever looked at the statue of the Goddess of Justice, she is blindfolded to emphasize this very hallmark of our Courts - the just application of the law regardless of the personal biases of those sitting in judgment. This rule of law commands allegiance from society only if it commands respect, and it commands respect only if it is administered openly, with independence, integrity and impartiality. Thus, judicial candidates, while free to speak, should speak in a manner befitting the attributes of independence, integrity and impartiality that we expect of their office.
In 1883 at his inaugural address, the first president of the Minnesota State Bar Association, Gordon Cole, described the legal profession as containing, among other attributes, "the most heroic defenders of human liberty which the world in any age has provided." As the largest organization of attorneys defending your individual liberties in this State, we urge you to require that any judicial candidates you support exercise their right of free speech responsibly, by considering whether their speech is consistent with the core purpose of the office sought. The core features of our judiciary are independence, integrity and impartiality.
A candidate for judicial office should make no pledges or promises regarding his or her conduct in office, other than to faithfully and impartially perform the required duties. A candidate should not announce his or her views on disputed legal or political issues, nor by words or conduct give any indication of personal bias or prejudice. A candidate should not misrepresent his or her identity, qualifications, or present position, nor those of an opponent.
Exercise your political power and VOTE - and when you do vote, make sure the judicial candidate you support exemplifies those three hallmarks of justice: independence, integrity and impartiality.