Without clear direction from the U.S. Supreme Court, the U.S. Court of Appeals for the Third Circuit has decided that judicial opinions enjoy First Amendment protections of free speech.
The appeals court, however, left open related questions, including the extent to which First Amendment rights apply to judges’ actual rulings — as opposed to the explanations and commentary included in the opinions — and the standard to which judges’ speech in other contexts — about cases they’re not presiding over, for example — should be held.
The Third Circuit was definite on the narrow issue of the protection of judges’ speech in the reasoning of their opinions.
"The First Amendment prevents the government from criminally punishing a sitting judge’s speech about one of his pending cases unless it poses a clear and present danger to the administration of justice," wrote Third Circuit Judge D. Brooks Smith on behalf of the three-judge panel in In re Kendall. Also on the panel were Judge D. Michael Fisher and Senior Judge Jane R. Roth.
The Third Circuit reversed the Supreme Court of the Virgin Islands, which had held Virgin Islands Superior Court Judge Leon Kendall, now retired, in criminal contempt for an opinion he issued in a contentious case over which he was presiding involving the death of a police officer.
The initial finding of contempt against Kendall was an outgrowth of a dispute about a plea bargain in the underlying case that spun into bitterness between Kendall and the prosecutor after Kendall tried to enforce the plea bargain.
The prosecutor filed a writ of mandamus with the Supreme Court of the Virgin Islands, which reversed Kendall’s orders to enforce the plea agreement and remanded the case to him.
Kendall later issued a 31-page opinion that included a denunciation of the Supreme Court’s decision to grant the writ of mandamus — saying, among other things, that the Supreme Court’s reasoning lacked merit and made no sense — and recused himself from presiding over the rest of the case because he had become dubious of the prosecutor and no longer believed him, according to the Third Circuit’s opinion.
"The Virgin Islands Supreme Court did not take Kendall’s recalcitrance lying down," Smith said.
The court sought three charges of criminal contempt and assigned a special master to handle the proceedings. Smith likened the relationship between the court and the special master to the one between a district court judge and a magistrate judge — the Supreme Court could either adopt or reject his recommendations.
Ultimately, the special master recommended that Kendall be acquitted of all charges. The Supreme Court disagreed and rejected the recommendation, finding him guilty on all counts.
Kendall asked the Third Circuit to review the case.
"He argues that his judicial opinion is protected by freedom of speech and cannot therefore serve as a basis for criminal contempt," Smith said. "As to that novel question, we hold that the First Amendment protects a sitting judge from being criminally punished for his opinion unless that opinion presents a clear and present danger of prejudicing ongoing proceedings. Kendall’s opinion did not pose such a threat."
Although the U.S. Supreme Court hasn’t spoken on the issue, several other federal and state courts have, Smith said, quoting from a 2011 opinion from the Ninth Circuit in In re Complaint of Judicial Misconduct, which said that a "judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure."
The Third Circuit agreed, holding that a judge’s expression in an opinion would trigger First Amendment review.
The Supreme Court of the Virgin Islands had relied on the government’s authority to discipline attorneys whose speech is substantially likely to prejudice ongoing proceedings, but the Third Circuit held that that power doesn’t translate to the authority to hold a judge in contempt for his speech on a case.
The Supreme Court also likened its ability to punish lower court judges for their speech to the government’s ability to discipline employees for speech related to their official duties and the government’s authority in the military to punish an officer for insubordinate speech.
The Third Circuit wasn’t convinced by either argument.
"These analogies fall flat," Smith said. "As we have already explained, contempt is not discipline: the Virgin Islands Supreme Court acted as sovereign, not as public employer, by criminally punishing Kendall’s speech. And the Virgin Islands Supreme Court’s supervisory capacity over lower-court judges is hardly similar to the government’s capacity as military commander."
In a release from his lawyer, Howard Cooper, Kendall said, "I am pleased by the Third Circuit’s decision. Anyone who is interested in the basic civil rights of all citizens, even in the face of a powerful institution like the Supreme Court of the Virgin Islands, should read this decision. We are fortunate to live in a nation of laws which protect us from an abuse of power even by a court charged with carrying out the law. But for the excellent representation provided to me by my legal counsel, this vindication would not have been possible. I am deeply grateful to my counsel."
Cooper is a partner at the firm of Todd & Weld in Boston.
Samuel Hall Jr. of Hall & Griffith in St. Thomas, Virgin Islands, represented the Virgin Islands government and did not immediately return a phone call seeking comment.
(Copies of the 58-page opinion in In re Kendall, PICS No. 13-0793, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •