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What Cancel Culture Has In Common With Medieval Outlawry

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Cancel culture has often been compared to Sen. Joseph McCarthy’s (R–Wisc.) hunt for communists in the 1950s. That’s not a bad parallel, so far as it goes. But I think a more useful analog is found in more distant history: Cancellation is remarkably similar in spirit to the outlawry of medieval England.

If Robin Hood and his men were as merry as is widely reported and secure in their Sherwood haunts, they were the exception among outlaws. To be made an outlaw was, quite literally, to be put outside the law—which is to say, to lose its protection of your life.

That’s not all the outlaw lost. “Outlawry required forfeiture of goods to the king and liability to be killed with impunity,” explains historian Melissa Sartore in Outlawry, Governance, and Law in Medieval England. “An outlaw was stripped of any property and was essentially a ‘friendless’ and ‘lawless’ man. He had no more rights than a hunted animal.” An outlaw could not use his home, perform his work, or see his family without the risk of violent death.

Outlawry was a favored punishment in a justice system with much less information and power than ours. It was frequently assigned by justices in eyre, who were judges traveling a circuit and holding court in various villages as they went. Because these courts weren’t continuously in session and rural communities’ ability to jail people was limited, it wasn’t uncommon for those accused of serious crimes to hide or run when a justice arrived.

“The court’s response to the absconding felon was to proclaim him an outlaw,” writes Susan Stewart in Outlaws in Medieval and Early Modern England. If he did not appear at one of five subsequent court sessions to which he was summoned, the outlaw’s status was confirmed and publicized along with his alleged guilt. (Kings could also outlaw people for treason, and abuse of the royal outlaw power is addressed in the Magna Carta.)

Outlawry could be undone by royal pardon or demonstration of innocence, but most outlaws didn’t wait around for that slim possibility of restoration to normal life. They typically fled, Stewart says, believing “their safest route was to escape to the depths of the forest, and then possibly to emerge at some later date to a vill or better still a town where their face and history were unknown.”

Outlawry fell out of use as imprisonment became more widely practiced. Though a few belated writs of outlawry (or its close cousin, exile) were issued in the United Kingdom as recently as the 19th century, by the time it was officially abolished in 1938, contemporary commentary described the shift as “sweep[ing] away some legal deadwood.” In cancel culture, however, we find a sort of outlawry revived.

Cancel culture is slippery in the taxonomist’s hands, but I think something like columnist Ross Douthat’s definition is about right: “Cancellation, properly understood, refers to an attack on someone’s employment and reputation by a determined collective of critics, based on an opinion or an action that is alleged to be disgraceful and disqualifying.”

This description highlights the differences of function between medieval outlawry and cancel culture today: Outlawry was a formal, legal punishment backed by the threat of violence and usually intended to punish people accused of felony crimes like murder, arson, or conspiracy. Cancel culture has no such legal force. It’s a movement of social censure, and in its quintessential cases—e.g. Justine Sacco or, more recently, David Shor or the woman from The Washington Post Halloween party story—there’s no criminal allegation or, many times, even a lean outside the Overton Window. (The “Central Park Karen,” somewhat unusually among high-profile cancellation stories, is being prosecuted.)

Beyond these distinctions, however, outlawry and cancel culture have much in common: They grow out of the same human impulse of ostracism, the desire to exclude offenders from “respectable” society. They give the broader community permission to attack their targets, whether with physical violence (as in outlawry) or via verbal abuse, doxxing, or threats (as in cancel culture). They oust offenders from their social class (today, typically the professional-managerial class) and deprive them of their normal means of livelihood.

That last similarity is what first led me to make this comparison. “[Racist p]eople who go to college end up becoming racist lawyers and doctors. I don’t want people like that to keep getting jobs,” a teenager from Long Island recently told The New York Times in defense of her operation of a call-out account on Instagram. “Many students believe the only consequence their peers will take seriously is having their college admissions letter rescinded,” the Times report says, quoting a second teenager similarly eager to stop future “racist lawyers or doctors” from “advancing.” Ending targets’ professional lives (here, before they begin) is the feature, not a bug.

But there’s one more important difference between cancel culture and the outlawry of yore: As Douthat notes, “under the rule of the internet there’s no leaving the village” or running to the forest deep. 

Cancel culture normally won’t kill you—though stories like that of Geoffrey Corbis or Wilson Gavin should caution us against dismissing that risk too lightly—but it can certainly kill your career. It may be possible to change your name and start a new life, but this is no longer as simple as popping up in some unfamiliar hamlet to ply your trade anew. Our modern writ of outlawry is always just a Google away.

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How Have Judges Responded To The Press?

I recently criticized a Ninth Circuit judge who corrected a press report in a judicial decision. In effect, her opinion was a letter to the editor. She would have been better suited to simply write a letter to the newspaper, in her private capacity, seeking a correction. Instead, she chose to do so in the federal reporter.

I was reminded of the Case of the Speluncean Explorers. One of the judges, Justice Keen, includes in his opinion a personal plea to the Chief Executive seeking clemency for the explorers. Another judge responds, “I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers’ expense.”

There is some precedent for federal judges to defend their decisions in the press. In 1819, Chief Justice Marshall wrote pseudonymous editorials after McCulloch v. Maryland. And in 1968, Justice Stewart wrote a letter to the editor of the WSJ after Jones v. Alfred H. Mayer Company.

McCulloch v. Maryland

McCulloch v. Maryland (1819) proved to be very unpopular. Critics charged that Marshall had read the Necessary and Proper Clause as to give Congress boundless authority. In response, Chief Justice Marshall published two essays in the Philadelphia Union and nine essays in the Alexandria Gazette.  The latter essays responded to a particularly vituperative criticism authored by Virginia Supreme Court Justice Spencer Roane, who used the pseudonym “Hampden.” Specifically, Marshall rejected the notion that McCulloch gave Congress an unlimited power. Here is an excerpt, which Randy and I include in our casebook:

I say, without fear of contradiction, that the general principles maintained by the supreme court are, that the constitution may be construed as if the clause which has been so much discussed, had been entirely omitted. That the powers of congress are expressed in terms which, without its aid, enable and require the legislature to execute them, and of course, to take means for their execution. That the choice of these means devolve on the legislature, whose right, and whose duty it is, to adopt those which are most advantageous to the people, provided they be within the limits of the constitution. Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of a given power.

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, “should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.”

Modern defenders of federal power have ignored some of the important, limiting langauge from McCulloch. For example, the quoted sentence emphasized above. Randy and I think that Marshall’s defense of McCulloch is useful to understand the scope of that decision.

Jones v. Alfred H. Mayer Company

In the second case, a Justice defended his decision in a signed letter to the editor.

On June 17, 1968, the Supreme Court decided Jones v. Alfred H. Mayer Company. This case held that 42 U.S.C. 1982 prohibits racial discrimination in the sale of real estate. (Then-Judge Harry Blackmun wrote the panel decision for the Eighth Circuit.) The Court split 7-2. Justice Stewart wrote the majority opinion. Justice Harlan dissented, joined by Justice White. Harlan was especially critical of the majority in light of the recently-enacted Fair Housing Act of 1968. Harlan thought the case should have been DIG’d:

Moreover, the political processes of our own era have, since the date of oral argument in this case, given birth to a civil rights statute embodying “fair housing” provisions  which would, at the end of this year, make available to others, though apparently not to the petitioners themselves, the type of relief which the petitioners now seek. It seems to me that this latter factor so diminishes the public importance of this case that by far the wisest course would be for this Court to refrain from decision and to dismiss the writ as improvidently granted.

The case was argued on April 1, and the FHA was signed into law on April 11. Alfred H. Mayer was decided on June 17.

On June 20, the Wall Street Journal published an editorial titled, The Alternate Legislature. The editorial charged that the Court engaged in “judicial legislation,” and for going far beyond the recently-enacted Fair Housing Act. Here is an excerpt from “The Alternate Legislature,” Wall Street Journal, June 20, 1968:

The question to ask about the Supreme Court’s sweeping proscription of housing discrimination is not whether the effects of the decision are just and wise, but whether the Court sees any limit to its role as an alternate legislature.

For the Court decision goes far beyond the fair-housing law Congress recently passed. Congress outlawed racial discrimination in housing, but provided some exceptions such as a homeowner selling has house without use of a real estate broker. The Court in effect wiped out such exceptions and also made fair housing effective immediately rather than in the stages Congress had provided. ….

The activist majority on the Court needs to start thinking about the limits of its legislative role. Before the Justices set out to write law on their own, they at least ought to hesitate long enough to give the real legislature first chance.

I found a copy of the editorial in the June 24, 1968 edition of the Congressional Record (p. 13 of this PDF). Senator Robert Byrd of West Virginia entered it into the record; he said “the activist majority of the court needs to start thinking about the limits of its legislative role.”

On July 3, 1968, Potter Stewart–who authored the majority opinion in Jones–wrote a letter to the editor. Here is the response. “Letters to the Editor: Justice Stewart Dissents,” Wall Street Journal, July 3, 1968.

I have read with interest the editorial of June 20, “The Alternate Legislature.” In the case to which you refer, a man was refused the purchase of a house solely because he was a Negro. He eventually brought his case to the Supreme Court, relying upon a law, 42 U.S.C. 1982, written and passed by Congress that says:

“All citizens of the United States shall have the same right, in every state and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

The Supreme Court held (1) that this law means what it says, and (2) that Congress had constitutional power to pass it. You say this made the Court a “legislature.”

What would the Court have been if it had held (1) that the law does not mean what it says, or (2) that Congress did not have the power to pass it?

I add only that Congress, having enacted 42 U.S.C. 1982, remains free to amend it at any time.

Potter Stewart

Associate Justices, U.S. Supreme Court

Stewart’s response is very weak. He insists the majority’s reading of the statute is the only possible meaning of the statute. He repeats the standard line that he was merely interpreting Section 1982, and Congress can change it if it doesn’t like the decision. (His certainty has a Gorsuch vibe to it, doesn’t it?).

Judges should not try to defend their work; let the decision speak for itself.

I am grateful to Professor Steve Wasby who flagged this exchange. He wrote about Stewart’s letter in Stephen L. Wasby, Anthony D’Amato, and Rosemary Metrailer, Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies (Southern Illinois University Press, 1977).

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How Have Judges Responded To The Press?

I recently criticized a Ninth Circuit judge who corrected a press report in a judicial decision. In effect, her opinion was a letter to the editor. She would have been better suited to simply write a letter to the newspaper, in her private capacity, seeking a correction. Instead, she chose to do so in the federal reporter.

I was reminded of the Case of the Speluncean Explorers. One of the judges, Justice Keen, includes in his opinion a personal plea to the Chief Executive seeking clemency for the explorers. Another judge responds, “I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers’ expense.”

There is some precedent for federal judges to defend their decisions in the press. In 1819, Chief Justice Marshall wrote pseudonymous editorials after McCulloch v. Maryland. And in 1968, Justice Stewart wrote a letter to the editor of the WSJ after Jones v. Alfred H. Mayer Company.

McCulloch v. Maryland

McCulloch v. Maryland (1819) proved to be very unpopular. Critics charged that Marshall had read the Necessary and Proper Clause as to give Congress boundless authority. In response, Chief Justice Marshall published two essays in the Philadelphia Union and nine essays in the Alexandria Gazette.  The latter essays responded to a particularly vituperative criticism authored by Virginia Supreme Court Justice Spencer Roane, who used the pseudonym “Hampden.” Specifically, Marshall rejected the notion that McCulloch gave Congress an unlimited power. Here is an excerpt, which Randy and I include in our casebook:

I say, without fear of contradiction, that the general principles maintained by the supreme court are, that the constitution may be construed as if the clause which has been so much discussed, had been entirely omitted. That the powers of congress are expressed in terms which, without its aid, enable and require the legislature to execute them, and of course, to take means for their execution. That the choice of these means devolve on the legislature, whose right, and whose duty it is, to adopt those which are most advantageous to the people, provided they be within the limits of the constitution. Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of a given power.

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, “should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.”

Modern defenders of federal power have ignored some of the important, limiting langauge from McCulloch. For example, the quoted sentence emphasized above. Randy and I think that Marshall’s defense of McCulloch is useful to understand the scope of that decision.

Jones v. Alfred H. Mayer Company

In the second case, a Justice defended his decision in a signed letter to the editor.

On June 17, 1968, the Supreme Court decided Jones v. Alfred H. Mayer Company. This case held that 42 U.S.C. 1982 prohibits racial discrimination in the sale of real estate. (Then-Judge Harry Blackmun wrote the panel decision for the Eighth Circuit.) The Court split 7-2. Justice Stewart wrote the majority opinion. Justice Harlan dissented, joined by Justice White. Harlan was especially critical of the majority in light of the recently-enacted Fair Housing Act of 1968. Harlan thought the case should have been DIG’d:

Moreover, the political processes of our own era have, since the date of oral argument in this case, given birth to a civil rights statute embodying “fair housing” provisions  which would, at the end of this year, make available to others, though apparently not to the petitioners themselves, the type of relief which the petitioners now seek. It seems to me that this latter factor so diminishes the public importance of this case that by far the wisest course would be for this Court to refrain from decision and to dismiss the writ as improvidently granted.

The case was argued on April 1, and the FHA was signed into law on April 11. Alfred H. Mayer was decided on June 17.

On June 20, the Wall Street Journal published an editorial titled, The Alternate Legislature. The editorial charged that the Court engaged in “judicial legislation,” and for going far beyond the recently-enacted Fair Housing Act. Here is an excerpt from “The Alternate Legislature,” Wall Street Journal, June 20, 1968:

The question to ask about the Supreme Court’s sweeping proscription of housing discrimination is not whether the effects of the decision are just and wise, but whether the Court sees any limit to its role as an alternate legislature.

For the Court decision goes far beyond the fair-housing law Congress recently passed. Congress outlawed racial discrimination in housing, but provided some exceptions such as a homeowner selling has house without use of a real estate broker. The Court in effect wiped out such exceptions and also made fair housing effective immediately rather than in the stages Congress had provided. ….

The activist majority on the Court needs to start thinking about the limits of its legislative role. Before the Justices set out to write law on their own, they at least ought to hesitate long enough to give the real legislature first chance.

I found a copy of the editorial in the June 24, 1968 edition of the Congressional Record (p. 13 of this PDF). Senator Robert Byrd of West Virginia entered it into the record; he said “the activist majority of the court needs to start thinking about the limits of its legislative role.”

On July 3, 1968, Potter Stewart–who authored the majority opinion in Jones–wrote a letter to the editor. Here is the response. “Letters to the Editor: Justice Stewart Dissents,” Wall Street Journal, July 3, 1968.

I have read with interest the editorial of June 20, “The Alternate Legislature.” In the case to which you refer, a man was refused the purchase of a house solely because he was a Negro. He eventually brought his case to the Supreme Court, relying upon a law, 42 U.S.C. 1982, written and passed by Congress that says:

“All citizens of the United States shall have the same right, in every state and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

The Supreme Court held (1) that this law means what it says, and (2) that Congress had constitutional power to pass it. You say this made the Court a “legislature.”

What would the Court have been if it had held (1) that the law does not mean what it says, or (2) that Congress did not have the power to pass it?

I add only that Congress, having enacted 42 U.S.C. 1982, remains free to amend it at any time.

Potter Stewart

Associate Justices, U.S. Supreme Court

Stewart’s response is very weak. He insists the majority’s reading of the statute is the only possible meaning of the statute. He repeats the standard line that he was merely interpreting Section 1982, and Congress can change it if it doesn’t like the decision. (His certainty has a Gorsuch vibe to it, doesn’t it?).

Judges should not try to defend their work; let the decision speak for itself.

I am grateful to Professor Steve Wasby who flagged this exchange. He wrote about Stewart’s letter in Stephen L. Wasby, Anthony D’Amato, and Rosemary Metrailer, Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies (Southern Illinois University Press, 1977).

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Brickbat: Terrorizing 12-Year-Olds with the Utmost Professionalism

bbgun_1161x653

Commander Kyle Gordon, of London’s Metropolitan Police, is defending officers who arrested a 12-year-old boy for playing with a BB gun. The officers, accompanied by police dogs, raided the home of the boy’s family after someone reported seeing a black male with a gun. The gun was a pistol with a blue slider to show it wasn’t a real gun. “The reporting member of the public was right to call us and we would encourage others who see similar weapons to do the same,” Gordon said. “We are committed to bearing down on violence, and we rely on our communities to help us do this.”

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Brickbat: Terrorizing 12-Year-Olds with the Utmost Professionalism

bbgun_1161x653

Commander Kyle Gordon, of London’s Metropolitan Police, is defending officers who arrested a 12-year-old boy for playing with a BB gun. The officers, accompanied by police dogs, raided the home of the boy’s family after someone reported seeing a black male with a gun. The gun was a pistol with a blue slider to show it wasn’t a real gun. “The reporting member of the public was right to call us and we would encourage others who see similar weapons to do the same,” Gordon said. “We are committed to bearing down on violence, and we rely on our communities to help us do this.”

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Poisoned Faces

Our interview this week focuses on section 230 of the Communications Decency Act and features Lauren Willard, counsel to the Attorney General and a moving force behind the well-received Justice Department report on section 230 reform. Among the surprises: Just how strong the case is for FCC rule-making jurisdiction over section 230.

In the news, David Kris and Paul Rosenzweig talk through the fallout from Schrems II, the Court of Justice decision that may yet cut off all data flows across the Atlantic.

Paul and I speculate on the new election interference threat being raised by House Democrats. We also pause to praise the Masterpiece Theatre of intelligence reports on Russian cyber-attacks.

Nick Weaver draws our attention to a remarkable lawsuit against Apple. Actually, it’s not the lawsuit, it’s the conduct by Apple that is remarkable, and not in a good way. Apple gift cards are being used to cash out scams that defraud consumers in the US, and Apple’s position is that, gee, it sucks to be a scam victim but that’s not Apple’s problem, even though Apple is in a position to stop these scams and actually keeps 30% of the proceeds. I point out that Western Union – on better facts than Apple’s– ended up paying hundreds of millions of dollars in an FTC enforcement action—– and still facing harsh criminal sanctions.

Paul and David talk us through the 2021 National Defense Authorization Act, which is shaping up to make a lot of cyber-security law, particularly law recommended by the Cyber Solarium Commission. On one of its recommendations – legislatively creating a White House cyber coordinator – we all end up lukewarm at best.

David analyzes the latest criminal indictment of Chinese hackers, and I try to popularize the concept of crony cyberespionage.

Paul does a post-mortem on the Twitter hack. And speaking only for myself, I can’t wait for Twitter to start charging for subscriptions to the service, for reasons you can probably guess.

David digs into the story that gives this episode its title – an academic study claiming that face recognition systems can be subverted by poisoning the training data with undetectable bits of cloaking data that wreck the AI model behind the system. How long, I wonder, before Facebook and Instagram start a “poisoned for your protection” service on their platforms?

In quick takes, I ask Nick to comment on the claim that US researchers will soon be building an “unhackable” quantum Internet. Remarkably his response is both pithy and printable.

And more!                                                                                                                 

Download the 326th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

 The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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Poisoned Faces

Our interview this week focuses on section 230 of the Communications Decency Act and features Lauren Willard, counsel to the Attorney General and a moving force behind the well-received Justice Department report on section 230 reform. Among the surprises: Just how strong the case is for FCC rule-making jurisdiction over section 230.

In the news, David Kris and Paul Rosenzweig talk through the fallout from Schrems II, the Court of Justice decision that may yet cut off all data flows across the Atlantic.

Paul and I speculate on the new election interference threat being raised by House Democrats. We also pause to praise the Masterpiece Theatre of intelligence reports on Russian cyber-attacks.

Nick Weaver draws our attention to a remarkable lawsuit against Apple. Actually, it’s not the lawsuit, it’s the conduct by Apple that is remarkable, and not in a good way. Apple gift cards are being used to cash out scams that defraud consumers in the US, and Apple’s position is that, gee, it sucks to be a scam victim but that’s not Apple’s problem, even though Apple is in a position to stop these scams and actually keeps 30% of the proceeds. I point out that Western Union – on better facts than Apple’s– ended up paying hundreds of millions of dollars in an FTC enforcement action—– and still facing harsh criminal sanctions.

Paul and David talk us through the 2021 National Defense Authorization Act, which is shaping up to make a lot of cyber-security law, particularly law recommended by the Cyber Solarium Commission. On one of its recommendations – legislatively creating a White House cyber coordinator – we all end up lukewarm at best.

David analyzes the latest criminal indictment of Chinese hackers, and I try to popularize the concept of crony cyberespionage.

Paul does a post-mortem on the Twitter hack. And speaking only for myself, I can’t wait for Twitter to start charging for subscriptions to the service, for reasons you can probably guess.

David digs into the story that gives this episode its title – an academic study claiming that face recognition systems can be subverted by poisoning the training data with undetectable bits of cloaking data that wreck the AI model behind the system. How long, I wonder, before Facebook and Instagram start a “poisoned for your protection” service on their platforms?

In quick takes, I ask Nick to comment on the claim that US researchers will soon be building an “unhackable” quantum Internet. Remarkably his response is both pithy and printable.

And more!                                                                                                                 

Download the 326th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

 The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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May Judges “Participate in Marches, Demonstrations, Vigils, [and] Protests”?

From the Indiana Commission on Judicial Qualifications, Indiana Judicial Ethics Advisory Opinion # 1-20, just posted on Westlaw; recall that Indiana judges, like the judges in most states, run in elections:

In light of recent events, a number of judicial officers have sought advice about whether, consistent with their ethical obligations under the Code of Judicial Conduct, they may attend and participate in marches, demonstrations, vigils, protests, and other public events aimed at addressing various social issues….

When judicial officers seek to speak out publicly by participating in demonstrations, vigils, protests, or marches, two countervailing interests are at play: the First Amendment rights of the judge versus the state’s interest in preserving the independence, integrity, and impartiality of the judiciary. As this Commission recognized in Public Admonition of Letsinger (Ind. 1997):

“Judges are not forbidden from making public comments; in fact, they should be encouraged to engage in temperate and judicious speech on any subject, so long as the speech does not compromise the high ethical standards by which judges, unlike other citizens, are held. Judges do not lose entirely their rights to free speech, but it is well established that the preservation of the integrity and of the public perception of the judiciary justifies certain infringements on a judge’s right to speak out (emphasis added).”

Similarly, preservation of the independence and impartiality of the judiciary equally justifies certain infringements on a judge’s right to speak out publicly….

  • Rule 1.2 requires judges to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary. Comments 4 and 6 to this Rule encourage judges to participate in activities that, among other things, promote access to justice for all and to engage in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice.
  • Rule 1.3 prohibits judges from using the prestige of office to advance the personal interests of the judge or others, or to allow others to do so.
  • Rule 2.10(A) prohibits judges from making public statements that might reasonably be expected to affect the outcome or impair the fairness of a pending or impending matter in any court. Subsection (B) prohibits judges from making pledges, promises, or commitments that are inconsistent with the impartial performance of a judge’s adjudicative duties in relation to cases, controversies, or issues likely to come before the court.
  • Rule 2.11(A)(5) specifically requires judges to disqualify if they have made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in a proceeding or controversy. Further, Rule 2.11(A) generally requires judges to disqualify any time the judge’s impartiality might reasonably be questioned.
  • Rule 3.1 generally permits judges to engage in extrajudicial activities as long as participation: 1) will not interfere with the proper performance of judicial duties; 2) will not lead to frequent disqualification of the judge; 3) would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality; 4) would not appear to a reasonable person to be coercive; and 5) does not involve the use of court premises or resources, except for incidental use.
  • Rule 3.7(A)(4) prohibits judges from being the featured speaker or guest of honor at events sponsored by educational, religious, charitable, fraternal, or civic organizations if the event serves a fundraising purpose.
  • Rule 4.1(A) prohibits judges from engaging in various political activities (i.e., endorsing or opposing candidates for public office) when not in their election cycle….

Political Organizations

Advisory commissions have remarked that judges should not participate in social-issue marches sponsored by or affiliated with a political organization or in marches supporting or opposing a political party or candidate. See Arizona Advisory Opinion 2018-6; New York Advisory Opinion 2017-38. If the primary purpose of the event is aimed at influencing the actions of a political candidate or party—even when the activity is sponsored by a nonpartisan group—the judge should not participate. See, e.g., Massachusetts CJE Opinion 2016-10 (A judge should not participate in the Women’s March on Washington scheduled the day after the presidential inauguration, as the public and media are “likely to focus on the timing of the event and the organizers’ announced desire to ‘send a message’ to the new President on his first day of office”).

Supporting or Protesting Matters in Active or Likely Litigation

Advisory committees also have warned judges about participating in marches or demonstrations about matters currently the subject of litigation (even if the matter is not in the judge’s court) or that are likely to become a subject of litigation before the judge. See New York Advisory Opinion 2017-38 (A judge may not participate, even without speaking, in a local rally, march, or demonstration sponsored by a grassroots organization in opposition to the “”Trump Muslim Ban,” noting that the event clearly “involves great public controversy, which is also the subject of litigation”); see also Arizona Advisory Opinion 2018-6.

Public Events Sponsored by Frequent Litigants or Advocacy Groups

When an event is sponsored or held by an organization that regularly appears before the judge or that holds an advocacy role within the courts, advisory committees have reached contrary results when interpreting Rules 3.1 and 1.2. Some committees have advised against attending, reasoning that attendance at these events may lead to frequent requests for disqualification as “the judge’s presence and participation ‘create[s] an appearance of particular sympathy toward one side in court’ and necessarily cast[s] doubt on the judge’s ability to be impartial.” New York Advisory Opinion 2017-108 (A judge may not participate in a “Call to Service and Compassion Workshop” to honor child abuse victims and survivors hosted by a local child advocacy center); see also New York Advisory Opinions 2010-59 and 2004-91 (advising judges against appearing at candlelight vigils for those affected by domestic violence and on behalf of victims of crime); see also New Jersey Advisory Opinion 2008-1 (Judges may not participate in a candlelight vigil celebrating the one millionth child served by CASA programs across the country).

Other advisory commissions have taken a more permissive approach, advising judges that they may attend public events sponsored by an advocacy group, if the event serves a nonadvocacy purpose and the judge behaves at the event in a manner that does not cast doubt upon the judge’s impartiality. See Washington Advisory Opinion 1996-16 (A judge may attend a “Day of Remembrance” ceremony to honor victims of domestic violence, but should take care that his or her mannerisms, actions, or speech do not cast doubt upon the judge’s impartiality and should not act as an advocate or in any manner that indicates a predisposition as to how he or she might rule in a domestic violence case); Florida Advisory Opinion 1995-41 (A judge may attend a Mothers Against Drunk Driving candlelight vigil because the event merely recognizes the victims of impaired drivers and does not call for changes in the law); Florida Advisory Opinion 1992-34 (A judge may attend ceremonies held by law enforcement agencies to honor officers killed in the line of duty); see also Massachusetts CJE Opinion 2016-06 (A judge may serve as a guest speaker at a Community Family Day event held by a neighborhood civic association even though a large number of law enforcement agencies are sponsors, but commission set forth several cautions “designed to prevent [the judge] from unintentionally conveying to the public any erosion or blurring of the line of demarcation between law enforcement agencies and the judiciary”).

Conduct Highlighting Judge

Advisory commissions also have warned judges to consider what role the judge is expected to play at an event. The Arizona Advisory Committee cautioned that, “Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.” Arizona Advisory Opinion 2018-6.

A recent advisory opinion issued from Connecticut highlights concerns when a judge is asked to take a featured role in a protest or demonstration. Connecticut Informal Opinion 2020-3. A judicial official from Connecticut sought advice on whether he could participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting the marchers at the steps of the Connecticut Supreme Court and reading Article First, Sec. 2 of the Connecticut Constitution (which sets forth that all political power is inherent in the people) if he is not introduced at the event, does not identify himself by name or title or wear court- affiliated attire, does not permit his name or title to be used in any advertising, does not interpret the constitutional provision he is reading, and does not speak with the media. The invitation to the event indicated that protest signs in support of the cause are welcome, supporters would be distributing “We Can’t Breathe” buttons and voter registrations cards at the event, and marchers are strongly urged to wear all black with black sunglasses to lend support to the message.

The Connecticut Advisory Committee opined that, given the specific facts, the judicial official should not participate in the event because: 1) the judicial official’s participation would unnecessarily insert him into a public controversy in violation of Rule 1.2; 2) although the judicial official’s name and title would not be used, his identity likely could be ascertained since he would be the only male supporter speaking on the steps of the Connecticut Supreme Court and, thus, could undermine the public’s confidence in the independence and impartiality of the judiciary; and 3) the judicial official might be called upon to rule on claims of police brutality or abuse, and his participation in the event might appear to reasonable persons to undermine his independence and impartiality in violation of Rule 3.1.

Injudicious Remarks

Even when judges have spoken on appropriate matters of public concern, advisory commissions have cautioned judges to be circumspect in their remarks; and judicial conduct commissions have pursued discipline when judges have made injudicious remarks that undermine the independence, integrity, and impartiality of the judiciary. See Public Admonition of Letsinger (Ind. 1997) (judge admonished for intemperate remarks about investigation into missing probation funds); Mississippi Commission on Judicial Performance v. Wilkerson (Miss. 2004) (judge disciplined for anti- homosexual remarks he made to newspaper when commenting on states that had extended right to sue for homosexual partners); Disciplinary Counsel v. Ferrari (Ohio 1999) (judge disciplined for derogatory remarks made in newspaper about juvenile detention center staff and judicial officials); In re Conduct of Schenck (Oregon 1994) (judge disciplined for writing letters to newspaper criticizing district attorney); But cf. In re Inquiry Concerning Gridley (Fla. 1982) (judge’s letters to editor expressing views against capital punishment protected by First Amendment).

Recommendations for Judges Who Wish to Participate in Public Events Aimed at Addressing Social Issues …

[T]he Indiana Commission on Judicial Qualifications is of the opinion that, pursuant to Rule 3.1 of the Code of Judicial Conduct, a judge may participate in many public events aimed at addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary. When deciding whether attendance and participation at a particular event may impair the judge’s independence, integrity, or impartiality, the Commission notes that the determination often will be fact sensitive and encourages judges to consult with Commission staff to evaluate the wisdom of participating in certain events. Nonetheless, there are several guiding principles/factors that a judge should consider in his/her evaluation:

  • The title of the event—The more provocative or advocacy-oriented the title of the event is in promotional materials, the more likely the judge should abstain. See Rules 1.2, 3.1(C).
  • The purpose of the event—If the event primarily serves an advocacy or political purpose or is a fundraiser (and the judge is a featured speaker), the judge should not participate due to concerns regarding frequent subsequent disqualification requests of the judge and concerns about the appearance of partiality. See Rules 1.2, 3.1(B), (C), 3.7(A)(4), and 4.1(A). Also, if the event touches upon a pending matter currently before the judge, then the judge should not attend (i.e., the protest/march is aimed at raising awareness about police practices, and the judge currently has a civil lawsuit on his/her docket regarding the city’s response to excessive force incidents). See Rule 2.10(A), (B).
  • The organizers and sponsors of the event—If the event primarily is sponsored or affiliated with a political party or candidate or seeks to influence the actions of a particular political official, the judge should not participate due to impartiality and independence concerns. See Rule 4.1(A). If the event is held by an advocacy group or a frequent litigant in the judge’s court, the judge should carefully weigh the purpose of the event. If it is for a nonadvocacy purpose and the judge can participate in a manner that will not raise public concern about the judge’s impartiality, then the judge may participate. See Rule 3.1. For instance, a judge could attend a march raising awareness about issues with the death penalty (as long as the judge maintains his/her ability to follow the law), but posing in a coffin for the media as part of an anti-death penalty protest1 would raise concerns about the judge’s ability to remain impartial in future cases. See Rules 1.2, 2.10(A), 2.11(A)(5), and 3.1(C).
  • The details about the event—If the event is being held in a time, place, or manner where participants likely will violate the law (i.e., by not following imposed curfews or by becoming violent), then a judge should not participate. See Rule 1.2. For instance, if there has been a past history of violent eruptions at an event, a judge would be well advised to avoid attendance.
  • The potential role of the judge at the event—If a judge is requested to be afeatured speaker or guest of honor at an event, the judge should carefully review all invitational materials to determine whether his/her featured presence may cause frequent disqualification or might subject the judge to concerns that the judge is improperly using the prestige of judicial office to further the organization’s goals. See Rules 1.3, 3.1(C). If the matter does not specifically involve matters concerning the law, the legal system, or the administration of justice, the judge should not allow his/her legal title to be referenced during the event and should not wear any clothing identifying him/her with the judiciary.

If a judge determines after reviewing invitational/promotional materials that attendance at the event will not impair the independence, integrity, or impartiality of the judiciary, the judge should still consider the following while at the event:

  • Change in circumstances—If circumstances change at the event that cause the judge to believe the judge’s integrity or the impartiality of the judiciary might later be questioned (i.e., the majority of protesters are carrying signs supporting/opposing a political candidate), then the judge should be prepared to immediately leave the event.
  • Temperate and judicious conduct—The judge should be careful to act at all times at the event in a manner that is temperate and judicious.

Conclusion

A judge may participate in public events aimed at addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary. Judges are encouraged to consult with Commission staff to seek guidance on the wisdom of attending and participating in specific events.

 

 

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