Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been.

Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, however, if a court finds the discipline in violation of the First Amendment. Many courts have not even recognized this, and others have been confused about the proper First Amendment analysis to apply.

Because the ethical code restrictions on speech are content-based, they would ordinarily receive strict scrutiny. But the great harm that judges’ unethical speech can pose warrants granting the state greater discretion in the disciplinary process. Specifically, the free speech rights of judges facing discipline for unethical extrajudicial speech should be subject not to strict scrutiny, but to the doctrine applied to public employees in Pickering v. Board of Education. Under Pickering, extrajudicial speech that does not involve a matter of public concern — such as racist or sexually harassing remarks — would not be protected at all. Extrajudicial speech that does involve a matter of public concern would have the court balance the judge’s interest in speaking against the state’s interest in prohibiting the speech. Additionally, a presumption of validity would accompany any ethical code provision that provided notice to judges in advance specifically what they are not to say and why.