Judges Have First Amendment Rights Too

On April 3, 2013 a three judge panel of the United States Court of Appeals for the Third Circuit issued an opinion overturning the Virgin Islands Supreme Court’s conviction of Leon Kendall, a former judge of the Virgin Islands Superior Court, on three counts of criminal contempt based on an opinion Judge Kendall published which excoriated the Supreme Court and for his refusal to preside over a criminal trial as mandated by the Supreme Court

Judge Kendall, in unusually harsh language, had set out a point by point denunciation of a Supreme Court decision reversing a ruling made by Kendall. He wrote that the Court’s reasoning was “erroneous”, “improper”, “had no rational basis”, “lacked merit” and “made no sense.” He went on to state that the Supreme Court’s decision was issued to facilitate the misconduct of the prosecutor and to perpetuate a fraud on the Superior Court and was therefore “contrary to law and all notions of justice.” Kendall explained that because he could no longer “be a party to [the prosecutor’s] egregious misconduct” he was recusing himself from the case. The justices on the Court are former colleagues of Judge Kendall and his former employers (he had been counsel to the Court before becoming a judge), relationships which may have played a role in the personal nature of the rebukes and counter rebukes.

In his appeal, Judge Kendall argued that his judicial opinion was protected by Freedom of Speech and could not serve as the basis for criminal contempt. The Court of Appeals agreed and held that, (i) the First Amendment protects a sitting judge from being criminally punished for his opinion unless the opinion presents a clear and present danger of prejudicing ongoing proceedings, (ii) judge Kendall’s opinion did not pose such a threat.

In reversing the Virgin Islands Supreme Court, the Court of Appeals wrote that “as pure speech on public issues, a judicial opinion occupies the highest rung of the hierarchy of First Amendment values and is thus entitled to special protection.” The Court added that a “judge does not check his First Amendment rights at the courthouse door to be reclaimed at the expiration of his judicial tenure.”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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