The Constitutionality and Consequences of Restrictions on Campaign Speech by Candidates for Judicial Office

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UCLA Law Review


campaign speech, judicial conduct, free speech, first amendment, constitutional law


This Article is in two parts. The first part demonstrates that the ABA-sponsored proscription of campaign speech by judicial candidates violates the first amendment to the United States Constitution. The rule substantially limits the availability to the electorate of information about candidates for judicial office. In so doing, the rule violates a central purpose of the first amendment's protection for speech: to assure the free flow of information about government officials to the voters who select them. The stated rationale behind the ABA restriction on speech is that it protects judicial impartiality and enhances the appearance of impartiality of judges. But there is no evidence that free and open campaign debate diminishes judicial impartiality or the appearance of impartiality. The rationale behind the rule does not withstand scrutiny and cannot justify a restriction on the exercise of activities protected by the first amendment. The second part of the Article demonstrates the effect of the ABA's restrictions on campaign speech on the the issue of how judges should be selected. Whether judges should be elected or appointed has been the subject of substantial debate. The ABA endorses selection of judges by appointment under the Missouri Plan. Under that plan, judges are appointed from a list of candidates selected or reviewed by a committee made up of attorneys either exclusively or in combination with laymen.


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