Judicial codes of ethics have long prohibited judges from publicly speaking about pending cases. Responding to “an increase in attacks on judges’ judicial independence,” one state has amended its judicial code to permit judges to comment about the procedural, factual, or legal basis of a decision when criticism of the decision becomes the focus of a judicial campaign or recall election. ABA Section of Litigation leaders suggest that the new provision strikes a balance between protecting an individual judge’s First Amendment rights and the public concern that a judge’s speech could impact the outcome or fairness of a pending proceeding.
New Judicial Canons Issued
Effective July 1, 2020, the Supreme Court of California amended Canon 3B(9) of the California Code of Judicial Ethics relating to impartial discharge of adjudicative duties. The amendment adds new language permitting any judge to speak publicly about a pending case, “provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.”