The Rules

Like all citizens, judges have a First Amendment right of free speech. But that right is tempered by the ethical restrictions that come with judicial office — restrictions that often prevent them from speaking freely about pending cases. This guide presents the text of the rules that bind most judges and summarizes the most significant interpretative decisions.

The Code of Conduct
for United States Judges

Federal judges are subject to Canon 3A(6) of the Code of Conduct for United States Judges, which provides:

“A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge’s direction and control. This proscription does not extend to public statements made in the course of the judge’s official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.”

The most famous case involving Canon 3A(6) is United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir., 2001), discussed on page 4. But other federal courts have offered key interpretations as well.

In re Boston’s Children First, 244 F.3d 164 (1st Cir. 2001). After U.S. District Court Judge Nancy Gertner told the Boston Herald that a school discrimination case pending in her courtroom was “more complex” than a similar lawsuit before another judge, she was disqualified by a federal court of appeals in Boston. The appeals court said there was no evidence that Gertner was biased, and acknowledged that she gave the interview to refute inaccurate statements made by an attorney. But the court found that her comparison of the complexity of two cases was a comment “on the merits,” in violation of Canon 3A(6).

In re International Business Machines Corp., 45 F.3d 641 (2d Cir. 1995). In an antitrust case that dwarfed even Microsoft in complexity and scale, IBM forced the recusal of U.S. District Court Judge David N. Edelstein, who had presided over the massive litigation for a staggering 43 years. The U.S. Court of Appeals in New York cited Edelstein’s 1982 interviews with The New York Times and The Wall Street Journal, in which he sharply criticized the Justice Departments’ handling of a related case against IBM.

United States v. Cooley, 1 F.3d 985 (10th Cir. 1991). A federal judge in Wichita, Kan., was disqualified for telling the TV program “Nightline” that anti-abortion protestors were “breaking the law” by blocking access to a clinic in violation of the judge’s order. The appeals court found that both the substance of U.S. District Court Judge Patrick Kelly’s comments and his choice of forum conveyed “an uncommon interest and degree of personal involvement in the subject matter.” In an unusually strong remedy, the appeals court ordered new trials for each of the protestors.

In re Barry, 946 F.2d 913 (D.C. Cir. 1991). Nearly a decade before his trouble on the Microsoft case, Judge Thomas Penfield Jackson stirred controversy by criticizing the jury in the drug trial of D.C. Mayor Marion Barry, over which Jackson had presided. Speaking at Harvard Law School, Jackson said he had never seen a stronger government case and scolded jurors for refusing to apply the law. A divided panel of the U.S. Court of Appeals in Washington, D.C., refused to remove Jackson, saying that while his comments “may be” a violation of Canon 3(A)(6), they did not meet statutory criteria for recusal. On remand, Jackson sentenced Barry to six months in prison and a $5,000 fine.

The ABA Model Code
of Judicial Conduct

Canon 3B(9) of the American Bar Association’s Model Code of Judicial Conduct, which has been adopted in 49 of 50 states and the District of Columbia, provides:

“A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. . . . This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.”

In 2003, the ABA amended the code to impose further restrictions on judicial speech in the contexts of making campaign promises, criticizing juries, and disclosing nonpublic information. But most of the decisions concern Canon 3B(9).

In re Broadbelt, 683 A.2d 543 (N.J. 1996). In a widely cited case, the New Jersey Supreme Court held that Canon 3B(9) applies to proceedings anywhere, not just in the judge’s own courtroom. Thus, a municipal court judge was ordered to stop providing commentary on “Geraldo Live” and other TV programs, even though the cases he discussed had no chance of being decided by him. The case is also notable because the Supreme Court rejected the judge’s claim that his First Amendment rights were violated.

In re Sheffield, 465 So.2d 350 (Ala. 1985). The Alabama Supreme Court upheld a punishment of two months’ suspension without pay for Judge Billy Joe Sheffield of Alabama’s 20th Judicial Circuit, who discussed the merits of a contempt of court proceeding with a newspaper reporter before it took place. The court acknowledged that “not all public discussion by the judiciary of a pending case is an ethical violation,” but said Sheffield crossed the line by saying “the contempt speaks for itself” and suggesting the defendant could be sued for libel.

Illinois Judicial Ethics Committee, Opinion No. 98-10 (April 8, 1998). Facing a question similar to that in Broadbelt, an Illinois judicial ethics committee reached a slightly different conclusion: Judges may appear on TV or radio shows to discuss legal issues, as long as they don’t comment on the merits of any individual proceeding.

New York Advisory Committee on Judicial Ethics, Opinion No. 96-145 (Dec. 12, 1996). A New York judicial ethics committee barred a judge, whose name was not revealed, from sending a letter to a newspaper in response to an editorial critical of the judge’s actions as a county legislator. The committee found that the matters addressed by the letter might be litigated, and could appear before the judge. Moreover, the committee said, the judge’s proposed letter — which would have bluntly criticized the newspaper and various public officials — would undermine the dignity of the judiciary.