A peripatetic view of judicial free speech.

• Author: Spargo, Thomas J.
• Position: Issues Facing the Judiciary

From 1974 to 1990, I was Counsel to the New York Republican State Committee. Then, from 1990 on, I represented, among others, people like Steve Forbes, Ross Perot and Tom Golisano, primarily involving election law issues. So I am fairly familiar with the process by which candidates get on the ballot, run their campaigns and, if necessary, do their recounts. That I did for thirty years as a practicing lawyer.

One of the things I also did was to represent judges in their campaigns, and I had the opportunity to handle some First Amendment cases: protecting the political speech rights of individuals and the right to spend money on behalf of political parties. I am privileged and honored to have been a town judge for two years in the Town of Berne, and this has been my third year as a New York State Supreme Court Judge in the Albany area.

First, a disclaimer--I have a case pending against me before the Commission on Judicial Conduct and there is a related proceeding involving me in the Supreme Court of Westchester County. Anything I say today--either directly or in response to any questions--is not intended in any way to reflect upon my personal circumstances or the issues in my case, or to criticize or praise anybody who is associated with those issues. That does not mean we cannot talk about many things in this presentation, but I would like to avoid having to apologize for anything that I might say as it may impact those cases.

By the way, I wanted to pass on that the Honorable Richard (Dick) Wesley, who we did not hear from this morning, is a beacon in the world of legal thinking and is a man of great legal scholarship. He is also a man of great personality, so if you ever have a chance to hear him or see him, make sure you do that.

Getting down to the issue of the First Amendment rights of judges and judicial candidates, I would like just to focus on judicial candidates. It is a hot topic now, after the Supreme Court, two years ago, in Republican Party of Minnesota v. White, (1) basically set aside as unconstitutional a provision in the Minnesota Judicial Conduct Code which prohibited judicial candidates from announcing their position in connection with a judicial campaign. (2) It is my recollection from reading it that the case arose because a gentleman wanted to run for the Supreme Court in the State of Minnesota. In order to do that, he wanted to raise certain issues. So, he sought a declaratory judgment to raise these issues, which seemed to be prohibited from campaign discussion under the Minnesota Code of Judicial Conduct by which he was bound. He feared that he might get disbarred without a judicial declaration that he has a First Amendment right to speak and address these issues. I believe that is how the case arose and eventually went to the Supreme Court. The Supreme Court, by a five to four vote, for the first time recharted the direction of judicial free speech. The Supreme Court issued a fairly...